United States v. Robert Clive Taylor , 457 F. App'x 835 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10719 FEBRUARY 7, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cr-20186-JLK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ROBERT CLIVE TAYLOR,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
No. 11-11048
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20186-JLK-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
LYNVAL DWYER, a.k.a. Richie
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 7, 2012)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
Lynval Dwyer appeals his convictions for conspiring to import 500 grams or
more of cocaine into the United States, 21 U.S.C. § 963, conspiring to possess
with intent to distribute 500 grams or more of cocaine, id. § 846, and attempting to
possess with intent to distribute 500 grams or more of cocaine, id. § 846, and
Robert Clive Taylor appeals his sentence of 63 months of imprisonment for the
same conspiracy and attempt offenses and for possessing with intent to distribute
five grams or more of cocaine base. Id. § 841(a)(1). Dwyer argues that he should
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have been permitted to testify about allegedly coercive statements made by a drug
supplier and a confidential informant and that he was entitled to a related jury
instruction about duress. Taylor complains about being denied the opportunity to
allocute before pronouncement of his sentence, despite receiving a sentence at the
low end of the advisory guideline range. We affirm.
The district court correctly denied Dwyer’s requests to admit hearsay
statements made by the supplier and informant and to give a jury instruction on
duress. “Under the law of this circuit, to establish a defense of duress[,] a
defendant must show that he acted under an immediate threat of death or serious
bodily injury, that he had a well-grounded fear that the threat would be carried out,
and that he had no reasonable opportunity to escape or inform [the] police.”
United States v. Alzate, 47 F.3d 1103, 1104 (11th Cir. 1995) (internal quotation
marks omitted). Dwyer contended that the informant and supplier coerced him to
join the conspiracy to import, but Dwyer failed to “proffer evidence sufficient to
prove the essential elements of the defense” of duress, United States v.
Montgomery, 772 F.2d 733, 736 (11th Cir. 1985). Dwyer proffered that, in
November 2008, the supplier admonished Dwyer after customs officials
interrupted a drug smuggling operation that Dwyer had coordinated to aid the
cash-strapped informant, and in March 2010, the supplier warned Dwyer that if he
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failed to “settle up [his] bill” by importing cocaine, Dwyer “[knew] what [the
supplier was] going to do.” According to Dwyer’s proffer, he faced no immediate
harm and he had numerous opportunities to contact law enforcement before his
arrest in April 2010. See United States v. Sixty Acres in Etowah Cnty., 930 F.2d
857, 860–61 (11th Cir. 1991). Dwyer was not entitled to testify about hearsay
statements of the supplier or the informant or to have the jury instructed about the
defense of duress.
The district court erred when it failed to permit Taylor to allocute, but the
error did not substantially prejudice Taylor’s rights. When it asked whether
“[counsel] or [his] [client] [had] anything [they] wished to add” or whether there
was “[a]nything else anyone wants to say,” the district court failed to “clearly
inform [Taylor] of his allocution rights” or eliminate “‘doubt that [he] [had] been
issued a personal invitation to speak prior to sentencing,’” United States v.
Gerrow, 232 F.3d 831, 833 (11th Cir. 2000) (quoting Green v. United States, 365
U.S. 301, 305, 81 S. Ct. 653, 655 (1961)). Taylor failed to object and cannot
establish that the error, although plain, prejudiced his substantial rights. See id. at
834. Taylor requested and received a sentence at the low end of the guideline
range.
We AFFIRM Dwyer’s convictions and Taylor’s sentence.
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