United States v. Jerryll Anthony Flint , 142 F. App'x 435 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 2, 2005
No. 05-10272 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20203-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRYLL ANTHONY FLINT,
a.k.a. Tony,
a.k.a. Slick,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 2, 2005)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Jerryll Anthony Flint appeals his conviction and sentence of 262 months’
imprisonment for conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846. After review, we conclude that the government did
not breach the plea agreement and that Flint’s sentence appeal waiver is
enforceable.
I. BACKGROUND
Pursuant to a written plea agreement, Flint pled guilty to conspiracy to
possess with intent to distribute 5 kilograms of cocaine and 50 grams or more of
cocaine base (crack).
A. The Plea Agreement
As part of the plea agreement, the government expressly reserved the right to
inform the district court regarding all facts pertinent to Flint’s sentencing,
including Flint’s background, as follows:
The Office of the United States Attorney for the Southern District of
Florida (hereinafter “Office”) reserves the right to inform the court
and the probation office of all facts pertinent to the sentencing
process, including all relevant information concerning the offenses
committed, whether charged or not, as well as concerning the
defendant and the defendant’s background.
As part of the plea agreement, the government agreed to make these
recommendations.
10. The United States and the defendant agree that, although not
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binding on the probation office or the court, they will jointly
recommend that the court make the following findings and
conclusions as to the sentence to be imposed.
(a). Quantity of narcotics: That the quantity of controlled substance
involved in the offense, for purpose of Section 2D1.1(a) and (c) of the
Sentencing Guidelines and is between at least 5 kilograms but less
than 15 kilograms of cocaine, that would result in a base offense level
of 32.
(b). No Role Adjustment: That the defendant should not receive an
adjustment for role in the offense pursuant to Sections 3B1.1 or 3B1.2
of the Sentencing Guidelines.
(c). No other basis for downward departure: That the defendant agrees
that there is no other basis for a downward departure.
The government also agreed to recommend to the district court that Flint
receive a 3-level reduction for acceptance of responsibility, pursuant to U.S.S.G. §
3E1.1, and that Flint be sentenced at the low end of the Guidelines range.
The plea agreement further stated that “[s]ubject only to the express terms of
any agreed-upon sentencing recommendations contained in this agreement, this
Office further reserves the right to make any recommendation as to the quality and
quantity of punishment.”
The plea agreement also contained a sentence-appeal waiver provision,
which stated that Flint waived his right to appeal his sentence, except for (1) an
upward departure by the sentencing judge, (2) a sentence above the statutory
maximum, or (3) an appeal by the government. The appeal waiver expressly
provided that Flint waived his right “to appeal the sentence on the ground that the
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sentencing guidelines are in any respect unconstitutional, or on the grounds that
any fact found by the [c]ourt at sentencing was not alleged in the indictment,
admitted by [him], found by a jury, or found beyond a reasonable doubt.”
B. Plea Colloquy
At the plea colloquy, Flint indicated that he had discussed the plea
agreement with his attorney and understood its terms. The district court then
informed Flint that the United States Supreme Court recently decided Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district court explained to
Flint that Blakely could impact his case, but, under his plea agreement, he was
waiving any argument that he could raise as to the constitutionality of the
Guidelines. Flint indicated that he understood that he was waiving any rights that
he had under Blakely.
The district court noted that the parties had agreed that the amount of drugs
attributable to Flint would result in a base offense level of 32. Further, the district
court found that his plea was knowingly and voluntarily made and adjudicated him
guilty.
C. PSI and Sentencing
The Presentence Investigation Report (“PSI”) recommended that Flint’s base
offense level was 32, pursuant to U.S.S.G. § 2D1.1(c)(4), and that Flint was a
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career offender because he had at least two prior felony convictions of either a
crime of violence or a controlled substance offense. Because Flint’s offense of
conviction had a statutory maximum sentence of life imprisonment, his enhanced
offense level was 37 and his criminal history category VI, pursuant to U.S.S.G. §
4B1.1(b).1
The PSI then applied a 3-level reduction for acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1. With a total offense level of 34 and a criminal
history category of VI, Flint’s Guidelines range was 262-327 months’
imprisonment. Flint did not object to any of the offense-level calculations.
At the sentencing hearing, the government noted that the PSI classified Flint
as a career offender and that the government did not enter into any agreement with
the defendant regarding the career offender enhancement. Flint responded that,
since the parties had agreed that his base offense level should be 32, the
government was trying to argue against the plea agreement by asking the district
court to sentence him as a career offender. Flint also asserted that he should have
1
U.S.S.G. § 4B1.1(b) states:
Except as provided in subsection (c), if the offense level for a career offender
from the table in this subsection is greater than the offense level otherwise
applicable, the offense level from the table in this subsection shall apply. A
career offender’s criminal history category in every case under this subsection
shall be Category VI.
Offense Statutory Maximum Offense Level
(A) Life 37
U.S.S.G. § 4B1.1(b).
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received notice that he would be subject to the career offender enhancement to his
offense level.
The district court overruled Flint’s objection, concluding the government did
not breach the plea agreement. The district court further indicated that it was
unaware of any notice requirements for application of the career offender
provision. After adopting the findings of the PSI, the district court sentenced Flint
to 262 months’ imprisonment.
II. DISCUSSION
A. No Breach of Plea Agreement
On appeal, Flint first argues that because (1) the government agreed to
recommend to the district court that he receive a base offense level of 32, and (2)
because the plea agreement did not contain any provision for enhancing his
sentence, the government breached the plea agreement by urging the district court
to sentence him as a career offender.2
“Whether the government violated the [plea] agreement is judged according
to the defendant’s reasonable understanding at the time he entered the plea.”
United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If the government
disputes the defendant’s understanding, however, we determine the terms of the
2
We review de novo the question of whether the government has breached a plea
agreement. United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
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agreement according to objective standards. Id.
We conclude that the government clearly did not breach the plea agreement.
First, the plea agreement did not contain any agreement as to Flint’s total offense
level or his criminal history category. The plea agreement simply stated that the
parties agreed on the drug quantity, which “would result in a base offense level of
32.” (Emphasis added). Further, the government expressly reserved the right to
inform the district court regarding all facts pertinent to Flint’s sentencing,
including Flint’s background. The government also expressly reserved the right to
make other sentencing recommendations subject only to its drug quantity, role
adjustment, and downward departure recommendations. Thus, the government did
not breach the terms of the plea agreement by advocating that the district court
sentence Flint as a career offender.
B. Booker Claim
Flint also argues that, because the district court applied the pre-United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005) mandatory Guidelines scheme, his
case should be remanded for resentencing.
“[T]he right to appeal a sentence based on Apprendi/Booker grounds can be
waived in a plea agreement.” United States v. Rubbo, 396 F.3d 1330, 1335 (11th
Cir. 2005); United States v. Grinard-Henry, 399 F.3d 1294, 1297 (11th Cir.), cert.
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denied, 125 S. Ct. 2279 (2005). We will enforce a sentence-appeal waiver
contained in a plea agreement where the government demonstrates either that: “(1)
the district court specifically questioned the defendant about the waiver during the
plea colloquy, or (2) the record clearly shows that the defendant otherwise
understood the full significance of the waiver.” United States v. Benitez-Zapata,
131 F.3d 1444, 1446 (11th Cir. 1997).3
In this case, the district court specifically questioned Flint about the waiver
during the plea colloquy, and none of the exceptions to the waiver applies to this
case. Thus, we will enforce Flint’s knowing and voluntary appeal waiver.
Because Flint’s plea agreement contained a valid sentence-appeal waiver, he has
waived the right to raise a Booker argument on appeal.
Accordingly, we affirm Flint’s conviction and reject his appeal as to his
sentence challenge.4
AFFIRMED.
3
“[T]he determination of whether a defendant effectively–that is knowingly and
voluntarily– waived his right to appeal his sentence is a question of law that this court reviews de
novo.” United States v. Bushert, 997 F.2d 1343, 1352 (11 Cir. 1993).
4
Flint also maintains that his case should be remanded for resentencing because the
district court now has the discretion to grant a departure based on the substantial assistance that
he provided to the government. Because Flint signed a valid sentence-appeal waiver, this
argument also is meritless.
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