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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10428
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00190-SPC-MRM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EILEEN SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 14, 2021)
Before JILL PRYOR, BRANCH and LUCK, Circuit Judges.
PER CURIAM:
Eileen Smith pled guilty to conspiracy to distribute and possession with
intent to distribute cocaine base, heroin, and fentanyl, and she was sentenced to
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168 months’ imprisonment. On appeal, Smith challenges her conviction and
sentence. As to her conviction, Smith argues that she should be permitted to
withdraw her plea because it was not knowingly and voluntarily entered; Smith
contends that she did not understand the sentencing consequences of her plea when
she entered it. As to her sentence, Smith argues that it is procedurally and
substantively unreasonable because the district court did not consider the 18 U.S.C.
§ 3553(a) factors and imposed upon her an excessive punishment given her limited
participation in the conspiracy and her background.
We reject Smith’s challenges. Smith’s plea was knowing and voluntary
even though she was not expressly informed by the district court that her co-
conspirators’ conduct might influence her sentence. And her sentence is
procedurally and substantively reasonable because the record demonstrates that the
district court considered the § 3553(a) factors and imposed upon Smith a sentence
within the bounds of its discretion. We therefore affirm.
I. BACKGROUND
Smith pled guilty to one count of conspiracy to distribute and possession
with intent to distribute cocaine base, fentanyl, and heroin in violation of 21 U.S.C.
§§ 841(b)(1)(B), 846. Her conviction came after a grand jury indicted Smith and
nine co-conspirators for their participation in a large drug organization in the
Suncoast Estates area of North Fort Meyers, Florida.
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Smith participated in the conspiracy for at least 48 days. During that time,
Smith conspired with Tony Wilson, Jr., the organization’s leader, and others, to
distribute and possess with intent to distribute controlled substances. On numerous
occasions, Smith delivered controlled substances to, and sold those substances
from, the organization’s hub, which was referred to by Smith’s co-conspirators as
the “big house.” On one occasion, Smith was present at the big house when
members of Wilson’s organization, equipped with firearms, brawled with members
of a rival drug distribution organization.
Smith was also present when authorities executed a search warrant at the big
house and seized over 330 grams of cocaine base and over 65 grams of a heroin
and fentanyl mixture, which was to be distributed by Smith and her co-
conspirators. A few weeks after the seizure, during a traffic stop, Smith was found
in possession of cocaine base that she intended to distribute on behalf of the
organization. Two days after the traffic stop, an individual Smith suspected of
being a confidential informant arrived at a house in Suncoast Estates that was used
by the organization to distribute controlled substances. Smith and at least one
other individual confronted the suspected confidential informant then struck her
repeatedly, including on the head. As the suspected confidential informant fled,
Smith accused her of assisting authorities and threatened her with death as
retribution for that assistance.
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After Smith was apprehended and indicted, she waived her right to have her
plea directly heard by the district court and proceeded to a plea colloquy with a
magistrate judge. The magistrate judge explained to Smith that he would inform
her of the consequences of entering a guilty plea and ask her questions to
determine whether her decision was knowing and voluntary.
Among other things, the magistrate judge informed Smith that: the penalty
for her offense included a “mandatory minimum term of imprisonment of at least
five years up to forty years,” the United States Sentencing Guidelines applied to
her case, the district court would determine her sentence, and the district court
would calculate the guidelines range. Doc. 437 at 16–18. 1 The magistrate judge
also informed Smith that the guidelines range was only advisory, the district court
could impose “any sentence up to the maximum allowed by law,” and Smith would
remain bound by her plea even if her sentence exceeded “any estimated sentence
that [her] attorney or anyone else ha[d] given [her]” and was “higher than [she
expected].” Id. at 18–19. Smith confirmed that she understood the information
presented to her by the magistrate judge and that she had discussed the sentencing
guidelines with her counsel and “how they might apply.” Id. at 17. The magistrate
judge issued a report and recommendation that included his factual findings that
1
“Doc.” numbers refer to the district court’s docket entries.
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Smith’s guilty plea was knowing and voluntary and recommended that the district
court accept Smith’s plea, which the district court did.
The case proceeded to sentencing. At sentencing, the district court found
that Smith’s offense involved 1.53 kilograms of crack cocaine and 960 grams of
heroin. Based on this drug quantity, Smith’s base offense level was 32. She
received a two-level enhancement because she was present at the big house when
her co-conspirators were armed in furtherance of the conspiracy and another two-
level enhancement because she made credible threats of violence to the suspected
confidential informant based on her belief that the individual was acting as an
informant. See U.S.S.G. § 2D1.1(b)(1), (2). She received a three-level reduction
of her offense level for acceptance of responsibility. See id. § 3E1.1(a), (b). Based
on Smith’s total offense level of 33 and her criminal history category of I, her
guidelines range was 135 to 168 months, the calculation of which is unchallenged
on appeal.
Smith sought a sentence below the guidelines range. She argued that the
mandatory minimum term of imprisonment, five years, would be an appropriate
sentence because of her difficult upbringing: her parents were incarcerated when
she was a minor, she was placed in foster care, was abused by her stepfather, and
developed substance abuse problems. She also pointed out that she did not
actually possess a weapon, participated in the conspiracy for only 48 days,
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cooperated with authorities, and was influenced by her romantic relationship with
the organization’s leader.
The district court denied Smith’s request for a sentence below the guidelines
range and sentenced her to a 168-month term of imprisonment. 2 The district court
considered § 3553(a) and based the sentence on a variety of factors, including: the
nature of the conspiracy and the extent of Smith’s participation in it, her family
history and background, her motive, her relationship to the organization’s leader,
her presence during the altercation involving firearms, her knowledge of the
conspiracy’s ends, and the threats she made to the suspected confidential
informant.
This is Smith’s appeal.
II. STANDARD OF REVIEW
The parties disagree on what standard of review applies when a defendant
challenges her plea as involuntary for the first time on appeal. Compare
Appellant’s Br. at 7–8 (citing United States v. Frye, 402 F.3d 1123, 1126–27 (11th
Cir. 2005)) with Appellee’s Br. at 18 (citing United States v. Rodriguez, 751 F.3d
1244, 1251 (11th Cir. 2014)). We need not resolve that disagreement in this case
2
The court ruled that Smith was to receive 12 months’ credit based on time she had
served in prison on a related state battery charge.
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because Smith’s argument that her plea was involuntary fails under any standard of
review.
We review for an abuse of discretion the procedural and substantive
reasonableness of a sentence. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Cabezas-Montano, 949 F.3d 567, 610 (11th Cir. 2020).
III. DISCUSSION
Smith argues that her guilty plea was not knowing and voluntary, and is
therefore invalid, because she was unaware that her co-conspirators’ conduct could
influence the length of her sentence. She also argues that the sentence imposed by
the district court is procedurally and substantively unreasonable. We discuss
Smith’s challenge to her conviction before turning to her sentencing challenge.
A guilty plea “cannot support a judgment of guilt unless it was voluntary in
a constitutional sense.” Frye, 402 F.3d at 1127 (internal quotation marks omitted).
“A plea is voluntary in a constitutional sense if the defendant receives real notice
of the charge against [her] and understands the nature of the constitutional
protections [she] is waiving.” Id. The district court must establish that (1) the
guilty plea is free from coercion, (2) the defendant understands the nature of the
charges, and (3) the defendant knows and understands the consequences of her
guilty plea. Id.
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Smith argues that her plea did not satisfy the third requirement because she
“did not receive real notice of the true consequences of entering a guilty plea to the
charged crime.” Appellant’s Br. at 15. Smith did not understand and consent to
the consequences of her plea, she contends, because “the [district] court never
indicated to [her] that she could be sentenced based on the conduct of co-
conspirators,” and the court “in fact relied extensively on co-conspirator conduct”
at sentencing when it increased Smith’s sentence based on her co-conspirator’s use
of a firearm and imposed the maximum sentence under the guidelines. Id.
We reject this argument. The magistrate judge explained to Smith that
before imposing a sentence the district court would calculate her guidelines range,
and Smith attested that her counsel “explained to [her] the various factors the
[district court could] consider in determining a guidelines range.” Doc. 437 at 18.
She was also aware that the range was “only advisory” and that the district court
could impose a sentence “more severe” than the range’s ceiling. Id. Smith does
not argue that the guidelines range was erroneously calculated or that the district
court legally erred by relying on co-conspirator conduct in calculating that range.
Nor does she argue that it was unlawful for the district court to consider the nature
of the conspiracy in weighing the § 3553(a) factors in determining her sentence.
In effect, then, Smith’s challenge to her conviction amounts to an argument
that her plea was involuntary because she was not informed, in advance of her
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plea, which sentencing enhancements would influence the guidelines calculation or
how the district court would exercise its discretion in determining her sentence.
This argument is foreclosed by settled law. See United States v. Bozza, 132 F.3d
659, 661–62 (11th Cir. 1998) (holding that a district court has no obligation to
inform a defendant that a specific sentencing enhancement may be applied so long
as the defendant had notice of the possible enhancement); United States v. Pease,
240 F.3d 938, 941 & n.2. (11th Cir. 2001) (rejecting defendant’s argument that his
plea was “involuntary” because he “did not understand how severe the sentence
under the plea agreement might be”); see also Fed. R. Crim P. 11 advisory
committee’s note to 1989 amendment (explaining that district courts are not
required to “specify which guidelines will be important or which grounds for
departure might prove to be significant” because it is “impracticable, if not
impossible, to know which guidelines will be relevant prior to the formulation of a
presentence report and resolution of disputed facts”). We are therefore
unpersuaded that Smith’s plea was involuntary in the constitutional sense and we
thus affirm her conviction. 3
3
Citing our decision in United States v. Garcia-Sandobal, 703 F.3d 1278, 1283 (11th Cir.
2013), the government contends that Smith waived the argument that her plea was invalid
“because [she] did not object to the report and recommendation that found her guilty plea was
knowing and voluntary.” Appellee’s Br. at 21. We need not consider the limits of Garcia-
Sandobal’s reach because Smith’s argument that her plea is invalid is meritless.
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Smith also argues that her sentence is both procedurally and substantively
unreasonable. As the party challenging the sentence, she bears the burden of
showing it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010).
First, Smith argues that her sentence is procedurally unreasonable. A
sentence is procedurally unreasonable if the court fails to correctly calculate the
guidelines range, treats the guidelines as mandatory, fails to consider the § 3553(a)
factors, selects a sentence based on clearly erroneous facts, or fails to adequately
explain the chosen sentence. United States v. Gonzalez, 550 F.3d 1319, 1323–24
(11th Cir. 2008) (citing Gall, 552 U.S. at 51).4 The district court “does not need to
discuss or state each factor explicitly.” Id. at 1324. “An acknowledgement the
district court has considered the defendant’s arguments and the § 3553(a) factors
[suffices].” Id.
Smith contends that her sentence was procedurally unreasonable because the
district court failed to consider the sentencing factors set forth in § 3553(a), instead
4
Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These
purposes include the need to: reflect the seriousness of the offense, promote respect for the law,
provide just punishment, deter criminal conduct, protect the public from the defendant’s future
criminal conduct, and effectively provide the defendant with educational or vocational training,
medical care, or other correctional treatment. Id. § 3553(a)(2). The court must also consider the
nature and circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guidelines range, the pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
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fashioning a sentence based on her co-conspirators’ conduct. That contention is
belied by the record. The district court expressly stated that it “consider[ed]” the
§ 3553(a) factors. Doc. 619 at 65. And it based the sentence on the “nature and
circumstances of the offense,” the “seriousness” of the offense, the need to
“promote respect for the law,” the need to “provide just punishment,” and the
“need to avoid unwarranted sentencing disparities.” 18 U.S.C. § 3553(a)(1)–(2),
(6); see Doc. 619 at 59–63 (basing the sentence on an equitable comparison of
Smith’s sentence to that of her co-conspirators and Smith’s motive, relationship to
the conspiracy’s leader, contribution to the conspiracy’s violent nature, and
apparent lack of remorse). It also considered Smith’s mitigating arguments. See
Doc. 619 at 59–63 (acknowledging Smith’s substance abuse problems, her difficult
childhood, and the length of her participation in the conspiracy). We therefore
disagree with Smith that the district court “considered none of the 3553(a) factors”
and thus reject her argument that the sentence was procedurally unreasonable.
Appellant’s Br. at 16.5
5
We also reject Smith’s related argument that her sentence was procedurally
unreasonable because the district court’s analysis was influenced by the conduct of her co-
conspirators. Appellant’s Br. at 19. No authority supports the proposition that a district court
may not consider a co-conspirator’s conduct when weighing the § 3553(a) factors. We thus
cannot say the district court erred by considering the nature of the conspiracy that Smith
participated in, given the district court’s obligation to consider the “nature,” “circumstances,”
and “seriousness” of the offense, which in this case was conspiracy to distribute and possession
with intent to distribute controlled substances. 18 U.S.C. § 3553(a)(1)–(2).
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Second, Smith argues that her sentence is substantively unreasonable. When
reviewing a sentence for substantive reasonableness, we examine the totality of the
circumstances, including “whether the statutory factors in § 3553(a) support the
sentence in question.” Gonzalez, 550 F.3d at 1324. “We will not second guess the
weight (or lack thereof)[] that [a district court] accorded to a given factor . . . as
long as the sentence ultimately imposed is reasonable in light of all the
circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.
2010) (alterations adopted) (internal quotation marks omitted). We may vacate a
sentence only if we “are left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors by
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc) (internal quotation marks omitted). We may not set aside a sentence
“merely because we would have decided that another one is more appropriate.” Id.
at 1191.
Smith argues her sentence of 168 months’ imprisonment, followed by five
years of supervision, is substantively unreasonable because the sentence does not
“fit the crime” given that Smith participated in the conspiracy for only 48 days.
Appellant’s Br. at 21 (quoting Irey, 612 F.3d at 1206). She contends that the
district court, instead, should have granted her motion for a sentence reduction and
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imposed a sentence well below her guidelines range. We cannot say that the
district court abused its discretion.
In arriving at the sentence, the district court balanced the fact that Smith
“participated in the offense for . . . 48 days” against a multitude of other factors,
including her close relationship with the conspiracy’s leader, involvement in
threatening individuals whom she suspected of endangering the criminal
organization, presence at the episode where a rival drug dealer was threatened with
automatic firearms, and knowledge of the “phenomenal” amount of drugs being
distributed by the enterprise. Doc. 619 at 62–63. The district court also considered
whether the sentence was fair relative to the sentences imposed upon Smith’s co-
conspirators and other related defendants. Id. at 59–61 (considering the extent to
which Smith and her co-conspirators participated in the conspiracy, their different
criminal histories, the assistance they provided the government, and their
motivations).
The 168-month (14-year) sentence imposed by the district court was within
the guidelines range and well below the statutory maximum of 40 years. See
Gonazalez, 550 F.3d at 1324 (“We ordinarily expect a sentence within the
[g]uidelines range to be reasonable . . . .”). Given the facts discussed by the district
court at sentencing—particularly Smith’s participation in a group assault on, and
the violent threats she made to, a suspected confidential informant—we cannot say
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with a definite and firm conviction that the district court’s sentence was
unreasonable because Smith participated in the conspiracy for only 48 days. See
Gall, 552 U.S. at 51. Regardless of whether we would have imposed the same
sentence, we must therefore reject Smith’s argument that the district court abused
its discretion in determining her sentence.
AFFIRMED.
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