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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14707
Non-Argument Calendar
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D.C. Docket No. 3:07-cr-00136-LC-EMT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO U. AKEL,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Florida
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(September 11, 2019)
Before WILSON, EDMONDSON, and HULL, Circuit Judges.
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PER CURIAM:
Antonio Akel, a federal prisoner proceeding pro se, 1 appeals the district
court’s resentencing order and the district court’s denial of several motions related
to Akel’s resentencing and post-conviction proceedings. No reversible error has
been shown; we affirm. 2
In 2008, Akel was convicted by a jury of conspiracy to distribute drugs in
violation of
21 U.S.C. §§ 841(a)(1), 846 (Count 1); possession of a controlled
substance with intent to distribute in violation of
21 U.S.C. § 841(b)(1)(D) (Count
2); and being a felon in possession of a firearm in violation of
18 U.S.C. §§
922(g)(1), 924(a)(2), (e) (Count 7). The district court sentenced Akel to a term of
480 months’ imprisonment on each count, to run concurrently. Akel’s convictions
and total sentence were affirmed on direct appeal. See United States v. Akel, 337
F. App’x 843 (11th Cir. 2009) (unpublished).
In 2011, Akel filed a
28 U.S.C. § 2255 motion to vacate. The district court
denied the motion, and we denied Akel’s motion for a certificate of appealability
(“COA”). In July 2017 -- on remand from the Supreme Court -- we vacated the
1
We construe liberally pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263
(11th Cir. 1998).
2
Akel’s motion to certify questions to the United States Supreme Court is DENIED.
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district court’s denial of Akel’s section 2255 motion and remanded “for the district
court to reconsider the sentence on Count 7 in light of Mathis [v. United States,
136 S. Ct. 2243 (2016)].”
On remand, the district court determined that Akel no longer qualified as an
armed career offender after Mathis. The district court thus resentenced Akel
(without the career offender enhancement) to 120 months’ imprisonment on Count
7.
The district court also recognized and corrected a jurisdictional error in
Akel’s sentence on Count 2. The district court explained that the presentence
investigation report (“PSI”) stated incorrectly that Akel had been convicted “as
charged” in Count 2 of the superseding indictment of possession with intent to
distribute both cocaine and marijuana, in violation of
21 U.S.C. §§ 841(b)(1)(B)(ii)
and 841(b)(1)(D). The jury found, however, that the offense charged in Count 2
involved only marijuana and no cocaine. Akel’s sentence on Count 2 was thus
subject to a statutory maximum sentence of 60 months.
The district court entered an amended judgment sentencing Akel to 480
months’ imprisonment on Count 1, 60 months’ imprisonment on Count 2, and 120
months’ imprisonment on Count 7, to be served concurrently. The district court
denied the remainder of Akel’s section 2255 motion.
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I. Resentencing Issues
On appeal, Akel contends that the district court erred in failing to vacate his
total sentence and to resentence him on all counts. Akel also appeals the district
court’s denial of Akel’s pro se motions (1) “to amend in light of the ‘new facts’
unveiled by the district court” in the resentencing order and (2) to void the
resentencing order as premature.
We first reject Akel’s argument that the district court should have
resentenced Akel on all counts of conviction. We remanded this case to the district
court solely for the district court to consider Akel’s sentence on Count 7 in the
light of Mathis. When -- as in this case -- “the appellate court issues a limited
mandate . . . the trial court is restricted in the range of issues it may consider on
remand.” See United States v. Davis,
329 F.3d 1250, 1252 (11th Cir. 2003). On
remand, however, the district court also recognized that Akel had identified a
jurisdictional error in his sentence on Count 2. Because lack of jurisdiction may be
raised at any time, the district court had authority to correct Akel’s sentence on
Count 2 -- even though that issue fell outside the scope of our limited remand. See
United States v. Giraldo-Prado,
150 F.3d 1328, 1329 (11th Cir. 1998). But given
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the procedural posture of this case, the district court committed no error in
declining to also reconsider Akel’s sentence on Count 1.
Nor did the district court err in denying Akel’s motion to amend the
resentencing order in the light of “new facts,” in which Akel sought resentencing
on all counts. In his motion, Akel argued that the error contained in the PSI also
affected the base offense level underlying Akel’s sentence on Count 1. In
calculating the drug quantity for which Akel was accountable, the PSI included --
mistakenly -- the quantity of cocaine charged in Count 2 despite the jury’s finding
that no cocaine was involved in the offense. As a result, the PSI concluded that
Akel was accountable for a total converted drug weight of 1,594.85 kilograms of
marijuana: without the cocaine alleged in Count 2, the total converted drug weight
would have been 1,396.19 kilograms. Because Akel would have been assigned a
base offense level of 32 using either drug quantity, the error in the PSI had no
impact on Akel’s guidelines sentence for Count 1. See U.S.S.G. § 2D1.1(c)(4)
(assigning a base offense level of 32 to drug offenses involving at least 1000
kilograms but less than 3000 kilograms of marijuana).
The district court also denied correctly Akel’s motion to void the
resentencing order as premature. On remand and before resentencing, the district
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court ordered the parties to “brief the applicability of Mathis to Defendant’s
sentence on Count Seven.” The district court’s order contained this language:
Accordingly, it is ORDERED:
1 Within TWENTY-ONE (21) DAYS from the date of this
order, the Government shall file a supplemental brief
addressing the applicability of Mathis to Defendant’s sentence
on Count Seven, as set forth herein.
2 Defendant may file a reply within TWENTY-ONE (21) DAYS
from the date of the Government’s response.
The government filed its supplemental brief in accordance with the district
court’s order. Akel filed his supplemental brief on the same day that the
government filed its brief. Having heard from both sides (briefing from both
parties), the district court committed no error then in proceeding to rule on the
Mathis issue and to enter its resentencing order. Akel was not required to use all
the time he was allowed to file a brief. And nothing in the district court’s order
suggested Akel could or permitted Akel to file more than one brief. That Akel
might have misunderstood the district court’s express order about supplemental
briefing did not render the district court’s judgment premature, once the court had
heard from both sides. The sentencing order’s timing did not actually clash with
the earlier briefing order’s terms. We see no reversible error.
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Akel later -- after the sentencing order had issued -- submitted a second brief
in “reply” to the government’s supplemental Mathis brief. Akel’s second brief
presented no new arguments: each of the arguments had either been raised in
Akel’s first brief or already been addressed by the district court’s resentencing
order. Thus, any error that might have occurred in the timing of the supplemental
briefing and the district court’s resentencing order would have been harmless.
II. Recusal Issues
Akel also appeals the district court’s orders (1) denying Akel’s pro se
motion to recuse the district court judge and (2) denying Akel’s motion for
reconsideration of that order.
We review for abuse of discretion the district court’s rulings on a
defendant’s motions for recusal and for reconsideration. See United States v.
Bailey,
175 F.3d 966, 968 (11th Cir. 1999) (motion for recusal); Wilchombe v.
TeeVee Toons, Inc.,
555 F.3d 949, 957 (11th Cir. 2009) (motion for
reconsideration). We will affirm a judge’s refusal to recuse unless “the
impropriety is clear and one which would be recognized by all objective,
reasonable persons.” Bailey,
175 F.3d at 968.
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A district court judge “shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned” or “[w]here he has a personal bias
or prejudice concerning a party.”
28 U.S.C. § 455(a), (b)(1). “Bias sufficient to
disqualify a judge under section 455(a) and section 455(b)(1) must stem from
extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias and
prejudice that it unfairly prejudices one of the parties.” Bailey,
175 F.3d at 968
(quotations omitted). Rulings adverse to a party generally do not constitute
pervasive bias. Liteky v. United States,
510 U.S. 540, 555 (1994).
Akel first contends that the district court judge should have recused himself
because the judge purportedly berated members of the jury for finding Akel not
guilty on some charges. Akel first raised this argument in his October 2013 motion
to recuse. We rejected the argument on appeal, concluding that Akel’s
unsupported allegations -- based on double hearsay -- were insufficient to mandate
recusal. See United States v. Akel, 610 F. App’x 875 (11th Cir. 2015)
(unpublished). Akel offers no new admissible evidence to support his claim. This
argument is thus barred by the law-of-the-case doctrine. See Schiavo ex rel.
Schindler v. Schiavo,
403 F.3d 1289, 1291 (11th Cir. 2005) (“Under the law of the
case doctrine, the resolution of an issue decided at one stage of a case is binding at
later stages of the same case.”).
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Akel also contends that recusal was warranted based on (1) Akel’s criticism
of the district court judge; (2) Akel’s requests that the Department of Justice
investigate the district court; and (3) the district court judge’s issuance of several
rulings adverse to Akel. We disagree.
We are extremely slow to allow recusal to be triggered by what the party
seeking recusal has said or done. That approach -- looking much at the movant’s
own acts -- gives the moving party too much potential control over recusal.
Besides, we expect federal judges to have thick skins, anyway. Cf. Ungar v.
Sarafite,
376 U.S. 575, 584 (1964) (concluding no recusal was warranted based on
a party’s “contemptuous remarks” and personal criticism of the presiding judge:
“[w]e cannot assume that judges are so irascible and sensitive that they cannot
fairly and impartially deal with resistance to their authority or with highly charged
arguments about the soundness of their decision.”).
Akel has failed to demonstrate either bias stemming from extrajudicial
sources or that the district court judge’s orders showed such pervasive bias that he
was unfairly prejudiced. See Liteky,
510 U.S. at 555. Nor has Akel demonstrated
a clear impropriety that “would be recognized by all objective, reasonable
persons.” See Bailey,
175 F.3d at 968. We affirm the district court’s denial of
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Akel’s motion to recuse and the denial of Akel’s motion seeking reconsideration of
that order.
III. Remaining Issues
Akel contends that the district court erred in denying his motion to amend --
pursuant to Fed. R. Civ. P. 15(a) and (c) -- his January 2011 section 2255 motion.3
In his motion to amend, Akel sought to allege additional facts and argument in
support of his ineffective-assistance-of-counsel claims.
“We review a district court’s denial of a request for leave to amend a § 2255
motion for abuse of discretion.” Farris v. United States,
333 F.3d 1211, 1214 (11th
Cir. 2003).
The district court committed no abuse of discretion in denying Akel’s
motion to amend: the motion was filed after the district court entered judgment
denying Akel’s section 2255 motion. Rule 15 does not allow for post-judgment
amendment of pleadings in this case. See Fed. R. Civ. P. 15; Jacobs v. Tempur-
Pedic Int’l, Inc.,
626 F.3d 1327, 1344-45 (11th Cir. 2010) (“Rule 15(a), by its plain
3
To the extent Akel seeks to challenge the denial of claims raised in his section 2255, those
claims are outside the scope of this appeal. Neither this Court nor the district court has granted
Akel a COA on these issues.
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language, governs amendment of pleadings before judgment is entered; it has no
application after judgment is entered.”). Because there was no pending section
2255 motion in the district court, Akel’s “motion to amend” could correctly be
construed instead as an unauthorized second or successive section 2255 motion.
See Hubbard v. Campbell,
379 F.3d 1245, 1246-47 (11th Cir. 2004) (concluding
that the district court lacked subject-matter jurisdiction to consider petitioner’s
motion to amend his
28 U.S.C. § 2254 petition -- filed after final judgment had
been entered against him on the original petition -- explaining that the motion was
really a successive habeas application).
We also reject Akel’s argument that the district court failed to comply with
Danley v. Allen,
480 F.3d 1090, 1091 (11th Cir. 2007). The district court’s
explanations in the pertinent orders were sufficient to allow for meaningful
appellate review.
AFFIRMED.
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