[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11920 MARCH 16, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00042-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL HILL,
a.k.a. Prat,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 16, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Samuel Hill appeals his conviction, imposed pursuant to a jury verdict, and
240-month sentence for conspiracy to possess with intent to distribute 50 grams or
more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and
distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). On
appeal, he argues: (1) the evidence was insufficient to support his convictions, and
(2) his 240-month sentence, which was imposed after the district court considered
factors enumerated in 18 U.S.C. § 3553(a) and was below the applicable 292 to
365 months’ advisory Guidelines range, was unreasonable under United States v.
Booker, 543 U.S. 220 (2005).1 After thorough review of the record and careful
consideration of the parties’ briefs, we affirm.
We review the sufficiency of the evidence de novo, viewing the evidence
and drawing all reasonable inferences in favor of the jury’s verdict. See United
States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). We must affirm Hill’s
convictions unless there is no reasonable construction of the evidence from which
the jury could have found the appellant guilty beyond a reasonable doubt. Id. We
review the district court’s interpretation of the Sentencing Guidelines de novo and
1
We have jurisdiction to review the reasonableness of Hill’s sentence, pursuant to 18
U.S.C. § 3742. See United States v. Martinez, 434 F.3d 1318 (11th Cir. 2006) (rejecting
government’s threshold argument that this Court lacks jurisdiction under 18 U.S.C. § 3742(a) to
review a sentence within a correctly-calculated guideline range for reasonableness; concluding that
“a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside the
advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law
pursuant to § 3742 (a)(1)” (emphasis added)).
2
its factual findings for clear error. See United States v. Jordi, 418 F.3d 1212, 1214
(11th Cir.), cert. denied, 126 S. Ct. 812 (2005). After the district court correctly
calculates the advisory Guidelines range,2 the court may impose a sentence that
falls outside the Guidelines range, which we are obliged to review for
reasonableness. Jordi, 418 F.3d at 1215. Our reasonableness analysis is guided by
the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Winingear,
422 F.3d 1241, 1245-46 (11th Cir. 2005). And our “[r]eview for reasonableness is
deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he
party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both th[e] record and the factors in section
3553(a).” Id.
The relevant facts are straightforward. On October 14, 2004, Hill was
charged by a superceding indictment with conspiracy to possess with intent to
distribute 50 grams or more of crack cocaine between 1999 and 2002, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (Count 1), and two counts of distribution
of crack cocaine, based on sales that occurred on May 15, 2003 and May 16, 2003,
both in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 2 and 3). Hill pled
not guilty and proceeded to a jury trial.
2
Hill does not challenge the district court’s calculation of the advisory Guidelines range.
3
During the government’s case-in-chief, Willie Lee Brown, who testified
pursuant to a plea agreement, stated that he sold crack cocaine to Hill from
sometime in 1999 through December 2002. His early sales to Hill occurred two or
three times per week and each consisted of between three-and-a-half and seven
grams of crack cocaine. In each of the last sales, which occurred twice a week
during the months of October, November, and December of 2002, Brown sold Hill
about four ounces of crack cocaine. Brown never saw Hill use the drugs himself,
and the amounts and frequency of his sales to Hill resulted in a larger amount than
an individual user would buy. In some of the sales, the crack cocaine was cut up
and ready for distribution when sold to Hill.
Bruce Leneal Norflee, who also testified pursuant to a plea agreement, stated
that he and Hill entered into an agreement whereby he would sell crack cocaine to
Hill. About three or four times a week during 1999 to 2002, Norflee sold between
a quarter of an ounce and one ounce of crack cocaine to Hill. Notably, Hill told
Norflee that he was selling the drugs to people where he worked.
Robert Randall Moody testified that he was paid by the Drug Enforcement
Administration (“DEA”) to make undercover drug buys over a period of about
three years. In May 2003, he made two purchases of crack cocaine from Hill. On
May 15, 2005, Moody was in Hill’s neighborhood when Hill approached Moody’s
4
car. Moody initially indicated he wanted to purchase $200 worth of crack cocaine.
Hill proceeded to produce a cake pan with crack cocaine in it and sold Moody
$400 worth of the crack. Moody testified that he returned to the area on the
following day, May 16th, and purchased more crack cocaine from Hill, in an
amount that Moody could not remember.
Moody identified a videotape of himself and Hill during the cocaine
purchase and sale on May 15, 2003. The video was played for the jury during
Moody’s testimony. The government also introduced a transcript of the
conversation heard on the videotape. Moody explained that the actual purchase
and sale took place out of the viewing of the video camera. As for the May 16th
transaction, the video camera malfunctioned so that there was no recording of that
purchase and sale.
Finally, Lake County Sheriff’s Lieutenant Jerry Montalvo testified that he
received information from Brown, Norflee, and others that Hill was distributing
crack cocaine in Umatilla, Florida. Lieutenant Montalvo stated that the drug
transaction partially depicted in the videotape occurred on May 15, 2003.
After the government rested, Hill moved for judgment of acquittal, which
the district court denied, and did not call any witnesses or present any evidence.
The jury returned a verdict finding Hill guilty of conspiracy to possess with intent
5
to distribute 50 grams or more of crack cocaine and distribution of crack cocaine
on May 15, 2003, but not guilty of the remaining count of distribution of crack
cocaine on May 16, 2003. Hill proceeded to sentencing.
The presentence investigation report (“PSI”) recommended a base offense
level of 38, pursuant to U.S.S.G. § 2D1.1, and no adjustments. With a total offense
level of 38 and a criminal history category III, Hill faced an advisory sentencing
range of 292 to 365 months’ imprisonment. D uring the sentencing hearing,
defense counsel indicated that the only objection he had to the PSI was a factual
correction regarding one of Hill’s prior convictions, but noted that it did not affect
the criminal history score. The court corrected the PSI to reflect the requested
change and then adopted the factual allegations and Guidelines calculation in the
PSI, noting that the Guidelines range was merely advisory. Defense counsel also
recognized that Hill was subject to a 10-year mandatory minimum sentence, but
argued that he deserved a sentence below the advisory Guidelines range. In
support of mitigation, Hill’s parents both made statements describing Hill’s home
life. Hill was then living with his second wife and their five-month-old baby and
two other young children. Hill also had two other children from a previous
marriage, for whom he consistently made child support payments.
6
Prior to imposing sentence, the district court observed that Hill’s case was
very serious because it involved the distribution of 4.5 kilograms of crack cocaine,
but was unusual because there was nothing in Hill’s background to suggest his
involvement in this type of activity. The court further noted the following factors
supporting mitigation: (1) Hill’s prior offenses were primarily traffic-related; (2)
he had made substantial child support payments over many years; (3) he had
remained steadily employed; and (4) he had a diminished likelihood of recidivism
due to his age. The court found that a sentence below the advisory range was
warranted and imposed a sentence of 240 months’ imprisonment to be followed by
a four-year term of supervised release. This appeal followed.
First, Hill challenges the sufficiency of the evidence to support his
convictions. His primary arguments concern the credibility of the government’s
witnesses.3 He argues that Moody’s testimony was suspect because of his criminal
record and the fact that he was paid by the DEA for his cooperation and testimony.
Likewise, he asserts that Brown and Norflee could not be believed because they
3
We reject Hill’s other challenges to the sufficiency of the evidence, which include that
(1) the videotape admitted at trial did not show a drug deal and had the wrong date on it; (2) there
was no evidence that Hill had any assets, even though drug dealers make a lot of money; (3) there
were no phone records to corroborate testimony about phone conversations; and (4) there was no
fingerprint, voice print, or cassette tape evidence at trial. We are satisfied that under a reasonable
construction of the evidence, drawing all inferences in favor of the jury’s verdict, the jury could find
guilt beyond a reasonable doubt.
7
testified pursuant to plea agreements with the government, in the hopes of
receiving reductions in their own sentences.
It is well-established that credibility determinations are the sole province of
the jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997),
modified on other grounds by United States v. Toler, 144 F.3d 1423, 1427 (11th
Cir. 1998). “The fact that [a witness] has consistently lied in the past, engaged in
various criminal activities, [and] thought that his testimony would benefit him . . .
does not make his testimony incredible.” United States v. Cravero, 530 F.2d 666,
670 (5th Cir. 1976).4 Rather, for testimony to be considered incredible as a matter
of law, “it must be unbelievable on its face, i.e., testimony as to facts that [the
witness] could not have possibly observed or events that could not have occurred
under the laws of nature.” United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.
1985) (quotation marks omitted) (alteration in original). Put another way, “[i]t
must be testimony as to facts that the witness physically could not have possibly
observed or events that could not have occurred under the laws of nature.”
Calderon, 127 F.3d at 1325 (quotation omitted). Moreover, judgment of acquittal
is not required “because the government’s case includes testimony by ‘an array of
4
In Bonner v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit rendered prior to the close of business
on October 1, 1981.
8
scoundrels, liars, and brigands.’” United States v. Hewitt, 663 F.2d 1381, 1385
(11th Cir. 1981) (citation omitted).
The jury, by its verdict, found the testimony of the government’s witnesses
credible. Brown and Norflee testified that they sold large amounts of crack
cocaine to Hill on a weekly basis for an extended period of time. Notably, Norflee
testified that Hill said he was selling the crack cocaine to others. Moreover,
Moody testified to the May 15th sale of crack cocaine and the jury viewed a
videotape and transcript of that transaction. All three of these witnesses were
extensively questioned on direct and cross-examination regarding their
self-interest, including their plea bargains. Moreover, the plea bargains and
unreliability of the witnesses also were thoroughly explored and discussed during
defense counsel’s closing argument. Finally, the district court’s instructions to the
jury included the following:
The testimony of some witnesses must be considered with more
caution than the testimony of other witnesses.
For example, a paid informer, or a witness who has been
promised that he or she will not be charged or prosecuted, or a witness
who hopes to gain more favorable treatment in his or her own case,
may have a reason to make a false statement because the witness
wants to strike a good bargain with the Government.
So, while a witness of that kind might be entirely truthful when
testifying, you should consider that testimony with more caution than
the testimony of other witnesses.
9
Simply put, none of Hill’s arguments show that the witnesses for the
government presented testimony that was unbelievable on its face or contained
facts or events that could not possibly have occurred. The jury reasonably could
conclude, beyond a reasonable doubt, that Hill conspired to possess with intent to
distribute and did distribute the crack cocaine as charged in Counts 1 and 2. Thus,
the district court did not err by denying Hill’s motion for judgment of acquittal
based on insufficient evidence.
Hill also challenges his 240-month sentence as unreasonable, arguing that
the circumstances supported a less severe sentence and a downward adjustment
from the advisory Guidelines range in an amount greater than the sentence that he
got, which was 52 months below the Guidelines range. In support of this
argument, he highlights the mitigating evidence, which was considered by the
district court, including: (1) his age, which the district court found tended to
diminish his likelihood to recidivate; (2) child support payments he made, totaling
$11,144 for two children and $30,101 for two other children; (3) his consistent
employment from 1993 to 2003 and eligibility for re-employment; (4) his
background, which the district court found did not suggest involvement in this type
of criminal activity; and (5) the fact that he was married, has three children living
in his home, and was needed at home to provide for his family. Hill further argues
10
that the two co-conspirators who testified against him received sentences of
195 months’ and 168 months’ imprisonment -- a mitigating factor also argued at
the sentencing hearing and considered by the district court. Lastly, he argues that
if he was a large scale distributor of drugs, he would not have lived in
impoverished conditions.
Reviewing Hill’s final sentence, in its entirety, for unreasonableness in light
of the factors in § 3553(a),5 we find no error. See Winingear, 422 F.3d at 1245
(“We do not apply the reasonableness standard to each individual decision made
during the sentencing process; rather, we review the final sentence for
5
Relevant section 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) [what is required for a sentence sufficient, but not greater than necessary, to
comply with] the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
....
(3) the kinds of sentences available;
....
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.
18 U.S.C. § 3553(a).
11
reasonableness.”). At the sentencing hearing, the district court acknowledged that,
based on the advisory nature of the Guidelines, it could sentence Hill outside the
Guidelines range. The court then enumerated the very factors Hill now highlights
on appeal, as supporting a sentence 52 months below the Guidelines range. The
district court’s deliberations reflect consideration of several § 3553(a) factors, apart
from the Guidelines range. See Martinez, 434 F.3d at 1322-23 (affirming
appellant’s sentence against reasonableness challenge and noting that the district
court applied the Guidelines as advisory and its deliberations reflected a
consideration of the 18 U.S.C. 3553(a) factors); United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005) (affirming sentence as reasonable and noting that the
district court calculated the correct Guidelines range, treated the range as advisory,
considered the § 3553(a) factors, and imposed a sentence at the low end of the
Guidelines range). Plainly, the district court considered, among other things, (1)
the nature and circumstances of the offense and the history and characteristics of
the defendant; (2) the seriousness of the offense; and (3) the need to avoid
unwarranted disparities. See 18 U.S.C. § 3553(a).
Because the district court correctly calculated the guidelines range, treated
the range as advisory, took into account sentencing factors listed in § 3553(a), and
12
imposed a sentence below the advisory sentencing range and substantially below
the statutory maximum, we readily conclude Hill’s sentence is reasonable.
AFFIRMED.
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