[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2011
No. 10-13502
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 3:10-cr-00019-LC-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
JAMES ANDREW MUSGROVE,
a.k.a. Ricky,
a.k.a. Starchild,
lllllllllllllllllllll Defendant - Appellant
________________________
No. 10-13582
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cr-00019-LC-2
UNITED STATES OF AMERICA,
llllllllllllllllllll lPlaintiff - Appellee,
versus
MUHAMMAD SHAKEIN WILLIAMS,
a.k.a. Moe,
a.k.a. Lodge,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(May 11, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
James Andrew Musgrove and Muhammad Shakein Williams appeal their
240-month sentences for conspiracy to distribute and possession with intent to
distribute cocaine. Musgrove argues that the district court erred in denying his 28
U.S.C. § 455(a) motion to disqualify the district court judge. He also contends
that his sentence is substantively unreasonable because (1) there is an unwarranted
disparity between his sentence and the lower sentences that three similarly situated
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defendants received, (2) the district court improperly considered the fact that it
previously had sentenced Musgrove for a similar offense, and (3) the court clearly
erred in finding that he was the “leader” or “main distributor” of the conspiracy.
Williams contends that his sentence is substantively unreasonable because of an
unwarranted disparity between his sentence and the lower sentences that five
similarly situated defendants received, and because the district court placed undue
emphasis on his extensive criminal history. For the reasons set forth below, we
affirm.
I.
Musgrove and Williams were charged with (1) conspiracy to distribute and
possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii),
and 846; and (2) possession with intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Musgrove filed a
motion to disqualify the trial court judge, pursuant to 28 U.S.C. § 455(a), asserting
that there was an appearance of bias because the judge had presided over a previous
trial that resulted in Musgrove’s conviction for conspiracy with intent to distribute
cocaine. The district court denied the motion and both Musgrove and Williams pled
guilty.
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According to the presentence investigation reports (“PSIs”), several
individuals implicated Musgrove and Williams as being involved in a multi-kilogram
cocaine distribution enterprise. Dennis Gibbons advised law enforcement officers
that he purchased a total of six kilograms of cocaine from Musgrove and
approximately six grams of cocaine base from Williams. Three other individuals also
informed law enforcement officers that they had purchased powder cocaine and
cocaine base from Musgrove. Informants working with law enforcement conducted
four controlled buys, during which they purchased a total of 99.17 grams of powder
cocaine and 54.7 grams of cocaine base from Musgrove and 56.7 grams of powder
cocaine from Williams. The conspiracy involved a total of 16,075 grams of powder
cocaine and 615 grams of cocaine base.
Musgrove’s total offense level was 31 and his criminal history category was
IV, resulting in a guideline imprisonment range of 151 to 188 months. Williams had
a total of 37 criminal history points, which placed him in criminal history category
VI. Based on his total offense level of 34 and his criminal history category,
Williams’s guideline imprisonment range was 262 to 327 months. However, both
Musgrove and Williams were subject to 21 U.S.C. § 841(b)(1)(A)’s mandatory
minimum term of life imprisonment. Pursuant to U.S.S.G. § 5G1.1, the statutory
minimum replaced the otherwise-applicable guideline range.
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Prior to sentencing, the government submitted motions, pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1, advising the court that both Musgrove and Williams
had cooperated with authorities and provided substantial assistance.
At Musgrove’s sentencing hearing, Musgrove noted that three individuals who
had made statements against him had been convicted and sentenced based on their
involvement in related cases. He provided the court with copies of the § 5K1.1
motions filed on behalf of Marcus Allen Lovett, James Lashawn Campbell, and
Johnny Williams, as well as the district court docket sheets from each of their cases.
These documents showed that Lovett pled guilty to (1) conspiracy to distribute and
possess with intent to distribute more than 500 grams of cocaine and (2) possession
with intent to distribute more than 50 grams of cocaine base, and was sentenced to a
total of 120 months’ imprisonment. Campbell pled guilty to conspiracy to distribute
and possess with intent to distribute more than 5 kilograms of cocaine, and was
sentenced to 60 months’ imprisonment. Johnny Williams pled guilty to (1)
conspiracy to distribute and possess with intent to distribute more than 5 kilograms
of cocaine and (2) possession with intent to distribute more than 500 grams of
cocaine, and was sentenced to a total of 150 months’ imprisonment.
The court noted that, although it had not sentenced Campbell, it was familiar
with the circumstances surrounding Campbell’s conviction and sentence. It pointed
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out that, although Campbell was held responsible for the entire drug quantity
involved in the conspiracy, the evidence had shown that he had not been involved in
the conspiracy to the same extent as Williams or Musgrove, who was “the leader of
this operation.” Musgrove noted that his PSI described him and Williams as “equal
participants” in the conspiracy and did not include a leadership-role enhancement.
The court clarified that it was “not talking about the legal meaning in the [PSI, but
rather] . . . the nature of the operation, how much was distributed. [Musgrove] was
the main distributor, not that it meets the legal [definition], perhaps.”
Musgrove personally addressed the court, and the court noted, “[w]e’ve been
through this before, you and me, I think.” It found that the PSI was accurate and
sentenced Musgrove to 240 months’ imprisonment with respect to each count, to run
concurrently. The court explained that the significant deviation from the guideline
term of life imprisonment was based upon the government’s substantial assistance
motion, and it stated that it had considered the 18 U.S.C. § 3553(a) factors as well as
the advisory guidelines and determined that the sentence was reasonable and
necessary.
At Williams’s sentencing hearing, Williams asked the court to consider his
culpability in relation to other participants in the conspiracy, as well as the sentences
that his co-conspirators had received. He asked the court to consider a sentence
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“toward the lower end of the people who have been sentenced rather than the higher.”
The court noted that Williams had 37 criminal history points, which was the highest
total that it had seen. Williams noted that many of his prior offenses were committed
when he was a juvenile, although he acknowledged that he had a “very extensive
criminal history and for many serious crimes and convictions.”
The court found that the PSI was accurate and sentenced Williams to 240
months’ imprisonment on each count, to run concurrently. The court stated that the
significant variance from the guideline range of life imprisonment was justified by
Williams’s substantial cooperation. It stated that it had considered the § 3553(a)
factors, as well as the advisory guidelines in concluding that the sentence was
reasonable and sufficient.
The record on appeal includes the criminal judgments of Jose
Guadalupe-Gutierrez and Jesus Manuel Clark-Castaneda, each of whom were
convicted of (1) conspiracy to distribute and possess with intent to distribute 5
kilograms or more of cocaine and (2) possession with intent to distribute 500 grams
or more of cocaine. Guadalupe-Gutierrez was sentenced to 120 months’
imprisonment, and Clark-Castaneda was sentenced to 136 months’ imprisonment.
II.
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Although Musgrove argues in his initial appellate brief that the district court
erred in denying his 28 U.S.C. § 455(a) motion to disqualify, he concedes in his
reply brief that this issue was not preserved for appellate review. We have held
that “a defendant waives his right to appeal the denial of a § 455(a) motion by
entering an unconditional guilty plea.” United States v. Patti, 337 F.3d 1317,
1320-21 (11th Cir. 2003). Accordingly, Musgrove’s unconditional guilty plea
waived his right to appeal the denial of his motion to recuse.
III.
We review a defendant’s sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct.
586, 594, 169 L.Ed.2d 445 (2007). Under the abuse-of-discretion standard, we
will reverse only if the district court made a clear error of judgment. United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The party challenging the
sentence “bears the burden of establishing that the sentence is unreasonable in
light of both [the] record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
To determine whether a sentence imposed is substantively reasonable, we
consider the factors set forth by Congress in 18 U.S.C. § 3553(a). Pugh, 515 F.3d
at 1188-89. These factors include the history and characteristics of the defendant,
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the need for a sentence to promote respect for the law, the need for deterrence, the
need to protect the public from further crimes of the defendant, and “the need to
avoid unwarranted sentencing disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1)-(2), (6).
We “will defer to the district court’s judgment regarding the weight given to the
§ 3553(a) factors unless the district court has made a clear error of judgment.”
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (quotation
omitted).
Musgrove and Williams have failed to establish that there was an
unwarranted disparity between their sentences and the sentences of their
co-conspirators because they have not shown that they were similarly situated to
the co-conspirators. See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir.
2009) (explaining that sentencing disparities are not “unwarranted” if the
individuals being compared are not similarly situated); Talley, 431 F.3d at 788
(noting that the burden is on the appellants to show that their sentences are
unreasonable). First, Musgrove and Williams were charged with (1) conspiracy to
distribute and possess with intent to distribute 5 kilograms or more of cocaine and
50 grams or more of cocaine base and (2) possession with intent to distribute 50
grams or more of cocaine base. Campbell was convicted of only one
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count—conspiracy to distribute and possess with intent to distribute 5 or more
kilograms of cocaine. Lovett and Johnny Williams each were charged with a
conspiracy count as well as a possession count, but their offenses involved smaller
drug quantities. Specifically, Lovett’s conspiracy charge involved 500 grams or
more of cocaine, whereas Musgrove’s and Williams’s conspiracy charge involved
5 or more kilograms of cocaine and 50 grams or more of cocaine base. Johnny
Williams’s conspiracy charge involved 5 or more kilograms of powder cocaine,
but neither of his charges involved cocaine base. Furthermore, there is no
evidence in the record detailing the nature and extent of Campbell’s, Lovett’s, or
Johnny Williams’s criminal history.
It does not appear that Williams submitted to the district court any
information regarding Guadalupe-Gutierrez’s or Clark-Castaneda’s sentences.
Nevertheless, he has failed to show on appeal that he was similarly situated to
either Guadalupe-Gutierrez or Clark-Castaneda, whose convictions involved only
powder cocaine. The only evidence that Williams submits with respect to
Guadalupe-Gutierrez and Clark-Castaneda are their judgments of conviction.
There is no evidence regarding their criminal histories or applicable guideline
ranges. Accordingly, Musgrove and Williams have failed to show that their
sentences resulted in unwarranted disparities.
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The district court also did not err in considering that the fact that it
previously had sentenced Musgrove for a similar offense. Musgrove’s prior
offense was a fact that the district court was permitted to consider, regardless of
the judge that presided over his prior trial and sentencing. See 18 U.S.C. § 3661
(providing that a sentencing court may consider any “information concerning the
background, character, and conduct” of a defendant). In fact, the nature of
Musgrove’s prior offense was relevant to several § 3553(a) sentencing factors,
which sentencing courts are required to consider. See 18 U.S.C. § 3553(a)(1)-(2)
(instructing sentencing courts to consider “the history and characteristics of the
defendant,” the need “to promote respect for the law,” and the need “to afford
adequate deterrence”).
Next, although the district court initially described Musgrove as a “leader”
of the conspiracy, it acknowledged that Musgrove was not a leader in the sense
that he should receive a role enhancement, and it did not apply a role
enhancement. Furthermore, the court did not clearly err by stating that Musgrove
was the “main distributor” of cocaine. This comment was made during a
discussion of Musgrove’s relative culpability in comparison to Campbell. As
discussed above, Campbell was convicted of only one count, which involved a
smaller drug quantity. Based on this fact alone, the district court did not clearly
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err in determining that Musgrove was more culpable than Campbell. Finally, even
if the district court’s comment was construed to mean that Musgrove was the
“main distributor” in the charged conspiracy, this finding would not be clearly
erroneous. The PSI listed four individuals to whom Musgrove sold cocaine.
Musgrove sold kilogram quantities to three of these individuals. In contrast, the
PSI indicated that Williams, the only other charged co-conspirator, directly sold
only six grams of cocaine base and 56.7 grams of powder cocaine. In light of
these facts, the district court did not clearly err in finding that Musgrove was the
“main distributor.”
Finally, Williams argues that the district court “over-stressed” his prior
criminal history. Section 3553(a) instructs sentencing courts to consider a
defendant’s history and characteristics, as well as the need to promote respect for
the law, deter future criminal conduct, and protect the public. See 18 U.S.C.
§ 3553(a)(1)-(2). Williams’s lengthy criminal history was relevant to all three of
these factors and, in light of the severity and extent of his criminal history, the
district court did not clearly err in according significant weight to his criminal
history.
Musgrove and Williams have failed to show that their 240-month sentences,
which resulted from a significant downward variance from their guideline terms of
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life imprisonment, were substantively unreasonable. Accordingly, we affirm their
sentences.
AFFIRMED.
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