[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 24, 2007
No. 06-14852 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00020-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT L. BROXTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 24, 2007)
Before BIRCH, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Robert Broxton appeals his 60-month sentence for conspiracy to steal U.S.
mail, in violation of 18 U.S.C. §§ 371, 1708. The district court sentenced Broxton
to 60 months of imprisonment, although he had a guideline range of 33 to 41
months of imprisonment, in consideration of “the nature and circumstances of the
offense and [his] history and characteristics.” Because we find no reversible error,
we AFFIRM.
I. BACKGROUND
A federal grand jury returned an indictment, charging Broxton with, inter
alia, conspiracy to steal U.S. mail, in violation of 18 U.S.C. §§ 371, 1708. He pled
guilty, pursuant to a plea agreement. The plea agreement contained a sentence
appeal waiver, which stated that:
[Broxton] by this agreement waive[s] any right to a direct appeal or
other review of [his] sentence . . . except in the case of an upward
departure from the guidelines pursuant to [§§] 5K2.0 and 4A1.3 and
any claim of ineffective assistance of counsel . . . [He] understands
and agrees that [his] waiver to all other U.S.S.G. findings would still
be in force and effect, notwithstanding [his] reserved right to appeal
an upward departure.
R1-139 at 5. In the agreement, the government stated that it would consider
whether Broxton’s cooperation qualified as substantial assistance, warranting a
government motion for a downward departure pursuant to § 5K1.1. It further
stated that the discretion of whether to file a § 5K1.1 motion rested solely with the
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government, and Broxton’s good faith cooperation that did not substantially assist
in the persecution of another person would not qualify. The agreement also stated
that the “[c]ourt shall order total restitution in this case . . . and that [ Broxton]
agrees to pay the restitution.” Id. at 4. In the stipulation of facts, it stated that
Broxton received about $100,000 cash from the burglary. At the plea hearing, the
district court explained that, by entering a guilty plea, Broxton also was agreeing to
waive his right to appeal his sentence, unless he was claiming ineffective
assistance of counsel or if his sentence exceeded the advisory guideline range.1
Broxton acknowledged that “the Court has the authority under certain
circumstances to impose a sentence that is more or less severe than the sentence
called for by the guidelines.” R1-139 at 4.
The PSI assigned Broxton a base offense level of 6, pursuant to U.S.S.G. §
2B1.1(a)(2). The base offense level was increased by: (1) 12 levels, pursuant to
§ 2B1.1(b)(1)(G), because the loss was more than $200,000, but less than
$400,000; and (2) 2 levels, pursuant to § 2B1.1(b)(12)(A), because the offense
involved conscious or reckless risk of death or serious bodily injury. Broxton’s
offense level then was reduced by 2, pursuant to U.S.S.G. § 3E1.1(a), for
acceptance of responsibility, leaving him with a total offense level of 18. The PSI
1
More specifically, the plea agreement acknowledged Broxton’s “reserved right to
appeal an upward departure.” R1-139 at 5.
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alleged that Broxton had been arrested for sexual assault, robbery, and assault in
1965, and forcible purse snatching in 1977, and he was not released from prison
until 1993. There also were pending charges of attempted murder, aggravated
assault, carrying a firearm in a public place, possession of instruments of a crime,
terroristic threats, simple assaults, and reckless endangerment. With a total offense
level of 18, and a criminal history category of III, Broxton’s applicable guideline
range of imprisonment was 33 to 41 months. The PSI found that Broxton should
pay restitution in the amount of $251,701.24. Broxton objected to the calculation
of the amount of loss for which he was held accountable in restitution, asserting
that he should be accountable only for his portion, which was the amount that he
stipulated to in the plea agreement.
At the sentencing hearing, Broxton withdrew his objections, and the court
accepted the plea agreement. The court reviewed the PSI, stated that the guideline
range was 33 to 41 months of imprisonment, sentenced Broxton to 60 months of
imprisonment, and ordered that he, jointly and severally with his codefendants,
make restitution to the Post Office in the amount of $251,701.24. The court stated
that its sentence was appropriate and complied with the § 3553(a) factors and the
circumstances of the case. It sentenced Broxton in consideration of “the nature and
circumstances of the offense and [his] history and characteristics. . . .” R3-156 at
4
5. The district court found that “[t]he sentence imposed reflect[ed] the seriousness
of the crime, afford[ed] adequate deterrents to criminal conduct, protect[ed] the
public from future crimes . . . [and afforded Broxton] the opportunity to obtain
needed educational training. . .” Id. at 5-6. The court further noted that Broxton
had a history of stealing and that his criminal history reflected the probability that
he would commit another crime. Thus, it reasoned that the sentence imposed,
outside of the advisory guideline range, “adequately addresse[d] the seriousness of
the offense, promote[d] respect for the law, and provide[d] just punishment . . . .”
Id. at 6.
II. DISCUSSION
On appeal, Broxton first argues that the district court erred because it
sentenced him outside of the guideline range and did not give him prior notice of
its intent to depart upward.2 We review for plain error where the defendant did not
raise an objection in the district court. United States v. Zinn, 321 F.3d 1084, 1087
(11th Cir. 2003) (citations omitted). We will correct plain error when “(1) an error
occurred, (2) the error was plain, and (3) the error affected substantial rights.” Id.
(citation omitted). “If the appellant is able to make a showing of all three, we then
2
Because the government has not raised the sentence appeal waiver
contained in Broxton’s plea agreement, and has briefed the merits, and the waiver
is not outcome-determinative, we address the merits of the appeal. See United
States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006).
5
may exercise discretion to notice the error if the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Ronda, 455 F.3d 1273, 1304 (11th Cir. 2006) petition for cert. filed (U.S. Jan 10,
2007) (No. 06-968) (internal quotation, citation, and alteration omitted).
Federal Rule of Criminal Procedure 32(h) states that:
Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or
in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a
departure.
We have held, however, that Rule 32(h) does not require a district court to give
notice of the fact that it is going to impose a variance, or a sentence above the
advisory guideline range, pursuant to its authority under 18 U.S.C. § 3553(a). See
United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006) (per curiam),
petition for cert. filed, (U.S. Oct 26, 2006) (No. 06-7517). We reasoned that a
defendant is aware that the § 3553(a) factors will be considered by the district court
when selecting a reasonable sentence between the statutory minimum and the
statutory maximum. Id. at 1212.
Broxton failed to object to the lack of notice at the hearing, and, therefore,
this Court reviews for plain error. See Zinn, 321 F.3d at 1087. Here, like in
Irizarry, the district court sentenced above the guideline range based not on a
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specific guideline departure provision, but rather, pursuant to its § 3553(a)
authority. See Irizarry, 458 F.3d at 1211-12. The district court cited § 3553(a) and
its specific factors, including the nature and circumstances of the offense,
Broxton’s history and characteristics, the seriousness of the offense, and the needs
to promote respect for the law, provide just punishment and adequate deterrence,
and protect the public. See 18 U.S.C. § 3553(a)(1),(2),(3),(4). In particular, the
court noted Broxton’s past history and the likelihood that he would commit another
crime. See 18 U.S.C. § 3553(a)(3),(4). Because the district court’s sentence above
the guideline range was done under its § 3553(a) authority, there was no error in its
failure to give advance notice of its intention to impose a sentence above the
guideline range.
Broxton next argues the district court erred because it failed to provide an
incremental structure in sentencing him above the guideline range, departing
upward without justification or clear guidelines. Once the district court accurately
has calculated the guideline range, “the district court may impose a more severe or
more lenient sentence” that we will review for reasonableness. United States v.
Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (citation omitted). Our
reasonableness inquiry is guided by the factors outlined in § 3553(a). United
States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (per curiam) (citation
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omitted).
Here, the record supports the conclusion that the district court did not make
an unguided departure. Rather, as it noted in its explanation of Broxton’s sentence,
the court was acting pursuant to § 3553(a), stating specifically that the sentence
was appropriate, “complie[d] with the factors that are to be considered as set forth
[in] 18 U.S.C. § 3553(a), and adequately address[ed] the totality of the
circumstances . . . [including] the nature and circumstances of the offense and
[Broxton’s] history and characteristics.” See R3-156 at 5; 18 U.S.C. § 3553(a).
Because the sentence was fashioned pursuant to § 3553(a), and the district court
used those factors as a guide, the imposition of Broxton’s sentence above the
guideline range did not amount to an unguided departure.
Broxton next argues that the district court was unreasonable for departing
from the guideline range because he only had three prior convictions, which
already had been considered in calculating the applicable guideline range. We
review the final sentence imposed for reasonableness. Crawford, 407 F.3d at 1179.
Section 3553(a) requires that the district court take into account, inter alia, the
history and characteristics of the defendant, as well as the guideline range itself.
18 U.S.C. § 3553(a)(1),(4).
The district court did not make an upward departure, but sentenced Broxton
8
pursuant to its § 3553(a) authority, which allowed the district court, in fashioning a
reasonable sentence, to consider Broxton’s history, including his criminal history,
apart from the guideline range. See Irizarry, 458 F.3d at 1211-12. The district
court did not depart, but merely sentenced under its § 3553(a) authority. See id.
Given that the district court took into account the § 3553(a) factors and explicitly
recognized Broxton’s history of engaging in theft and robbery offenses, Broxton’s
sentence of 60 months of imprisonment for causing over $200,000 in loss is
reasonable. See Crawford, 407 F.3d at 1178. His argument that the guideline
range already took into account his criminal history is unavailing, as, under §
3553(a)(1), the district court is free to consider both the existing guideline range,
and the defendant’s personal history in fashioning a reasonable sentence. See 18
U.S.C. § 3553(a)(1), (4).
Broxton next argues that the government has refused to make a U.S.S.G.
§ 5K1.1 motion for a downward departure based on substantial assistance, despite
the fact that he has agreed to cooperate. “Whether the government has breached a
plea agreement is a question of law that [we] review[] de novo.” United States v.
Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998) (per curiam) (citation omitted).
When there was no objection, however, we review for plain error. Zinn, 321 F.3d
at 1087. The government does not breach a plea agreement by failing to move for
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downward departure based on substantial assistance where the agreement provided
only that the government would consider whether the defendant’s cooperation
qualified for substantial assistance and that this determination was solely for the
government. See United States v. Forney, 9 F.3d 1492, 1499-1501 (11th Cir.
1993).
Here, the government did not breach the terms of the agreement, as
Broxton’s plea agreement provided only that the government would consider
whether Broxton’s cooperation qualified as substantial assistance, warranting a
government motion for a downward departure. The plea agreement further stated
that the discretion of whether to file a motion rested solely with the government,
and Broxton’s good faith cooperation that did not substantially assist in the
prosecution of another person would not qualify. Accordingly, the government did
not breach the plea agreement by failing to file a § 5K1.1 motion for a downward
departure because, pursuant to the plea agreement, it was not under an affirmative
obligation to do so if it determined that Broxton did not provide substantial
assistance.
Broxton lastly argues that he erroneously was held accountable for the entire
loss caused by himself and his codefendants. He asserts that the district court’s
reliance on that total amount, instead of holding him accountable for one-third of
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the total loss, was unreasonable speculation, and, therefore, his sentence must be
overturned. The government responds that the guidelines support holding a
defendant accountable for all reasonably foreseeable acts of co-conspirators in
furtherance of the crime. It contends that, because Broxton fully participated in all
phases of the burglary that produced the loss, the PSI’s calculations of loss
properly reflected the joint activity.
Broxton raised this objection in the PSI Addendum but withdrew the
objection at sentencing. The Supreme Court has explained that a “waiver is the
intentional relinquishment or abandonment of a known right.” United States v.
Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993) (quotations omitted).
Waiver differs from forfeiture, which is merely the failure to make a timely
assertion of a right. Id. Unlike forfeiture, which permits review for plain error,
waiver extinguishes appellate review because there is technically no “error” to
correct. See id. at 732-33, 113 S. Ct. at 1777. As a result, Broxton’s withdrawal of
his objection below renders plain error review of that issue on appeal inapplicable.
See, e.g., United States v. Masters, 118 F.3d 1524, 1526 (11th Cir.1997) (per
curiam). Moreover, even if we were to treat the issue as forfeited, rather than
waived, we could not say that the district court plainly erred in making the
adjustment. See U.S.S.G. 1B1.3(a)(1) (providing, in part, that the offense
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enhancements will be determined on the basis of (A) all acts aided and abetted by
the defendant, and (B), in the case of jointly undertaken criminal activity, whether
or not charged as a conspiracy, all reasonably foreseeable acts of others in
furtherance of that activity).
III. CONCLUSION
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. Accordingly, we AFFIRM.
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