United States v. Oscar Lynden Knowles , 180 F. App'x 110 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 9, 2006
No. 05-13889 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-14033-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR LYNDEN KNOWLES,
a.k.a. Lindy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 9, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Oscar Lynden Knowles appeals his sentence imposed after he pled guilty to
one count of conspiracy to possess with intent to distribute five kilograms or more
of cocaine in violation of 21 U.S.C. § 841(a). Knowles sets forth two grounds for
appeal, claiming (1) the district court plainly erred by failing to address him
personally and inquiring whether he wished to allocute, as required by Federal
Rule of Criminal Procedure 32(i)(4)(A)(ii); and (2) the district court clearly erred
by imposing a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1). We
affirm the district court.
I. DISCUSSION
A. Failure to address Knowles personally
“A district court's failure to address a defendant personally at sentencing is
reviewed for plain error . . . where the defendant failed to make a timely
objection.” United States v. Gerrow, 232 F.3d 831, 833 (11th Cir. 2000). “If the
district court fails to afford a defendant such an opportunity, but the defendant does
not object, this Court will remand only if ‘manifest injustice’ results from the
omission.” Id. at 834. “Our case law equates manifest injustice with the plain
error standard of review.” United States v. Quintana, 300 F.3d 1227, 1232 (11th
Cir. 2002). To demonstrate manifest injustice, a petitioner must show: (1) there
was error; (2) that was plain; (3) that affected his substantial rights; and (4) that
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affected the fundamental fairness of the proceedings. Id. In United States v.
Prouty, 303 F.3d 1249, 1253 (11th Cir. 2002), we held the district court committed
reversible plain error when it failed to give the defendant opportunity to allocute
and did not sentence him at the “lowest possible sentence within the applicable
guideline range.”
Before imposing a sentence, the district court must “address the defendant
personally in order to permit the defendant to speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). “This process permits a
defendant an opportunity to plead personally to the court for leniency in his
sentence by stating mitigating factors and to have that plea considered by the court
in determining the appropriate sentence.” Gerrow, 232 F.3d at 833 (internal
citations omitted). “The district court must clearly inform the defendant of his
allocution rights, leaving no room for doubt that the defendant has been issued a
personal invitation to speak prior to sentencing.” Id. (internal citations omitted).
We held no manifest injustice occurred where, before imposing the sentence, the
district court asked the defendant’s attorney whether his client wished to address
the court and counsel replied, “In light of your announcements, Your Honor, no. It
is not necessary,” and the defendant’s family members spoke on the defendant’s
behalf. Id. at 834. We also held no manifest injustice occurred where the
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defendant did not object to length of sentence and was sentenced at lowest end of
the mandatory guideline range. United States v. Rodriguez-Velasquez, 132 F.3d
698, 700 (11th Cir. 1998). When the defendant “offers nothing which, if conveyed
personally to the district court, could have resulted in a sentence lower than the
lowest end of the guideline range,” he is unable show he suffered “manifest
injustice.” Gerrow, 232 F.3d at 834.
The district court committed plain error by failing to address Knowles
personally, but Knowles did not carry his burden to show this error resulted in
manifest injustice. First, even after the Government questioned whether Knowles
had been afforded an opportunity to allocute, and the district court stated it thought
he had, neither Knowles nor his counsel argued the court was mistaken. Second,
right after this discussion between the court and the Government, the court asked
Knowles’ attorney whether there was “anything further,” and Knowles’ counsel
answered: “No, Your Honor.” Third, numerous character witnesses and Knowles’
counsel spoke on Knowles’ behalf and asked the court for leniency. Fourth, the
court imposed a sentence below the advisory Guidelines range based in part on
Knowles’ family statements. Finally, there is nothing in the record indicating had
Knowles addressed the court personally, apologized, and accepted responsibility
for his actions, as he claims he would have, he would have received a shorter
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sentence. The court had already granted a two-level reduction for acceptance of
responsibility and departed from the advisory Guidelines range because of
Knowles’ family pleas for mercy. Thus, the record reveals Knowles failed to carry
his burden of proof that manifest injustice resulted from the district court’s error.
B. Firearm enhancement
We review a district court’s finding of fact under U.S.S.G. § 2D1.1(b)(1) for
clear error, and the application of the Guidelines to those facts de novo. United
States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995). Section 2D1.1(b) of the Guidelines,
which sets out specific offense characteristics pertaining to drug offenses, provides
a two-level increase in the base offense level “if a dangerous weapon (including
firearm) was possessed.” The commentary provides “[t]he adjustment should be
applied if the weapon was present, unless it was clearly improbable that the
weapon was connected with the offense.” U.S.S.G. § 2D1.1, comment. (n.3). We
have held “once the Government has shown proximity of the firearm to the site of
the charged offense, the evidentiary burden shifts to the defense to demonstrate
that a connection between the weapon and the offense is ‘clearly improbable.’”
Hall, 46 F.3d at 63. We held the enhancement was justified based on the proximity
of a handgun to several drug-related objects in the same house where conversations
about marijuana importation occurred. Id.5
The district court did not clearly err by imposing a two-level firearms
enhancement. The record revealed Knowles conducted drug transactions at his
Coral Springs and Fort Lauderdale residences, where the guns were found. It is
also undisputed that Knowles arranged to make deliveries of cocaine at his Coral
Springs residence and that he stored cocaine there. Thus, the evidence reveals the
presence of firearms in the residences where Knowles conducted his drug
transactions. Knowles failed to present any evidence indicating the firearms were
not connected to the charged offense. Contrary to Knowles’ argument, nothing in
the record demonstrates the drug transaction at his Coral Springs residence took
place in the kitchen, and not in the bedroom, where the firearms were found.
Further, the fact the guns may have been in a different room of the same house is
not enough to show clear error. Thus, Knowles failed to show it was “clearly
improbable” there was a connection between the firearms and drug activities.
Accordingly, the district court did not clearly err by holding Knowles responsible
for the possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
II. CONCLUSION
The district court committed plain error by failing to address Knowles
personally, but Knowles did not carry his burden to show this error resulted in
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manifest injustice. Additionally, the district court did not clearly err by holding
Knowles responsible for the possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
AFFIRMED.
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