United States v. Roderick Myron Stevenson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 29, 2007
No. 06-13584 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-00041-CR-1-MMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODERICK MYRON STEVENSON,
a.k.a. Mouse,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(August 29, 2007)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:
Roderick Myron Stevenson appeals his conviction and sentence for

conspiracy to distribute and to possess with intent to distribute a mixture and

substance containing cocaine base, in violation of 21 U.S.C. § 846. On appeal,

Stevenson challenges the district court’s denial of his motion to withdraw his no

contest plea and argues that his 292-month sentence is unreasonable. For the

reasons set forth more fully below, we affirm Stevenson’s conviction, but vacate

his sentence because the record is insufficient for meaningful appellate review.

Stevenson entered into a written plea agreement in which he agreed to plead

no contest to the conspiracy charge and to “cooperate fully and truthfully” with the

government. His cooperation included, but was not limited to, “providing

complete and truthful debriefings and testimony at grand jury, trial, and as

otherwise requested, involving any matter under investigation.” The agreement

also provided:

If, in the sole discretion of the United States Attorney, [Stevenson] is
deemed to have provided substantial assistance in the investigation or
prosecution of other persons who have committed offenses, if
[Stevenson] has otherwise complied with all terms of this agreement, .
. . then the United States Attorney will file a substantial assistance
motion under 18 U.S.C. § 3553(e) (allowing sentences below
applicable mandatory minimums).

After the district court accepted Stevenson’s no contest plea, but before it imposed

Stevenson’s sentence, Stevenson moved to withdraw his no contest plea.

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Stevenson’s motion was based on the government’s refusal to seek his cooperation

due to his performance on a polygraph examination, where passing a polygraph

examination as a precondition to any cooperation was not part of the plea

agreement and where the administration of this examination while he was not

taking his regular medication invalidated the results. After an evidentiary hearing,

the district court denied Stevenson’s motion.

We review the denial of Stevenson’s request to withdraw his no contest plea

for an abuse of discretion, and we will reverse the district court only if its decision

is “arbitrary or unreasonable.” See United States v. Najjar, 283 F.3d 1306, 1307

(11th Cir. 2002). “A district court abuses its discretion if it fails to apply the

proper legal standard or to follow proper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” United States v. Izquierdo,

448 F.3d 1269, 1276 (11th Cir. 2006) (citation and quotation marks omitted). After

a no contest plea is accepted, but prior to sentencing, the plea may be withdrawn if

“the defendant can show a fair and just reason for requesting the withdrawal.”

Fed.R.Crim.P. 11(d)(2)(B).

In determining whether a defendant has shown a fair and just reason,
the district court evaluates the totality of the circumstances, including
(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.

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Najjar, 283 F.3d at 1309 (citation and quotation marks omitted). There is no

absolute right to have a plea withdrawn, although motions to withdraw before the

defendant is sentenced are liberally construed. United States v. Buckles, 843 F.2d

469, 471 (11th Cir. 1988). The defendant bears the burden of proof on a motion to

withdraw his plea. Izquierdo, 448 F.3d at 1276.

Of the four above-enumerated circumstances the district court evaluated,

Stevenson does not challenge the court’s findings regarding three – the close

assistance of counsel, the conservation of judicial resources, and prejudice to the

government. Stevenson’s challenge to the knowing and voluntariness of his plea

does not cite any defects by the district court during the plea colloquy. Instead, he

relies upon his lack of knowledge at the time of the plea that the government would

rely upon a polygraph test to determine his truthfulness, and he objects to the

manner in which the results were used.

While the plea agreement did not prohibit the government from

administering a polygraph or relying on its results in evaluating whether Stevenson

could provide substantial assistance, Stevenson did not know that a polygraph

examination would be administered at the time he entered his plea. However,

based on the terms of the agreement and his admissions during the plea colloquy,

he did know that the determination of whether he rendered substantial assistance

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lay within the government’s sole discretion. While the government’s refusal to

accept his cooperation based on the polygraph results was not an outcome

Stevenson specifically anticipated at the time of his plea, the government’s

decision to exercise its discretion in this manner does not convince us that the

district court’s ruling was an abuse of discretion. The district court’s unchallenged

findings regarding the close assistance of counsel, the conservation of judicial

resources, and prejudice to the government are not clearly erroneous. The district

court’s colloquy reflects that Stevenson understood the provisions of the plea

agreement. In addition, had Stevenson raised his arguments relating to the

polygraph in an attempt to challenge the government’s failure to exercise its

discretion to file a motion for a departure based on his substantial assistance, his

failure to allege that the prosecutor refused to file such a motion based on an

unconstitutional motivation would have precluded judicial review. See United

States v. Forney, 9 F.3d 1492, 1502 (11th Cir. 1993). Accordingly, we hold that

the district court did not abuse its discretion in denying Stevenson’s motion to

withdraw his plea.

Stevenson also argues that his 292-month sentence is unreasonable, relying,

in large part, upon his medical conditions and need for medical care. The

government contends Stevenson’s failure to object to the reasonableness of his

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sentence before the district court limits review on appeal to plain error. We reject

the government’s argument because the district court failed to comply with United

States v. Jones, 899 F.2d 1097 (11th Cir.1990), overruled on other grounds by

United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc).

In Jones, we held that “after imposing a sentence, the district court must give

the parties an opportunity to object to the court's ultimate findings of fact,

conclusions of law, and the manner in which the sentence is pronounced, and must

elicit a full articulation of the grounds upon which any objection is based.” United

States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). When the district court

fails to comply with Jones, we generally vacate the sentence and remand to provide

the parties an opportunity to present their objections, unless the record on appeal is

sufficient to enable review. Id. When we reach the merits of an issue despite a

Jones error, we review that claim for preserved, rather than plain, error. See

United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir.), cert. denied, 127 S.Ct.

462 (2006) (reviewing a constitutional challenge de novo).

In this case, the district court elicited objections during the first portion of

the sentencing hearing, after it had calculated the advisory Guideline range but

before it had ordered a presentence study and report regarding Stevenson’s mental

and physical condition pursuant to 18 U.S.C. § 3552. After the court imposed the

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final 292-month sentence, additional motions were discussed and the court simply

asked whether there were any other matters or anything further, to which neither

party responded with objections. Accordingly, the district court violated Jones.

See Campbell, 473 F.3d at 1348 (“[T]his court has held that when the district court

merely asks if there is ‘anything further?’ or ‘anything else?’ and neither party

responds with objections, then the court has failed to elicit fully articulated

objections and has therefore violated Jones.”) (citations omitted).

Therefore, we do not apply plain error review. See Johnson, 451 F.3d at

1242. Instead, we review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

When evaluating the reasonableness of a sentence, we consider the factors outlined

in 18 U.S.C. § 3553(a) and the district court’s reasons for imposing the particular

sentence. United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006),

cert. dismissed, (U.S. June 28, 2007) (No. 06-7352). “When reviewing the length

of a sentence for reasonableness, we will remand for resentencing 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.” Id. at

1363.

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Even though Stevenson has not raised a Jones argument, the record in this

case is insufficient to permit meaningful appellate review of his sentence. Cf.

United States v. Holloway, 971 F.2d 675, 681 (11th Cir. 1992) (declining to

address the merits of the defendant’s challenge to the calculation of restitution

because court did not comply with Jones and there was not a developed sentencing

record to review); United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991)

(noting a “technical” violation of Jones even though the issue was not raised by the

appellant, and concluding that the record was sufficient for meaningful appellate

review). We note that the district court did not expressly indicate that it considered

the § 3553(a) factors 1 and did not provide any comment regarding Stevenson’s

sentence other than that the sentence was at the low end of the Guidelines, and that

the Guidelines were “appropriate.” In addition, with regard to Stevenson’s medical

condition and the ability of the Bureau of Prisons’ to provide treatment, the record

on appeal does not contain any explicit factual findings by the district court and

does not provide a clear indication as to how the court applied its findings in

1
Such an explicit statement does not, in and of itself, prevent us from
concluding that the district court imposed a reasonable sentence. See United States
v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (upholding a sentence as
reasonable despite the district court’s failure to explicitly articulate that it
considered the § 3553(a) factors).

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reaching a reasonable sentence. 2

In light of the foregoing, we AFFIRM Stevenson’s conviction, but

VACATE his sentence and REMAND for resentencing.

2
We note that there is a conflict in the medical opinions as to whether or not Stevenson is
presently suffering from cancer. The district court made no findings in this regard or regarding
what, if any, treatment is required.