[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 10, 2005
No. 03-15227
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00415-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL VALIANT SHANNAHAN, III,
a.k.a. Val,
a.k.a. Samuel Valiant Shannahan,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 10, 2005)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Samuel Valiant Shannahan, III, who pled guilty to ten counts of unlawfully
transferring a firearm in violation of 26 U.S.C. § 5861(e), appeals his sentence of
fifty-six months of imprisonment. Specifically, Shannahan argues that the district
court erred by: (1) refusing to enforce the terms of a plea agreement after it had
been breached; (2) enhancing his sentence in violation of his constitutional rights
under Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004) and United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005); (3) enhancing his sentence
for obstruction of justice; and (4) declining to grant an acceptance of responsibility
sentence reduction. Because the district court did not commit reversible error in its
sentencing of Shannahan, we AFFIRM.
I. BACKGROUND
Shannahan was a federally-licensed firearms dealer working in Florida. As
such, he was responsible for filing with federal authorities various registration and
transfer of ownership forms when he sold firearms to customers. In August 2002,
however, one of Shannahan’s customers, Dr. Robert Goldstein, was the subject of a
federal criminal investigation which led to the discovery of various firearms in
Goldstein’s possession which were not properly registered in Goldstein’s name.
Later research confirmed that four of these weapons were registered in
Shannahan’s name and were transferred by him to Goldstein without filing the
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proper paperwork with federal authorities.
Based on this discovery, in September 2002, federal agents from the Bureau
of Alcohol, Tobacco, and Firearms (“ATF”) executed a search warrant of
Shannahan’s residence. During the search, the agents found that Shannahan was
unable to account for several weapons which were registered in his name and
which were legally required to be in his possession. While Shannahan told the
agents that he did not know the whereabouts of all the missing weapons, he
indicated that some of the weapons could be found in Goldstein’s vault and that
some of the weapons had been destroyed. Particularly, Shannahan told federal
agents that he had destroyed a Zastava M61J machine gun registered in his name.
Following Shannahan’s direction, federal agents executed a search of Goldstein’s
vault and discovered, inter alia, the Zastava that Shannahan had indicated he
destroyed. Federal agents then telephoned Shannahan and asked him whether he
had any documentation that the Zastava had in fact been destroyed according to
federal regulations. Shannahan complied with this request for documentation and
faxed to the ATF a document which indicated that the Zastava had been destroyed.
On 3 April 2003, a federal grand jury returned a second superceding
indictment which charged Shannahan with eleven counts of unlawfully transferring
a firearm, in violation of 26 U.S.C. § 5861(e), and one count of making a false
3
statement, in violation of 18 U.S.C. § 1001(a)(2). Pursuant to a plea agreement,
Shannahan pled guilty to one count of unlawfully transferring a firearm and
proceeded to sentencing. At the sentencing hearing, however, the government
contended that Shannahan admitted to transferring certain weapons to Goldstein
which he had not previously disclosed. As a result, the government, in violation of
the plea agreement that had been negotiated with Shannahan, requested the district
court to apply an obstruction of justice sentence enhancement. Recognizing the
breach, the district court heard argument about whether it should order specific
performance of the plea agreement or whether it should allow Shannahan to
withdraw his plea. After the district court denied Shannahan’s request for specific
performance, Shannahan withdrew his plea and indicated that he wanted to proceed
to trial.
On 13 August 2003, a federal grand jury returned a third superceding
indictment which charged Shannahan with ten counts of unlawfully transferring a
firearm. Shannahan subsequently pled guilty to all ten counts in the indictment.
At sentencing, the district court took testimony and heard argument regarding
whether Shannahan’s conduct merited an obstruction-of-justice enhancement
and/or an acceptance-of-responsibility reduction. Specifically, the district court
considered Shannahan’s fax to ATF agents which indicated that the Zastava had
4
been destroyed. The district court found that Shannahan had indicated to ATF
agents when they first searched his residence that he believed he had destroyed the
Zastava and subsequently faxed them false documentation supporting that
assertion. Despite this finding, Shannahan argued that he was not wilfully
misleading the ATF. He argued that his conduct was not wilful because he faxed
the document in response to the ATF’s request for documentation. In addition, he
indicated that he intended to destroy the weapon at the time the faxed document
was created, although he never carried out this intent. Moreover, he argued that his
fax could not have misled federal authorities because they were in possession of
the Zastava when they contacted him for more information. Despite these
arguments, the district court found that the obstruction-of-justice enhancement was
warranted because Shannahan produced a falsified document to the ATF without
informing them that it was not accurate. As a result of this ruling, the district court
found that Shannahan would be eligible for an acceptance-of-responsibility
sentence reduction only if he showed extraordinary circumstances. Because
Shannahan was unable to make this showing, the district court found that an
acceptance-of-responsibility reduction was not warranted. Shannahan was
sentenced to fifty-six months of imprisonment.
On appeal, Shannahan argues that the district court erred by denying his
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request for specific performance of the plea agreement he negotiated with the
government. Particularly, Shannahan argues that the district court should have
enforced the provision in which the government agreed not to argue for an
obstruction-of-justice sentence enhancement. In addition, Shannahan argues for
the first time on appeal that the district court’s use of the United States Sentencing
Guidelines (“Guidelines”) to enhance his sentence for obstruction of justice
violated his Sixth Amendment rights pursuant to Blakely. Finally, his arguments
based on the plea agreement and Blakely notwithstanding, Shannahan argues that
the district court erred in its application of the Guidelines by imposing the
obstruction-of-justice enhancement and by denying the acceptance-of-
responsibility reduction. We address each argument in turn.
II. DISCUSSION
A. Request for Specific Performance
We review for an abuse of discretion the district court’s decision not to grant
specific performance of a plea agreement. See United States v. Tobon-Hernandez,
845 F.2d 277, 281 (11th Cir. 1988). Following the government’s breach of a plea
agreement,1 the district court has two options: (1) order specific performance,
which entitles the defendant to resentencing before a different judge in accordance
1
On appeal, the government does not contend that it did not breach the plea agreement.
Accordingly, our analysis focuses on the remedies for breach of a plea agreement.
6
with the terms of the plea agreement; or (2) allow the defendant to withdraw the
plea of guilty and proceed to trial. See id. at 280 (citing Santobello v. New York,
404 U.S. 257, 263, 92 S. Ct. 495, 499 (1971)). “While the choice of a remedy is
within the discretion of the court rather than the defendant, the remedy of
withdrawal of the guilty plea has not been favored in this circuit.” United States v.
Jefferies, 908 F.2d 1520, 1527 (11th Cir. 1990). This preference for specific
performance recognizes the necessity for the government to honor plea agreements
and for courts to ensure that defendants receive the benefit of the bargain they
negotiated in exchange for their surrender of certain constitutional rights to trial.
See Santobello, 404 U.S. at 262, 92 S. Ct. at 499. Where practical considerations
would make specific performance problematic, however, withdrawal of the guilty
plea is a sufficient remedy for the government’s breach. See United States v.
Taylor, 77 F.3d 368, 372 (11th Cir. 1996) (concluding that withdrawal was the
appropriate remedy because the government’s breaching statements were part of
the record that likely would have been examined by a different sentencing judge
had specific performance been ordered).
Based on the foregoing, the district court did not abuse its discretion by
denying Shannahan’s request for specific performance of the plea agreement. As
the district court noted, the probation officer’s presentencing investigation report
7
(“PSR”) recommended a sentence enhancement for obstruction of justice based on
Shannahan’s fax of a document to the ATF regarding the destruction of the
Zastava. Accordingly, had the district court granted the specific performance
sought by Shannahan, the newly appointed sentencing judge likely would have
been confronted with a PSR containing the same recommendation. Consequently,
the record containing Shannahan’s responses to questions relating to the fax and
the government’s arguments for enhancement in breach of the agreement would
have been relevant to, and the subject of, subsequent sentencing proceedings.
Thus, based on Taylor, withdrawal was the proper remedy because the grant of
specific performance would not have effectively remedied the breach. See id.
Moreover, the district court found, and our review of the record confirms, that
Shannahan was not consistent in the statements he made under oath during various
sentencing proceedings. See, e.g., R6 at 33-34; R10 at 85. Thus, while our
preference is to grant specific performance where a defendant has adhered to the
terms of the agreement, see United States v. Rewis, 969 F.2d 985, 989 (11th Cir.
1992), the district court found, and we agree, that Shannahan’s conduct did not
merit giving him the benefit of the bargain he made. Because the district court “is
in a better position to decide whether the circumstances of [a] case require”
specific performance or withdrawal, we have adopted a deferential standard of
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review for district court orders that remedy breaches of plea agreements. See
Santobello, 404 U.S. at 263, 92 S. Ct. at 499. Based on that standard, and on the
facts of this case, we cannot conclude that the district court abused its discretion by
refusing to order specific performance and by allowing Shannahan to withdraw his
plea.
B. Blakely/Booker Claim
Because Shannahan raises his Blakely/Booker claim for the first time on
appeal, we review for plain error. See United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005). To prevail under a plain error standard, the appellant must
establish: (1) an error; (2) that the error is plain; and (3) that the plain error affected
substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,
1785 (2002) (citation omitted). Once the appellant proves these three elements, we
may correct the error only if it “‘seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (citation omitted).
On 12 January 2005, the United States Supreme Court decided United States
v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), which applied the Blakely analysis
to the Guidelines and held that their mandatory application was unconstitutional
under the Sixth Amendment. See 543 U.S. at ___, 125 S. Ct. at 749-56.
Subsequently, we have decided that, on review of Booker and Blakely claims
9
raised for the first time on appeal, a district court’s enhancement of a sentence
under mandatory sentencing guidelines will meet the first and second prongs of the
plain error test. See Rodriguez, 398 F.3d at 1298-99. On review of the third
prong, however, we must determine “whether there is a reasonable probability of a
different result if the guidelines had been applied in an advisory instead of binding
fashion by the sentencing judge.” Id. at 1301. The defendant bears the burden to
show that a different outcome would have resulted in the absence of the error. See
id. at 1300. Accordingly, where it is unclear whether the sentence would have
been different had the Guidelines been applied in an advisory manner, the sentence
must be affirmed. See id. at 1301 (determining that the defendant failed to satisfy
the third prong because the record revealed nothing about whether the sentencing
judge would have imposed a different sentence had the Guidelines been advisory);
see also United States v. Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005)
(concluding the defendant met the “heavy burden” on the third prong where the
sentencing judge imposed a sentence at the lower end of the Guidelines and made
several comments that “the sentence required by the Guidelines was too severe”).
Assuming, based on Rodriguez, that Shannahan can meet the first two
prongs of the plain error test, we proceed to analyze the third prong. The district
court sentenced Shannahan to fifty-six months of imprisonment, which the district
10
court characterized as “fairly much in the middle” of the applicable Guidelines
range, R10 at 94, which was fifty-one to sixty-three months. The district court
explained it was “not sentencing [Shannahan] at the low end” and it was “not
sentencing [him] at the high end” of the Guidelines range because it “kn[e]w of no
reason to sentence [him at] either place.” Id. Aside from these comments, the
district court expressed no other views about the sentence range imposed by the
Guidelines. Accordingly, it is unknown what the sentencing court would have
done if the Guidelines were considered advisory and not mandatory and therefore
Shannahan has failed to sustain his burden under Rodriguez. In addition, while the
district court did not comment on what it would have done had the Guidelines been
advisory, there are indicia that the district court would not have imposed a lesser
sentence. First, the district court enhanced the sentence for obstruction of justice
and declined to reduce the sentence for Shannahan’s acceptance of responsibility.
Second, the district court found that Shannahan was not “forthcoming and honest”
throughout the sentencing proceedings. Id. at 85. Third, we note that, in the
absence of the Guidelines, the district court could have imposed ten years of
imprisonment for each count of unlawfully transferring a firearm. 28 U.S.C. §
5871. Thus, although the district court ultimately sentenced Shannahan to the
lower-middle of the Guidelines range, we cannot conclude based on the record that
11
the district court would have imposed a lesser sentence had the Guidelines been
advisory. See United States v. Orduno-Mireles, __ F.3d __, __ n.4 (11th Cir. Apr.
6, 2005) (concluding that a defendant had not met the third plain error prong
because the record demonstrated that the district court would not have imposed a
“lesser sentence” than the one given under the Guidelines). In sum, Shannahan has
failed to meet the third prong of the plain error test under Rodriguez and therefore
we reject his claim that the district court committed reversible Booker error.
C. Section 3C1.1 Sentence Enhancement for Obstruction of Justice
When considering an appeal from a district court’s enhancement of a
sentence under § 3C1.1 of the Guidelines for obstruction of justice, the standard of
review is dictated by the circumstances of the case. “Where the district court must
make a particularized assessment of the credibility or demeanor of the defendant,
we accord special deference to the district court’s credibility determinations, and
we review for clear error.” United States v. Amedeo, 370 F.3d 1305,1318 (11th
Cir. 2004). “‘Conversely, where the defendant’s credibility or demeanor is not at
issue, and the defendant’s conduct can be clearly set forth in detailed,
non-conclusory findings, we review de novo the district court’s application of the
enhancement.’” Id. (citation omitted). Here, the district court assessed a § 3C1.1
enhancement based in part on its finding that Shannahan had not been
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“forthcoming” in the sentencing proceedings. R10 at 82. Accordingly, because
this represents a credibility determination on the part of the district court, we
review the district court’s imposition of the obstruction-of-justice enhancement for
clear error.
Section 3C1.1 of the Guidelines provides that a district court may impose a
two-level enhancement if it finds that: (1) “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice during
the course of the investigation,” and (2) the obstructive conduct related to the
offense for which the defendant was convicted. U.S.S.G. § 3C1.1. The
Application Notes for this section of the Guidelines provide that “producing or
attempting to produce a false, altered, or counterfeit document or record during an
official investigation” is a type of action that warrants a two-level obstruction of
justice enhancement. Id. at Application Note 4(c). Construing this provision, we
have previously found that a two-level enhancement was appropriate when a
defendant produced to the government during discovery a document which was
false. See United States v. Callahan, 981 F.2d 491, 496-97 (11th Cir. 1993)
(finding that evidence discovered by the government proved that the document
could not have been executed when the defendant claimed it was executed).
Based on the foregoing, the district court did not err in applying the
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obstruction-of-justice enhancement. Although Shannahan argues that the
enhancement should not apply because he did not fax the document to the ATF
with the intention to mislead, the district court made a credibility assessment of
Shannahan’s testimony and we must accord special deference to that
determination. Accordingly, without more than Shannahan’s assertion of his good
intentions, we cannot accept his argument. Moreover, Shannahan’s alternative
argument—that the enhancement should not apply because the ATF already had in
its possession the Zastava and therefore could not have been misled by the fax—is
equally unpersuasive. Application Note 4(c), in contrast to other types of
obstructive conduct listed in the Guidelines, does not contain any qualifier that the
production of a document materially mislead federal authorities. Compare
U.S.S.G. § 3C1.1 at Application Note 4(c), with id. at Application Note 4(d)
(stating that an enhancement is warranted for “destroying or concealing or
directing or procuring another person to destroy or conceal evidence that is
material to an official investigation”); id. at Application Note 4(g) (stating that an
enhancement is warranted for “providing a materially false statement to a law
enforcement officer). Both the plain text of Application Note 4(c) and our
precedent demonstrate that the enhancement is appropriate upon the production of
the false document to the government, which Shannahan accomplished here when
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he faxed the false document to the ATF. See Callahan, 981 F.2d at 496-97.
Additionally, Callahan refutes Shannahan’s final argument that the enhancement
cannot be applied because Shannahan sent the fax in response to the ATF’s request
for documentation. See id. (determining that a § 3C1.1 enhancement was
appropriate where defendant produced a false document in response to a
government discovery request). In essence, Shannahan sent a false document to
federal authorities knowing that it was false without informing them of its falsity.
Because this constitutes obstruction under the plain text of Application Note 4(c)
and our precedent, and because it and the evasiveness of Shannahan’s subsequent
testimony about the fax have resulted in the needless expenditure of judicial
resources to determine the truth, the district court appropriately enhanced
Shannahan’s sentence for obstruction of justice. See U.S.S.G. § 3C1.1 at
Application Note 4(c); Callahan, 981 F.2d at 496-97; United States v. Witherell,
186 F.3d 1343, 1345 (11th Cir. 1999) (per curiam) (finding § 3C1.1 enhancement
appropriate where defendant’s conduct unnecessarily caused the waste of judicial
resources).
D. Section 3E1.1 Sentence Reduction for Acceptance of Responsibility
We review a district court’s determination as to an acceptance-of-
responsibility sentence level reduction for clear error. United States v. Williams,
15
340 F.3d 1231, 1241 (11th Cir. 2003).
Section 3E1.1 of the Guidelines provides that “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense
level by 2 levels.” U.S.S.G. § 3E1.1(a). A defendant can qualify for an additional
one level reduction if the defendant assists the government by timely notifying the
authorities of the intention to enter a plea of guilty. Id. at § 3E1.1(b). The entry of
a guilty plea, however, is not sufficient by itself to entitle a defendant to the
reduction. See id. at Application Note 3. Moreover, if a defendant is assessed a §
3C1.1 enhancement for obstruction of justice, the § 3E1.1 reduction can be granted
only in “extraordinary” circumstances. Id. at Application Note 4. The burden of
proof is on the defendant to show that the sentence reduction is merited. See
United States v. Paslay, 971 F.2d 667, 675 (11th Cir. 1992).
Based on these standards, the district court did not clearly err by denying
Shannahan the § 3E1.1 reduction. Although Shannahan pled guilty twice, the
entrance of the guilty pleas did not necessarily entitle Shannahan to the reduction.
In evaluating the propriety of the reduction, the district court remarked that the
defendant was not “forthcoming” in his testimony. R10 at 85. Because the “[t]he
district court is in a unique position to evaluate whether a defendant has accepted
responsibility for his acts,” the district court’s credibility determinations are
16
“‘entitled to great deference on review.’” Paslay, 971 F.2d at 675 (citation
omitted); see Williams, 340 F.3d at 1241 (noting how the district court must make
a determination of the defendant’s “sincerity”). According due deference to the
district court’s characterization of Shannahan’s testimony and conduct, we cannot
conclude that the district court’s finding—that Shannahan’s conduct did not
present an “extraordinary” case where both a § 3C1.1 enhancement and a § 3E1.1
reduction applied—was clearly erroneous. See United States v. Arguedas, 86 F.3d
1054, 1060 (11th Cir. 1996) (determining that a § 3E1.1 reduction was
inappropriate where the defendant made certain “misstatements” to investigators
and the district court).
III. CONCLUSION
On appeal, Shannahan argued that the district court improperly sentenced
him to fifty-six months of imprisonment because it failed to order specific
performance of the breached plea agreement, committed Booker error, and
misapplied §§ 3C1.1 and 3E1.1 of the Guidelines. As we have explained,
however, the district court did not commit reversible error in making these
determinations at Shannahan’s sentencing. Accordingly, the sentence imposed by
the district court is AFFIRMED.
17
TJOFLAT, Circuit Judge, concurring specially:
As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,
structural error occurs, and the third prong of the plain-error test is therefore
inapplicable, where the district court enhances the defendant’s sentence on the
basis of facts not admitted by the defendant or found by a jury beyond a reasonable
doubt. See United States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th Cir.
Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).2
Accordingly, the court should consider whether this structural error “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d
508 (1993). The court declines to do address this point because, as I agree, it is
Rodriguez bound.
2
Here, the court enhanced Shannahan’s base offense level, and thus his sentences, by
two levels pursuant to U.S.S.G § 3C1.1 for conduct he denied, obstruction of justice. Had the
court not enhanced the base offense level in this way, the Guidelines sentence range would have
been 41 to 51 months instead of 51 to 63 months, and the court could not have imposed
concurrent prison sentences of 56 months.
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