United States v. Shawn A. Bailey , 433 F. App'x 807 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14892 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cr-10002-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
SHAWN A. BAILEY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 8, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Shawn Bailey appeals his convictions and 240-month total sentence for
distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); possession with
intent to distribute cocaine, in violation of § 841(a)(1); and possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Bailey raises three issues on appeal. First, he argues that the district court erred
when it denied his motion to suppress the evidence seized from his apartment for
lack of probable cause because the search warrant affidavit contained
misstatements that were made intentionally or with reckless disregard, and the
affidavit’s remaining content did not support a finding of probable cause. Second,
Bailey argues that the district court erred in determining that his prior conviction
for escape was a crime of violence, and he was therefore wrongly sentenced as a
career offender. Finally, Bailey argues that his 240-month sentence was
unreasonable because the district court did not give sufficient justification for the
sentence, and the sentence was greater than necessary to comply with the goals of
sentencing.
I.
“Review of a district court’s denial of a motion to suppress is a mixed
question of law and fact.” United States v. Delancy, 502 F.3d 1297, 1304 (11th
Cir. 2007). We review the district court’s factual findings for clear error and its
interpretation and application of the law de novo. Id. We construe all facts in the
light most favorable to the prevailing party in the district court. Id.2
For a search warrant to be valid, it must be supported by probable cause.
U.S. CONST., amend. IV. “Probable cause to support a search warrant exists when
the totality of the circumstances allow a conclusion that there is a fair probability
of finding contraband or evidence at a particular location.” United States v.
Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). Accordingly, the search
warrant affidavit must “state facts sufficient to justify a conclusion that evidence
or contraband will probably be found at the premises to be searched.” United
States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (internal quotations
omitted). More specifically, the affidavit should establish “a connection between
the defendant and the residence to be searched and a link between the residence
and any criminal activity.” Id.Search warrant affidavits are presumptively valid. Franks v. Delaware, 438
U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978). A search warrant must be voided and
the fruits of the search excluded, however, if the search warrant affidavit
contained a false statement made knowingly and intentionally or with reckless
disregard for the truth, and the affidavit’s remaining content does not establish
probable cause. Id. at 155-56, 98 S.Ct. at 2676. Nevertheless, a warrant is valid
“when material that is the subject of the alleged falsity or reckless disregard is set
to one side, [and] there remains sufficient content in the warrant affidavit to
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support a finding of probable cause.” Id. at 171-72, 98 S.Ct. at 2684. Thus, a
defendant must show (1) “that the alleged misrepresentations or omissions were
knowingly or recklessly made” and (2) “that the result of excluding the alleged
misrepresentations and including the alleged omissions would have been a lack of
probable cause for issuance of the warrants.” United States v. Novaton, 271
F.3d 968, 986-87 (11th Cir. 2001).
The district court did not err in denying Bailey’s motion to suppress. Even
if the contested statements in the search warrant affidavit are incorrect, Bailey has
failed to provide proof that those misstatements were made intentionally or with
reckless disregard. Absent this proof, Bailey has not shown that the search
warrant lacked probable cause. Therefore, the district court was correct in denying
Bailey’s motion.
II.
We review de novo “whether a defendant’s prior conviction qualifies as a
‘crime of violence’ under the Sentencing Guidelines.” United States v. Harris, 586
F.3d 1283, 1284 (11th Cir. 2009). Cases addressing violent felonies under the
Armed Career Criminal Act (ACCA) are instructive in determining crimes of
violence under U.S.S.G. § 4B1.2, because the definitions for both terms are
virtually identical. Id. at 1285.
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To determine if a prior conviction is a qualifying offense for sentencing
enhancement purposes, we generally apply a categorical approach, looking no
further than the statute and judgment of conviction. United States v. Palomino
Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). However, when the law under
which a defendant has been convicted contains different statutory phrases, then the
judgment is ambiguous, and we apply a modified categorical approach. Id. “Under
this approach, a court may determine which statutory phrase was the basis for the
conviction by consulting a narrow universe of ‘Shepard documents’ that includes
any charging documents, the written plea agreement, the transcript of the plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented. Id. at 1337.
Subsequent to the submission of the parties’ briefs, we issued a decision
directly dealing with Bailey’s career offender issue. In United States v. Proch,
637 F.3d 1262 (11th Cir. 2011), we dealt with whether an escape conviction under
FLA. STAT. § 944.40, the same statute that Bailey was convicted under, qualified as
a predicate offense for armed career criminal classification. We first looked at the
charging document, which stated that the defendant “escaped while in lawful
custody of the county jail or while being transported to or from there.” Proch, 637
F.3d at 1266. We concluded that this information indicated that the defendant had
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been apprehended and was either at the jail or being transported to it when he
attempted to escape. Id.We then looked to whether the escape conviction constituted a violent
felony in order for it to be a qualifying offense. Id. We looked to the Florida
statute, which states: “Any prisoner confined in any prison, jail, private
correctional facility, road camp, or other penal institution, . . . working upon the
public roads, or being transported to or from a place of confinement who escapes
or attempts to escape from such confinement commits a felony of the second
degree . . . .” FLA. STAT. § 944.40. We determined that there were several separate
crimes enumerated in § 944.40, including: “(1) escape from jail; (2) escape from
custody while being transported to or from jail; (3) escape from a road camp;
(4) escape from custody while working upon the public roads; etc.” Proch, 637
F.3d at 1267. We then concluded that the charging document made it clear that
the predicate crime was either escape from jail or escape from custody while being
transported to or from jail. Id. at 1267-68. After looking at prior decisions from
this Circuit and other circuits, we held that, under the Florida statute, escape from
jail, or from custody while being transported to or from jail, is a violent felony
under the ACCA. Id. at 1268-69.
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Based on the charging document, Bailey’s conviction falls under one of the
two categories of the Florida statute dealt with in Proch. Because we have already
held that an escape conviction under one of those two categories is a crime of
violence, we are bound to hold that Bailey’s escape conviction is a crime of
violence. Therefore, the district court did not err in sentencing him as a career
offender.
III.
“[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008).
We review both the procedural and substantive reasonableness of a sentence for an
abuse of discretion. Id. at 1273 n.25.
In reviewing whether a sentence is reasonable, we must ensure, first, that
the district court did not commit a significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). “[T]he
sentencing judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
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legal decisionmaking authority.” United States v. Agbai, 497 F.3d 1226, 1230
(11th Cir. 2007) (citation and quotation omitted). However, the district court need
not discuss or explicitly state on the record each § 3553(a) factor. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). “Rather, an acknowledgment by the
district judge that he or she has considered the § 3553(a) factors will suffice.”
United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We must then
determine whether the sentence is substantively reasonable in light of the§ 3553(a)
factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The sentencing court shall impose
a sentence “sufficient, but not greater than necessary” to comply with the purposes
of sentencing set forth in § 3553(a)(2), namely, to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from further criminal conduct by the
defendant, and provide the defendant with needed educational training, vocational
training, medical care, or other correctional treatment in the most effective
manner. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must
also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
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need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
“The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “The weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court.” United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotations and alteration
omitted). We vacate a sentence only if “left with the definite and firm conviction
that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011) (quotation
omitted).
“[T]here is a range of reasonable sentences from which the district court
may choose.” Talley, 431 F.3d at 788. “[W]hen the district court imposes a
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sentence within the advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” Id. Also, the reasonableness of a sentence may be
indicated when the sentence imposed was well below the statutory maximum
sentence. See Gonzalez, 550 F.3d at 1324.
Bailey’s sentence was both procedurally and substantively reasonable. The
district court’s statement that it considered the statements of both parties, the
presentence investigation report, the advisory guidelines, and the § 3553(a) factors
provided sufficient explanation as to why it chose the sentence that it imposed,
and was, therefore, procedurally reasonable. Additionally, because Bailey’s
sentence was within the guidelines range and well below the statutory maximum
sentence, we expect it to be reasonable. Furthermore, Bailey’s history and
characteristic as a career offender, and the deterrence effect the sentence will have
on future criminal conduct, show that the sentence was not greater than necessary,
and therefore was substantively reasonable. Because Bailey’s sentence was
procedurally and substantively reasonable, the district court did not abuse its
discretion in sentencing Bailey to 240 months’ imprisonment.
AFFIRMED.1
1
Bailey’s request for oral argument is denied.
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