United States v. Anthony Reid , 256 F. App'x 317 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 28, 2007
No. 06-16029 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00097-CR-TWT-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY REID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 28, 2007)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Anthony Reid appeals his convictions and sentences for conspiracy to
possess and possession with intent to distribute heroin, in violation of 21 U.S.C.
§§ 846 and 841, respectively. After a thorough review of the record, we affirm.
I. Background
Reid was charged along with Chinedu Odimgbe with conspiracy to possess
and possession with intent to distribute heroin. Reid entered a guilty plea to both
counts without a plea agreement. According to the factual proffer at the plea
hearing, Reid and Odimgbe engaged in a drug transaction with a confidential
informant, selling the informant 200 grams of heroin in exchange for $20,000. The
transaction was recorded by the informant. Reid explained that he was working as
security for Odimgbe at Odimgbe’s direction, but that he was aware of the
transaction. He otherwise admitted that the factual proffer was correct. Reid stated
that he understood the charges against him and his right to a trial, and that he was
pleading guilty freely and voluntarily. Defense counsel stated that she had
explained to Reid that he would be debriefed by the government and could receive
a favorable recommendation upon his cooperation. Counsel further stated that she
had no doubt as to Reid’s competency to enter a plea. The court confirmed that
Reid understood that the sentencing determination would be left to the court. After
confirming that Reid understood his rights and the nature of the charges against
him, the court adjudicated Reid guilty.
Thereafter, Reid notified the court that he wished to withdraw his guilty
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plea, alleging that counsel has mislead him and coerced him into pleading guilty,
and he maintained his innocence. He asserted that he had requested that counsel
hire an expert to analyze the audiotape from the transaction, but that counsel had
refused. The court conducted a hearing into the allegations, at which Reid testified
to the coercion. Counsel disputed the allegations, although she admitted that she
put “a little pressure” on Reid to make a decision whether or not to enter the plea.
She explained that the cost of an expert was prohibitive, especially in the absence
of any reason to believe the tape was fabricated. The government argued that it
would be prejudiced should the court permit Reid to withdraw his plea. The court
denied Reid’s motion to withdraw his plea.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 26 given the amount of drugs involved. The
probation officer then recommended adding a two-level enhancement for
leadership role, U.S.S.G. § 3B1.1(c), and denying reductions under the safety-
valve provision, § 2D1.1(b)(7), and for acceptance of responsibility, § 3E1.1. With
a total offense level of 28, and a criminal history category I, the resulting guideline
range was 78 to 97 months; Reid also faced a 60-month mandatory minimum.
Reid objected to the calculations.
At sentencing, the court heard testimony from several witnesses, including
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Reid’s codefendant. According to Odimgbe, Reid brought the heroin to Atlanta,
negotiated the sale, and instructed Odimgbe to retrieve the drugs from the van
where they were kept. Odimgbe testified that he acted at Reid’s direction.
Reid also testified, contradicting Odimgbe’s version of the transaction. The
court denied the safety-valve and acceptance-of-responsibility reductions and
applied the leadership enhancement, concluding that Reid was not truthful in his
testimony. The court sentenced Reid to 85 months’ imprisonment, explaining that
it reached this sentence under 18 U.S.C. § 3553(a) based on Reid’s false testimony
and the degree and extent of his criminal conduct. Reid now appeals, challenging
(1) whether the court should have permitted him to withdraw his plea; (2) whether
the court should have directed defense counsel to obtain an expert to analyze the
audiotape of the drug deal; (3) whether he was entitled to the safety-valve
reduction; (4) whether the court improperly applied the leadership enhancement;
(5) whether he was entitled to a reduction for acceptance of responsibility; and
(6) whether the sentence imposed was reasonable.
III. Discussion
1. Withdrawal of Plea
We review the denial of a request to withdraw a guilty plea for an abuse of
discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). Thus,
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in reviewing a district court’s refusal to permit the withdrawal of a guilty plea, we
defer to the court’s application of the criteria set forth below, and we will reverse
only if the court’s ultimate conclusion is arbitrary or unreasonable. Id. at 1318.
Pursuant to Fed. R. Crim. P. 11(d), a court may permit a defendant to
withdraw his plea before the court imposes a sentence for a fair and just reason.
Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant has shown a fair
and just reason, the court evaluates the totality of the circumstances, including:
(1) whether the defendant had close assistance of counsel; (2) whether his plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and
(4) whether the government would be prejudiced by withdrawal. Freixas, 332 F.3d
at 1318 (citing United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1988)).
Further, the good faith, credibility, and weight of a defendant’s assertions in
support of his motion to withdraw are left to the district court to decide. Buckles,
843 F.2d at 472. Moreover, [t]here is a strong presumption that statements made
during the [plea] colloquy are true. United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994). Consequently, a defendant bears a heavy burden to show his
statements [under oath] were false. United States v. Rogers, 848 F.2d 166, 168
(11th Cir. 1988). We have also noted that a defendant cannot complain of coercion
where his attorney used his best professional judgment to recommend that the
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defendant plead guilty. Buckles, 843 F.2d at 472.
Here, we conclude that Reid did not meet the heavy burden of showing a fair
and just reason for withdrawal of his guilty plea. The court properly found that:
(1) Reid had close assistance of counsel in making his guilty plea; (2) the plea was
knowing, voluntary, and free from coercion; (3) the government would be
prejudiced by having to prepare for trial again if Reid were allowed to withdraw
his plea; and (4) the interests of justice would not be served by the withdrawal.
Accordingly, the district court did not abuse its discretion by not allowing Reid to
withdraw his guilty plea.
2. Expert
Because Reid did not raise this issue in the district court, we review for plain
error. United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). To prevail
under the plain error standard, the appellant must show that “(1) an error occurred;
(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously
affected the fairness of the judicial proceedings.” Id.It is not the role of the district court to direct an attorney to make strategic
trial decisions; trial tactics are for defense counsel to formulate. Blanco v.
Singletary, 943 F.2d 1477, 1495 (11th Cir. 1991) (habeas context). Accordingly,
“unless there are exceptional circumstances or unless the attorney is so
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incompetent as to deprive the defendant of the right to effective assistance of
counsel,” the attorney must be able to determine questions of strategy during trial,
and her decisions “must be binding.” Id. at n. 71 (internal citations and quotations
omitted). A district court “overreache[s] its authority and infringe[s] upon the
[attorney-client] relationship” when it directs trial strategy. Id. at 1495.
Additionally, while a defendant may be entitled to attack a conviction when
funds to retain an expert are withheld, “[a] defendant must show the trial court that
there exists a reasonable probability both that an expert would be of assistance to
the defense and that the denial of expert assistance would result in a fundamentally
unfair trial.” Messer v. Kemp, 831 F.2d 946, 960 (11th Cir. 1987) (habeas
context).
Here, defense counsel made a strategic decision not to retain an expert to
analyze the audiotape and testify to the findings, and it was not the district court’s
role to direct her otherwise, particularly when there was no reason to question the
authenticity of the audiotape. Moreover, even if the district court had erred, this
would not satisfy the plain error standard because the error did not affect Reid’s
substantial rights or seriously affect the fairness of the judicial proceeding.
3. Safety-valve
We review a district court’s safety-valve fact-finding for clear error. United
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States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). Under the safety-valve
provision, a district court shall impose a sentence without regard to any statutory
mandatory minimum if a defendant convicted of certain drug crimes satisfies
certain criteria, U.S.S.G. § 5C1.2, and also give a reduction in the defendant’s
offense level, U.S.S.G. § 2D1.1(b)(6). A defendant has the burden of proving his
eligibility for this relief. Cruz, 106 F.3d at 1557. Section 5C1.2(5) “requires a
defendant to both truthfully and fully disclose information within [his] knowledge
relating to the crime for which [he] is being sentenced.” United States v. Figueroa,
199 F.3d 1281, 1283 (11th Cir. 2000). A district court cannot apply the reduction
if it determines that the defendant withheld or misrepresented information, even if
the information would not have aided further investigation or prosecution if
properly disclosed. See id. Moreover, a defendant who receives an enhancement
for role in the offense is not entitled to receive the reduction. U.S.S.G.
§ 5C1.2(a)(4), comment. (n.5).
Here, the district court properly refused to apply the reduction because it
concluded that Reid was not truthful in his interviews with the government or
when he testified during sentencing, and because it found that Reid directed his
accomplice’s actions.
4. Role Enhancement
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We review a district court’s decision to enhance a defendant’s offense level
due to his aggravating role for clear error. United States v. Phillips, 287 F.3d
1053, 1055 (11th Cir. 2002). The guidelines provide for a two-level increase “[i]f
the defendant was an organizer, leader, manager, or supervisor in any criminal
activity.” U.S.S.G. § 3B1.1(c). In distinguishing a leadership role, the district
court should consider “the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1,
comment. (n.4). “[T]he assertion of control or influence over only one individual
is enough to support a § 3B1.1(c) enhancement.” United States v. Jiminez, 224
F.3d 1243, 1251 (11th Cir. 2000). Moreover, responsibility for most of the
preparation, planning, and details of the criminal operation is sufficient to support
a § 3B1.1(c) enhancement. Phillips, 287 F.3d at 1058.
Here, the district court did not clearly err by assessing an aggravating-role
enhancement because it found that Reid was the source of the heroin and had
directed Odimgbe’s actions during the offense.
5. Acceptance of Responsibility
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We review a district court’s factual findings concerning a reduction for
acceptance of responsibility for clear error. United States v. Williams, 408 F.3d
745, 756 (11th Cir. 2005). “The defendant bears the burden of clearly
demonstrating acceptance of responsibility and must present more than just a guilty
plea.” See United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999). “A
district court’s determination that a defendant is not entitled to [a reduction for]
acceptance of responsibility will not be set aside unless the facts in the record
clearly establish that a defendant has accepted personal responsibility.” Id.A defendant is entitled to a two-level reduction if he “clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). In determining
whether a defendant qualifies for the reduction, a district court may consider the
nature of the defendant’s legal challenges to his conviction and sentence, along
with the other circumstances of the case. United States v. Smith, 127 F.3d 987, 989
(11th Cir. 1997) (en banc). Factual objections to the sentence that amount to a
denial of factual guilt are inconsistent with acceptance of responsibility. Id.Here, the district court properly concluded that Reid’s testimony during the
sentencing hearing was false and argumentative. Although Reid pleaded guilty to
participating in the drug transaction, he did not accept full responsibility for his
role in the offense. Accordingly, the district court did not clearly err in finding that
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Reid did not meet his burden of establishing that he had accepted personal
responsibility.
6. Reasonableness of Sentence
We review the final sentence imposed by the district court for
reasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). When
evaluating the reasonableness of a sentence, we consider the factors outlined in
18 U.S.C. § 3553(a) and the district court’s reasons for imposing the particular
sentence. United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006), pet.
for cert. dismissed, 127 S.Ct. 3040 (2007). Unreasonableness may be procedural,
when the court’s procedure does not follow Booker’s1 requirements, or substantive.
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).
In order to impose a procedurally reasonable sentence, the district court must
first correctly calculate the guidelines. Talley, 431 F.3d at 786. Second, the
district court must consider the following factors, set forth in § 3553(a), to
determine a reasonable sentence: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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public; (5) the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to
provide restitution to victims. Id. (citing 18 U.S.C. § 3553(a)). However, the
court is not required to discuss each § 3553(a) factor, and “an acknowledgment by
the district court that it has considered the defendant’s arguments and the factors
in § 3553(a) is sufficient under Booker.” Talley, 431 F.3d at 786. In fact, this
court recently held that a district court need not provide a lengthy explanation
when it imposes a guidelines sentence in a “typical case.” United States v. Agbai,
497 F.3d 1226, 1229-1230 (11th Cir. 2007) (citing Rita v. United States, 551 U.S.
___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Rather, the district court need only
set forth enough to show that it “considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Id. at 1230.
Here, the district court explicitly considered Reid’s denial under oath of the
degree and extent of his criminal responsibility, and “all the facts and
circumstances of the case.” It further considered the § 3553(a) sentencing factors
and stated that it was sentencing Reid in the middle of the guideline range because
of the aggravating factors in the case that were not taken into account in the
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calculation of the guideline range. We agree with the district court that the
sentence imposed was reasonable.
III. Conclusion
For the foregoing reasons, we AFFIRM Reid’s convictions and sentences.
AFFIRMED.
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