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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10320
Non-Argument Calendar
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D.C. Docket No. 9:17-cr-80105-WPD-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMANO DANIEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 20, 2018)
Before WILSON, MARTIN, and HULL, Circuit Judges.
PER CURIAM:
Domano Daniel appeals his 10-year sentence for conspiring to possess five
or more kilograms of cocaine with intent to distribute. He argues that the district
court abused its discretion by denying his motion to withdraw his guilty plea and
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by giving him a substantively unreasonable sentence. After careful consideration,
we reject his arguments and affirm.
I.
A grand jury indicted Daniel, charging him with conspiring to possess five
or more kilograms of cocaine with intent to distribute and attempting to possess
five or more kilograms of cocaine with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.
Daniel reached a plea agreement with the government. The terms of that
agreement required Daniel to plead guilty to conspiracy to possess five or more
kilograms of cocaine with intent to distribute. In exchange, the government would
seek to dismiss the remaining charge against him and recommend a reduction in
his Sentencing Guideline (“Guidelines”) offense level for acceptance of
responsibility.
A change of plea hearing was held in district court. At the hearing, Daniel
confirmed he and his attorney had discussed the plea agreement, the nature of the
charges he faced, possible defenses to them, and his chances of winning the case at
trial. He told the court he did not need more time to discuss these or any other
matters with his attorney and that he had changed his mind about wanting to go to
trial. Daniel confirmed he understood that, by pleading guilty, he would be giving
up any and all defenses to the charge he faced and that he nonetheless still wanted
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to plead guilty. Daniel confirmed he was pleading guilty because he was, in fact,
guilty of conspiring to possess five or more kilograms of cocaine with intent to
distribute. According to the government’s summary of the facts, Daniel’s role in
the crime was limited to: engaging in phone calls with a codefendant, Reynold
Simeous, about where they would pick up cocaine from a third codefendant, John
Corvey; driving Simeous to that location; and opening the trunk of the car from a
latch inside the car. Corvey, who was cooperating with authorities, then put a
black duffel bag with sham cocaine into the backseat of the Honda, as Simeous
instructed, and Simeous handed him a bag containing more than $41,000. After
advising and questioning Daniel as otherwise required by Federal Rule of Criminal
Procedure 11(b)(1), the district court found a factual basis for Daniel’s plea.
Daniel then pled guilty to the conspiracy charge. The court noted Daniel’s plea
was knowing, intelligent, and voluntary and accepted it.
More than two months later at what was supposed to be his sentencing
hearing, Daniel told the court he believed his attorney was not representing him
adequately. Daniel asserted his innocence, claiming he did not know drugs were
involved in the transaction with Corvey. He said counsel coerced him into
pleading guilty. In particular, Daniel pointed to counsel’s refusal to allow him to
review a statement counsel prepared to assist Daniel in receiving safety-valve relief
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under Guidelines Section 5C1.2 until after Daniel pled guilty. The court appointed
new counsel and delayed the sentencing.
On January 12, 2018, Daniel made an oral motion to withdraw his guilty
plea. Daniel said his plea was neither knowing, nor intelligent, nor voluntary
because prior counsel told him mere presence was not a defense to the charges he
faced and told him to simply say yes to everything the court asked at his change of
plea hearing. The court took sworn testimony from Daniel. Daniel testified that,
although he did not knowingly participate in a drug deal, prior counsel “told [him
his] mere presence and the fact that [he] asked for directions [to the location where
the transaction occurred] makes [him] guilty in the conspiracy.”
The court also took testimony from prior counsel, who denied Daniel’s
assertions. Prior counsel testified he was initially optimistic about the possibility
of a mere presence defense and discussed it with Daniel. However, prior counsel
eventually learned, through discovery provided by the government, that Daniel had
previously been involved in a similar exchange and explained to Daniel that this
fact might weaken a mere presence defense.
On the government’s motion, the court admitted three exhibits during prior
counsel’s testimony, including the statement counsel submitted to the government
in support of safety-valve relief, which incorporated some of Daniel’s edits. In that
statement, Daniel admitted he was the driver in a similar transaction prior to the
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transaction underlying this conviction. As to the previous transaction, Daniel
admitted he “realized it must have been for drugs” when he was paid.
Nonetheless, he said he participated as a driver again, leading to his arrest and
conviction for the offense at issue here.
Ultimately, the court denied Daniel’s motion, concluding there was no fair
and just reason for Daniel’s request. The court found prior counsel’s testimony
credible and found Daniel’s testimony at the motion hearing not credible.
Sentencing took place on January 19, 2018. The district court granted the
following adjustments: (1) a minor role reduction, pursuant to Guidelines Section
3B1.2; (2) a reduction based on the theory that Daniel was responsible for
conspiring to distribute a smaller amount of drugs than the Presentence
Investigation Report indicated, pursuant to United States v. Bacon, 598 F.3d 772,
777–78 (11th Cir. 2010) (per curiam), and Guidelines Section 2D1.1(5); (3) a two-
point reduction for acceptance-of-responsibility, pursuant to Guidelines Section
3E1.1(a); and (4) relief from the applicable mandatory minimum, pursuant to
Guidelines Section 5C1.2’s safety valve.
As to the acceptance-of-responsibility reduction and safety-valve relief, the
court noted that both were recommended in the Presentence Investigation Report,
and the government had not previously objected to either. The government said
the court was correct. The court expressed doubt about whether Daniel was
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entitled to an acceptance-of-responsibility adjustment or safety-valve relief given
its factual findings suggesting Daniel had not provided truthful testimony in
connection with his motion to vacate his guilty plea. However, the court indicated
it was compelled to grant both forms of relief because of the government’s failure
to timely object. The court ruled that Daniel’s guideline range was 46 to 57
months, based on a total offense level of 23 and a criminal history category of I.
The court then pronounced sentence. To begin, the court said a guideline
sentence would not be reasonable for three primary reasons. First, the court opined
that 13.5 kilograms of cocaine was “a lot of cocaine being imported into the United
States.” Second, the court noted “[t]his isn’t Mr. Daniel’s first time getting
involved in an importation.” And third, the court expressed its belief that Daniel’s
conduct at the change-of-plea and motion to vacate hearings did not “promote[]
respect for the law,” because Daniel “told the truth during the change of plea” and
later “lied trying to get out from underneath the responsibility of the case” at the
hearing on the motion to vacate. In the court’s view, Daniel’s conduct “warranted
an obstruction-of-justice enhancement [under Guidelines Section 3C1.1] had the
government so requested.” While noting the safety-valve requirement was
“controlling on” it, the court said it still was free to “give a sentence above the ten-
year mandatory minimum.” Finally, the court ruled that “the equivalent of the ten-
year mandatory minimum is the appropriate sentence” “given all the facts and
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circumstances of this case, to promote respect for the law, to act as a deterrent so
other people aren’t tempted to assist in smuggling . . . large amounts of drugs from
the Bahamas, and to indicate that the Court doesn’t condone perjury in a[n]
obstruction of justice fashion.” The court imposed a ten-year sentence.
Daniel objected on substantive reasonableness and due process grounds,
given that the court’s sentence more than doubled the top of the guidelines. The
court overruled his objection. In so doing, the court said it could consider Daniel’s
purported perjury even though the government had not requested an obstruction-
of-justice enhancement. It described Daniel’s behavior as “willy-nilly lying and
wasting the Court’s time with perjurious testimony.” The court added that it could
also consider its views on Daniel’s acceptance of responsibility and the application
of the safety valve to Daniel’s case in setting a fair and just sentence.
This appeal followed.
II.
Daniel raises two claims on appeal. First, he asserts the district court abused
its discretion in denying his motion to withdraw his guilty plea because the plea
colloquy did not dispel or address his mistaken belief that there was no available
legal defense. Second, he argues that his sentence was substantively unreasonable
because the district court gave improper weight to his purported perjury.
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We review the denial of a request to withdraw a guilty plea for abuse of
discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). We
also review the substantive reasonableness of a sentence for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
III.
We begin with Daniel’s claim that the district court should have granted his
motion to withdraw his guilty plea. Daniel argues that the district court’s colloquy
was deficient, because the court “never asked [him] if he had an opportunity to
review the defense of mere presence with counsel.” That was a critical question
here, Daniel asserts, because he harbored an “incorrect belief that he had no
defense.” As a result, Daniel says his plea was not knowing or voluntary and,
therefore, the district court should have permitted him to withdraw it.
In rejecting this argument, we note that the district court found Daniel’s
testimony not credible, including his assertion that his counsel had not discussed
the availability and viability of a mere presence defense. Rather, the district court
credited the testimony of Daniel’s prior counsel, who said that he discussed the
mere presence defense with Daniel. These credibility determinations were matters
for the district court to decide, and Daniel has not indicated why we should revisit
them. Brehm, 442 F.3d at 1298 (“The good faith, credibility and weight of a
defendant’s assertions in support of a motion to withdraw a guilty plea are issues
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for the trial court to decide.” (quotation marks omitted and alteration adopted)).
The only evidence in the record supporting Daniel’s claim was his own testimony.
Once the district court discredited it, Daniel could not meet his burden to show a
“fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B);
Brehm, 442 F.3d at 1298. Therefore, the district court did not abuse its discretion
in denying Daniel’s motion to withdraw his guilty plea.
IV.
We next review Daniel’s claim that his sentence was substantively
unreasonable. Daniel’s argument proceeds in two parts. First, he asserts that the
district court erred by considering his alleged perjury in deciding to vary upward
from the guidelines because a feature of the sentencing scheme—the obstruction-
of-justice enhancement—already accounts for this conduct. Second, he argues his
sentence “was more than doubled because he did not fully understand his plea
colloquy at the time,” and that, in any event, neither his alleged perjury nor the
other circumstances of the case justified the district court’s major variance.
Daniel’s first argument fails because the government did not request and the
district court did not impose an obstruction-of-justice enhancement. Thus, the
district court’s belief that Daniel had perjured himself was not accounted for in
calculating the guideline range. Cf. United States v. Valdes, 500 F.3d 1291, 1292
n.2 (11th Cir. 2007) (per curiam) (deeming a sentence substantively unreasonable
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in part because “[m]any of the bases for the district court’s sentence were already
accounted for in calculating the Guidelines range”).
Daniel’s second argument also falls short. No doubt, Daniel’s 10-year
sentence, more than double the top of the guideline range, represents a major
variance. See United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en
banc) (concluding a 42% variance qualified as major). Such variances “require . . .
more significant justification than . . . minor one[s].” Id.; United States v. Pugh,
515 F.3d 1179, 1201 (11th Cir. 2008) (concluding that a “district court did not
support [its] major departure with a significant justification” (quotations omitted)).
Nonetheless, we cannot conclude that the district court abused its discretion in
imposing this upward variance. Irey, 612 F.3d at 1187, 1189.
Increasing Daniel’s sentence because he did not understand his plea would
certainly be an abuse of discretion. See id. at 1189 (explaining that a district court
abuses its discretion when it “gives significant weight to an improper or irrelevant
factor” (quotation marks omitted)). But that is not what happened here. Instead,
the district court justified its variance in part by Daniel’s purported dishonesty
under oath at the hearing on his motion to withdraw his guilty plea. This Court’s
precedent has permitted a district court to do just that in materially
indistinguishable circumstances. See United States v. Mateos, 623 F.3d 1350,
1367 (11th Cir. 2010) (O’Connor, J., ret.) (affirming a sentence on a substantive
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reasonableness challenge, where the district court found, at sentencing, that the
defendant had “blatantly lied” during her testimony at trial and referred to her
“perjurious testimony” as one of several reasons for varying upward (quotation
marks omitted)). Thus, we cannot say the district court abused its discretion by
considering Daniel’s perjury in varying upward.
Also, the district court did not rely on Daniel’s perjury alone to justify such a
major variance. The court also said it varied upward in part “to . . . deter[] other
people . . . from . . . assist[ing] in smuggling . . . large amounts of drugs from the
Bahamas.” We cannot say—and Daniel does not argue—that this was error. See
18 U.S.C. § 3553(a)(2)(A), (B) (providing that the district court must consider “the
need for the sentence imposed . . . to reflect the seriousness of the offense [and] . . .
to afford adequate deterrence to criminal conduct”).
Even if we ourselves would have imposed a less severe sentence, this is not
a basis to conclude that Daniel’s sentence was substantively unreasonable. Gall,
552 U.S. at 51, 128 S. Ct. at 597 (“The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.”). Therefore, we cannot say the district
court’s sentence “constitute[d] a clear error of judgment.” Irey, 612 F.3d at 1187,
1189 (quotation marks omitted). We affirm.
AFFIRMED.
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