[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 29, 2005
No. 03-16457
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00194-CR-T-23-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY CARLTON LANCASTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 29, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Terry Calton Lancaster appeals, pro se, his convictions and sentence for drug
trafficking, in violation of 21 U.S.C. sections 841(a)(1), (b)(1)(C), (b)(1)(A)(iii),
and being a felon in possession, in violation of 18 U.S.C. sections 922(g)(1) and
924(a)(2). Because the district court did not err when it refused to withdraw his
guilty plea, sentenced him as a career offender, and refused to award an additional
reduction for acceptance of responsibility, we affirm. We do not address
Lancaster’s argument regarding downward departure because we do not have
jurisdiction to review the decision of the district court.
I. BACKGROUND
Lancaster was indicted for distribution of crack cocaine, possession with
intent to distribute crack cocaine, possession of a firearm in furtherance of a drug
trafficking crime, and possession of a firearm as a felon. On the first day of trial,
Lancaster, represented by counsel and without the benefit of a plea agreement,
informed the court that he intended to plead guilty. At the hearing on the plea
change, Lancaster stated that he fully discussed the case with his attorney, was not
coerced into pleading guilty, understood the maximum penalties, was satisfied with
his counsel’s representation, and understood the charges against him and what the
government would have to prove at trial. Lancaster admitted that he knowingly
and intentionally possessed with intent to distribute 50 or more grams of crack
cocaine. Lancaster asserted, however, that he did not possess the firearms in
furtherance of the drug trafficking offense. The magistrate judge, therefore, did
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not accept his plea change as to this count of the indictment. The government later
dismissed that charge.
The presentence investigation report (PSI) recommended that the district
court sentence Lancaster as a career offender because of his three previous felony
convictions for crimes of violence. His career offender status set the total offense
level at 37 and criminal history category at VI. After Lancaster received the PSI,
he filed a motion to withdraw his guilty plea, but the district court denied it as
moot when Lancaster stated that he wanted to proceed with sentencing. Lancaster
then filed a second motion to withdraw his guilty plea and argued that he thought
that he would be given the opportunity to cooperate with the government before
sentencing so he could obtain a reduction for substantial assistance, but that the
government stated that his cooperation would not be considered at sentencing.
The magistrate judge held a hearing on Lancaster’s second motion to
withdraw his guilty plea. At the hearing, the court allowed Lancaster’s attorney to
withdraw and permitted Lancaster to represent himself. Lancaster then abandoned
his earlier motion to withdraw and stated that he now moved to withdraw his plea
as to the possession charge because he possessed fewer drugs than charged. The
magistrate judge recommended that the government allow Lancaster to have a
chemist of his choosing weigh the drugs.
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Lancaster’s chemist issued a report that stated that the total weight of the
drugs, after ten days of passive drying, was 46.9 grams. The magistrate judge
recommended that Lancaster’s motion to withdraw his guilty plea be denied
because the dried, or evaporated weight of the drugs was irrelevant since inactive
ingredients such as water, that are sold as a mixture with cocaine, are included in
the total weight for sentencing purposes. The magistrate judge concluded that
Lancaster had not established a fair and just reason for the withdrawal of his guilty
plea.
Lancaster proceeded pro se and filed objections to the PSI. The district
court overruled his objections, adopted the recommendations of the PSI, and
sentenced Lancaster to 292 months’ imprisonment.
II. DISCUSSION
At the outset, we note that in his reply brief Lancaster raised a challenge to
his sentence under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).
Lancaster did not raise this issue in his initial brief. The longstanding rule of this
Court is that issues not raised in the initial brief are deemed waived. See United
States v. Njau, 386 F.3d 1039, 1041-42 (11th Cir. 2004). We, therefore, do not
address this argument.
To resolve this appeal we will address four matters: (1) the refusal to allow
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Lancaster to withdraw his guilty plea; (2) the classification of Lancaster as a career
offender; (3) the refusal to give Lancaster an additional reduction for acceptance of
responsibility; and (4) the refusal to grant Lancaster a downward departure. We
address each issue in turn.
A. Motion to Withdraw Plea
If we construe Lancaster’s pro se brief liberally, as we must, Lancaster
contends that the findings of the chemist regarding the dry net weight of the drugs
was a just and fair reason for withdrawal of his guilty plea. We review the denial
of a motion to withdraw a guilty plea for an abuse of discretion. See United States
v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). Federal Rule of Criminal
Procedure 11 allows a defendant to withdraw “a plea of guilty . . . after the court
accepts the plea but before it imposes sentence if . . . the defendant can show a fair
and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). When
a district court considers a motion to withdraw a guilty plea, it “may consider the
totality of the circumstances surrounding the plea . . . includ[ing] (1) whether close
assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw his
plea.” United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988) (internal
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citations omitted).
The district court did not abuse its discretion when it denied Lancaster’s
motion to withdraw his guilty plea. Lancaster had the close assistance of counsel.
He was assisted by counsel at during the plea hearing, acknowledged that he
discussed the case with counsel, and stated that he was satisfied with his attorney’s
representation. The plea was also knowing and voluntary. Lancaster stated that
his plea was not coerced, he understood the nature of the charge, and that he was
pleading guilty to possession of 50 grams or more of crack cocaine. Judicial
resources would not be conserved if the court allowed the plea change and the
government would be prejudiced if he were allowed to withdraw his plea.
B. Career Offender
Lancaster next argues that the district court erred when it classified him as a
career offender because his previous convictions were related. He contends that
his three previous convictions were consolidated because the sentenced were
imposed at one hearing and ran concurrently. He also argues that the convictions
were part of a common scheme and committed within a short period, that he was
arrested by the same law enforcement agency for all three, that only one arrest
actually occurred, and that all the crimes were solved in the same investigation.
We review the factual findings of a district court for clear error and its
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application of the Sentencing Guidelines to those facts de novo. See United States
v. Mullens, 65 F.3d 1560, 1563-64 (11th Cir.1995). A defendant is a career
offender when: (1) he was at least 18 years old at the time when he committed the
instant offense; (2) the instant offense is a felony that is either a crime of violence
or a controlled-substance offense; and (3) he has at least two prior felony
convictions of either a crime of violence or a controlled-substance offense. See
U.S.S.G. § 4B1.1(a). Convictions are applied toward the determination of career
offender status in the same manner as the determination of criminal history. See
U.S.S.G. § 4B1.2, cmt. n.3. To calculate a defendant’s criminal history category,
previous sentences imposed in unrelated cases are counted separately, but previous
sentences imposed in related cases are treated as one sentence. See U.S.S.G.
§ 4A1.2(a)(2).
The district court did not clearly err when it found that Lancaster was a
career offender. Lancaster had three previous felony convictions: (1) he was
arrested on January 17, 1989, and charged with robbery; (2) he was arrested on
August 17, 1989, and charged with aggravated battery in a correctional institution;
and (3) on September 11, 1989, he was arrested and charged with assault or battery
in a county or municipal jail and criminal mischief. Lancaster was convicted of the
first and third offense, and adjudicated guilty of the second. He was sentenced for
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all three convictions at one hearing, and the sentences ran concurrently.
“Prior sentences are not considered related if they were for offenses that
were separated by an intervening arrest.” U.S.S.G. § 4A1.2, cmt. n.3. See also
United States v. Duty, 302 F.3d 1240, 1242 (2002). Each of Lancaster’s
convictions was separated by an intervening arrest. Although the comments to the
Sentencing Guidelines state that cases are related if they are consolidated for trial
or sentencing, it is unclear from the record whether these cases were actually
consolidated for sentencing. There is nothing in the record to suggest that these
convictions were related in any way. That Lancaster was sentenced for all three at
one hearing and his sentences ran concurrently does not convince us that they were
related. In the light of the “intervening arrest” rule, see Duty, 302 F.3d at 1242, we
cannot say that the district court clearly erred when it concluded that the
convictions were not related.
Because the district court did not err when it sentenced Lancaster as a career
offender, we need not address many of his remaining arguments regarding his
sentencing. Lancaster’s status as a career offender set his base offense level at 37
and his criminal history category at the highest level. Any error in calculating
other aspects of Lancaster’s criminal history score would be harmless.
We still must address two of Lancaster’s remaining arguments. First, we
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must consider his argument regarding acceptance of responsibility because that
would allow for an adjustment to the total offense level. Second, we must consider
his argument regarding his motion for downward departure.
C. Acceptance of Responsibility
We review the findings by the district court regarding a reduction for
acceptance of responsibility for clear error. See United States v. Calhoon, 97 F.3d
518, 531 (11th Cir. 1996). A defendant bears the burden of establishing that he is
entitled to a reduction for acceptance of responsibility. See United States v.
Anderson, 23 F.3d 368, 369 (11th Cir.1994). Section 3E1.1(a) of the Sentencing
Guidelines allows for a two-point reduction in the base offense level for acceptance
of responsibility. See U.S.S.G. § 3E1.1(a). Section 3E1.1(b)(2) provides for an
additional one-level reduction in the base offense level if the defendant: (1)
qualifies for a two-level reduction for acceptance of responsibility under
§ 3E1.1(b)(1); (2) has an offense level of 16 or greater; and
(3) has assisted authorities in the investigation or prosecution of his
own misconduct by . . . timely providing complete information to the
government concerning his own involvement in the offense; or timely
notifying authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and permitting
the court to allocate its resources efficiently.
U.S.S.G. § 3E1.1(b).
After “a defendant is awarded a two-level reduction for acceptance of
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responsibility, whether or not to grant the additional one-level reduction is a matter
of determining only whether the defendant timely provided information and
notified authorities of his intention to enter a plea of guilty.” United States v.
McPhee, 108 F.3d 287, 289-90 (11th Cir. 1997). “The timeliness of the
defendant’s acceptance of responsibility . . . is context specific. In general, the
conduct qualifying for a decrease in offense level under subsection (b)(1) or (2)
will occur particularly early in the case.” U.S.S.G. § 3E1.1(b), cmt. n.6. “As a
general rule, pleas on the eve of trial are not timely.” United States v. Gilbert, 138
F.3d 1371, 1373 (11th Cir. 1998).
The district court did not clearly err when it denied Lancaster’s request for
an additional one-point reduction for acceptance of responsibility. Lancaster
changed his plea to guilty on the day trial was to begin, and when he made his plea,
he did not fully accept responsibility as to one of the charged crimes. Although
Lancaster admitted that he owned the crack cocaine and guns at the time the search
warrant was executed, he adamantly denied the amount of crack cocaine that was
involved and challenged the firearm enhancement to his sentence. There is no
evidence that Lancaster provided any information concerning his involvement in
drug trafficking to the government. The district court was kind to adopt the
recommendation of the PSI and award Lancaster a two-level reduction. We agree
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with the district court when it stated that Lancaster was “very fortunate” to receive
any reduction because “most people do not get that under the circumstances of this
case.”
D. Downward Departure
Lancaster argues that the district court erred when it denied his motion for
downward departure. He contends that the district court should have granted his
motion based on his diminished mental capacity. We “may not review a district
court’s refusal to grant a downward departure unless the court mistakenly believed
that it lacked the authority to grant such a departure.” United States v. Hansen, 262
F.3d 1217, 1256 (11th Cir. 2001). Nothing in the record evidences that the district
court misunderstood its authority to grant a departure based on diminished
capacity; instead the record shows the proper understanding of the district court
regarding its authority. We, therefore, lack jurisdiction to review the decision of
the district court. See id. at 1257.
III. CONCLUSION
Based on the foregoing, Lancaster’s convictions and sentence are
AFFIRMED.
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