United States v. Willis ( 2023 )

Case: 22-30258 Document: 00516801231 Page: 1 Date Filed: 06/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 27, 2023
No. 22-30258 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Donta Willis,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:19-CR-43-1
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Before Jones, Clement, and Haynes, Circuit Judges.
Per Curiam: *
Donta Willis pled guilty to one count of possession with intent to
distribute methamphetamine. After calculating a sentencing range of 235 to
293 months under the United States Sentencing Guidelines, the district court
sentenced Willis to 264 months in prison. Because the district court adhered
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*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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to correct sentencing procedure, we AFFIRM the within-Guidelines
sentence.
I. Background
In January 2019, the Drug Enforcement Administration (“DEA”)
enlisted Louisiana State Police Trooper Matthew Titus to tail Willis, whom
the agency believed to be distributing meth out of Dallas. Officer Titus pulled
Willis over for following too closely behind another vehicle. Willis and his
passenger bolted on foot as soon as Titus began to conduct a pat down search.
The two were subdued a quarter-mile away, at which point officers found
77 grams of meth on Willis and 29 grams on the passenger. While Willis was
in police custody, the DEA searched his Shreveport, Louisiana residence
(pursuant to a warrant) and found 447 grams of meth, a stolen pistol, $2,400
in cash, and some ecstasy pills. The DEA confronted Willis with this
contraband, and based on his response, searched the residence again and
found an additional 295 grams of meth.
A federal grand jury returned a five-count indictment. Willis moved
to suppress the statements he made while in custody, and the DEA agreed
not to use those statements at trial. In two more motions to suppress, Willis
sought to exclude the meth found on his person following the traffic stop,
arguing that both the stop and the pat down violated his Fourth Amendment
rights. The district court denied both motions.
In September 2021, Willis, represented by counsel, pled guilty to one
count of possession with intent to distribute meth. The written factual basis
for the plea, which Willis signed, stated: “The total amount of
methamphetamine attributable to Willis, as well as any relevant conduct to
include additional methamphetamine and a firearm recovered from a
residence, will be determined at sentencing.” The first presentence
investigation report (“PSR”) calculated his final offense level at 35 based on
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the amount of drugs involved (853 grams of pure meth), his possession of a
firearm, his role in the offense, and his acceptance of responsibility. This
correlated to a recommended sentencing range of 168 to 210 months in
prison.
Willis objected to the PSR, arguing that he should be held accountable
only for the drugs found on his person at the traffic stop. The revised PSR
removed the three-level deduction for acceptance of responsibility because
Willis disputed relevant conduct. This increased the sentencing range to 235
to 293 months.
At sentencing, the district court agreed with the removal of the three
point reduction for acceptance of responsibility and sentenced Willis to
264 months in prison. The government upheld its end of the plea agreement
and dropped the remaining four counts. Willis timely appealed.
II. Discussion
A. Preservation of Claim for Appeal
As an initial matter, we hold that Willis failed to preserve the right to
appeal the denial of his pretrial motions to suppress. Thus, we do not reach
his Fourth Amendment claim.
By entering a plea of guilty, a defendant waives “any further objection
to evidence admitted pursuant to a district court’s denial of a motion to
suppress.” United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007),
superseded by rule on other grounds, Fed. R. Crim. P. 12. If a defendant
desires to “preserve the right to appeal a district court’s adverse ruling on a
pretrial motion,” Federal Rule of Criminal Procedure 11(a)(2) requires him
to enter a conditional plea “in writing and consented to by the prosecution
and the district court.” Id. “Rule 11(h) allows for variance from
Rule 11(a)(2)’s technical conditional plea requirements when the variance
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‘does not affect substantial rights.’” Id. (quoting Fed. R. Crim. P. 11(h)).
Such “harmless variances” have been excused where “the record clearly
indicates that the defendant intended to enter a conditional guilty plea, that
the defendant expressed the intention to appeal a particular pretrial ruling,
and that neither the government nor the district court opposed such a plea.”
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).
Willis concedes that the written plea agreement he signed was
unconditional. He argues, however, that he expressed his intention to appeal
the suppression rulings in his earlier counter plea agreement. That two-page,
handwritten document states under the heading “Defendant Obligations”
that “Defendant shall relinquish his rights to appeal” and under the heading
“Government Obligations” that the government shall “Sentence Defendant
based on 116.4 grams (Willis pocket), only.” Willis contends that this
“overwhelming[ly] indicates” his intention to enter a conditional guilty plea
if the government rejected his counteroffer.
The record evidence cited by Willis is insufficient to excuse
compliance with Rule 11(a). In United States v. Santiago, for example, this
court excused a “harmless variance” where the defendant expressly reserved
his right to appeal a motion to suppress at his re-arraignment hearing, and
neither the government nor the court expressed opposition. 410 F.3d 193,
197–98 (5th Cir. 2005). Also, in United States v. Fernandez, this court allowed
a variance where the government conceded that the defendant “reserved her
right to appeal the suppression issue,” although a conditional guilty plea was
absent from the record. 887 F.2d 564, 566 n.1 (5th Cir. 1989) (summary
calendar).
This case is more like United States v. Wise, where the defendant’s
written plea agreement contained no reservation of any kind, the district
court orally reviewed the terms of the unconditional plea agreement at the
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plea hearing, and both the defendant and his lawyer confirmed that there was
no other agreement between the defendant and the government. 179 F.3d
184, 186–87 (5th Cir. 1999). On appeal, this court refused to allow a
“harmless variance” from Rule 11’s requirements. Id.Here, the written plea agreement signed by Willis and his attorney was
expressly unconditional. (“No other agreement, understanding, promise, or
condition exists . . . .”); (“this plea agreement is a complete statement of the
parties’ plea agreement in this case”). Further, at Willis’s change of plea
hearing, the district court asked him whether “anyone made a promise to you
other than what’s contained in this plea agreement that led you to your
decision to plead guilty?” Willis replied, “No, sir.” The district court then
asked Willis’s attorney if any additional agreement existed between the
government and Willis, to which Willis’s attorney replied in the negative.
This record is void of any clear indication that Willis intended to preserve his
right to appeal the denials of his motions to suppress. Thus, we refuse to
reach Willis’s Fourth Amendment claim.
B. Sentencing
Willis also challenges his sentence of 264 months in prison as
procedurally unreasonable. 1 Specifically, he argues that the district court
erred by removing the three-point reduction for acceptance of responsibility.
“Whether a defendant is entitled to a downward adjustment for acceptance
of responsibility is . . . a factual determination. We will affirm a sentencing
court’s decision not to award a reduction . . . unless it is ‘without
foundation,’ a standard of review more deferential than the clearly erroneous
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1
Willis does not challenge the substantive reasonableness of his sentence.
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standard.” United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999)
(citation omitted).
Here, the district court removed the three-level reduction for
acceptance of responsibility on the ground that Willis “frivolously and falsely
contested relevant conduct that is clearly attributable to him.” See U.S.S.G.
§ 3E1.1, cmt. n.1(A) (A defendant who “falsely denies, or frivolously
contests, relevant conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility.”). The district court
cited Willis’s objection to the PSR’s calculation of his offense level, in which
Willis clearly stated that he was disputing all relevant conduct except “the
quantity . . . of controlled substances in his actual possession” on the day of
the traffic stop.
Willis argues that this was error because his objection merely reflected
his shock that 853 grams of meth were attributed to him instead of only the
77 found on his person during the traffic stop. In other words, he was not
refusing to accept responsibility, but was arguing in his PSR objections that
it was fundamentally unfair to sentence him for possessing 853 grams of
meth.
The record supports the district court’s assessment that Willis had
not accepted responsibility for his possession with intent to distribute
offense. The Written Factual Basis, which Willis and his counsel signed,
stated that “[t]he total amount of methamphetamine attributable to Willis,
as well as any relevant conduct to include additional methamphetamine and a
firearm recovered from a residence, will be determined at sentencing.”
(emphasis added). In his PSR objection, Willis objected to the additional
evidence recovered from his residence. Importantly, the police found two
batches of meth at the Shreveport residence: first, 447 grams along with a
stolen pistol, ecstasy pills, and cash; second, based on Willis’s statements, an
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additional 295 grams. The court observed, correctly, that Willis agreed that
additional meth from his residence would be included at sentencing. Even if
Willis may have had some basis to contest the second batch of meth, he had
none whatsoever to challenge the first. By objecting to the first batch of meth,
he frivolously and falsely contested relevant conduct that is clearly
attributable to him. That was the basis for the district court’s decision to
remove the three-point reduction. Thus, we cannot say that the district
court’s decision was without foundation. 2
AFFIRMED.
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2
This court has dismissed similar challenges on appeal by criminal defendants. See
e.g., United States v. Rascon, 517 F. App’x 283, 283 (5th Cir. 2013) (“[T]he district court’s
decision to treat his PSR responses as an objection frivolously contesting the probation
officer’s drug-quantity determination is not without foundation.”); United States v.
Vazquez, 371 F. App’x 526, 527–28 (5th Cir. 2010) (defendant’s “objections [to the drug
quantity] constituted attempts to deny or minimize relevant conduct”); United States v.
Lohmann, 364 F. App’x 167, 168 (5th Cir. 2010) (same).
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