[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 14, 2007
No. 05-13543 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00001-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN PETTIFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 14, 2007)
Before DUBINA and BLACK, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
The Honorable Jane A. Restani, Chief Judge, United States Court of International
Trade, sitting by designation.
John Pettiford appeals the 120-month sentence imposed after he pleaded
guilty to causing interstate travel in execution of a scheme to defraud, 18 U.S.C.
§ 2314. On appeal, Pettiford argues (1) his counsel was constitutionally ineffective
at sentencing, (2) the court erred by increasing his offense level for a leadership
enhancement, (3) the court erred in applying an upward departure under U.S.S.G.
§ 4A1.3, and (4) his sentence, at the statutory maximum, is unreasonable. After a
thorough review of the record, we conclude that the record is insufficiently
developed for our review of the ineffective assistance of counsel claim, and we
dismiss that claim without prejudice. We conclude, however, that the court did not
err in increasing the base offense level by two points for a leadership enhancement.
As for Pettiford’s sentencing claims, we are unable to determine whether the
district court departed from the applicable Guidelines range pursuant to a variance
based on the 18 U.S.C. § 3553(a) factors or based on an upward departure under
U.S.S.G. § 4A1.3. Accordingly, we vacate Pettiford’s sentence and remand to the
district court for resentencing.
I. STATEMENT OF FACTS
Pettiford was indicted on January 15, 2004 with co-defendant Bobby Jean
Pettiford, both charged with one count of causing interstate travel in execution of a
2
scheme to defraud, in violation of 18 U.S.C. § 2314, and three counts of interstate
transportation of stolen property, in violation of 18 U.S.C. § 2314.
On January 12, 2005, pursuant to a written plea agreement, Pettiford pleaded
guilty to one count of causing interstate travel in execution of a scheme to defraud,
and the remaining counts were dismissed. The plea agreement included the
following stipulation of facts:
The offense charged in Count One, relates to the purchase of heavy
equipment from Industrial Tractor, a company operating out of Ladson, South
Carolina. Using his brother Larry’s name, John Pettiford contacted Alan Gunter,
the used equipment manager for Industrial Tractor, and made arrangements to
purchase a backhoe. John Pettiford had also used Larry Pettiford’s credit
information to obtain approval for financing of the purchase through John Deere.
Gunter agreed to bring the equipment to Pettiford for inspection if Pettiford
agreed to buy it.
On or about June 22, 2001, Gunter traveled from South Carolina to
Jacksonville, Florida where the backhoe was located, then rode with the delivery
driver from Jacksonville to Ty Ty, Georgia. Upon arrival in Ty Ty, Gunter met
John Pettiford, who identified himself as Larry Pettiford and a woman who was
represented to be “Larry’s” wife, Betty. The woman was later identified as
Bobby Jean Pettiford. After the machine was inspected and approved by John
Pettiford, John Pettiford agreed to buy the backhoe for $31,000. Bobby Jean
Pettiford prepared a check in the amount of $9,000 on an account in the name of
“Larry Pettiford d/b/a Ace Nursery.” John Pettiford signed the name of Larry
Pettiford as payor. The check as delivered to Industrial Tractor’s Jacksonville
office where the credit account was to be set up for payment of the $22,000
balance on the purchase.
About a week later, Gunter again traveled to Albany, Georgia to sell a
bulldozer to John Pettiford. On July 2, Gunter met with John and Bobby Jean
Pettiford in Savannah to complete the paperwork on the transaction and received
another check, this time in the amount of $5,000 as the down payment for the
bulldozer. The $25,000 balance was also financed under the name Larry Pettiford
through John Deere.
By the time the checks were submitted to the bank for payment, both of
the checks bounced and no payments were made on either of the accounts. As a
3
result, Larry Pettiford was indicted in Dougherty County Superior Court. In
January, 2002 Gunter came to Dougherty County for a hearing, where he told
authorities that the person who had been charged and arrested was not the man he
dealt with. Gunter then was asked to go to Tifton, where Gunter viewed a photo
line-up and identified John Pettiford as the man with whom he had dealt.
The terms of the plea agreement also stipulated the amount of loss for the
purposes of sentencing to be greater than $70,000 but less than $120,000. The
agreement also included a waiver of appeal, but specifically reserved Pettiford’s
right to review his sentence in the case of an upward departure from the Sentencing
Guidelines pursuant to U.S.S.G. §§ 5K2.0 and/or 4A1.3 or a claim of ineffective
assistance of counsel.1
At sentencing, the district court adopted the full Presentence Investigation
Report (PSI). The PSI provided for an offense level of 15 with a resulting
Guidelines range of 41-51 months.2 The PSI also noted two factors may warrant
an upward departure: (1) a criminal history category that did not adequately
represent the scope and nature of the criminal history, and (2) a guideline
calculation, based on the relevant conduct, that did not reflect the actual
1
The government affirmatively abandoned the waiver argument on appeal. We will
therefore address all issues raised by Pettiford.
2
The PSI started with a base offense level of six, pursuant to U.S.S.G. § 2B1.1(a)(2).
This offense level was increased by eight levels based on the stipulated amount of loss in the
plea agreement. § 2B1.1(b)(1)(E). Two points were added under § 2B1.1(b)(10)(C)(i) for the
unauthorized use of his brother’s identification, and two additional points were added under
§ 3B1.1(c) for a leadership role. Pettiford then received a three-level reduction for acceptance of
responsibility under § 3E1.1(a)-(b), resulting in a total offense level of 15.
4
seriousness of the criminal conduct. The PSI suggested the district court could
depart upwards from the Guidelines range pursuant to U.S.S.G. §§ 5K2.0 or 4A1.3.
From here, it is unclear how the district court reached Pettiford’s sentence,
which was the statutory maximum of 120 months. At the sentencing hearing, it
couched its reasons in terms of the sentencing factors listed in 18 U.S.C. § 3553(a).
The court stated that “[t]he sentence as imposed is an appropriate sentence in this
case, and it’s my judgment that such a sentence complies with the factors that are
to be considered as set forth at 18 U.S.C. § 3553(a).” In particular, the district
court found Pettiford’s criminal history category substantially under-represented
the seriousness of his criminal history or the likelihood that he would commit other
crimes. It therefore concluded “that the sentence as imposed, which is outside the
advisory guideline sentencing range, adequately addresse[d] the seriousness of the
offenses, promote[d] respect for the law, and provide[d] just punishment . . . .”
The court noted Pettiford had 37 criminal history points, 24 more than what is
required for the maximum criminal history category of VI, and he had committed
28 previous incidents involving theft or fraud. In all, it appeared the district court
used its discretion under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), to impose what we have called a “variance” from the advisory Guidelines
range. See United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006)
5
(noting the difference between a variance pursuant to the district court’s discretion
and a departure under the Guidelines).
Pettiford timely appealed his sentence. A few days later, at the
Government’s request, the district court issued a supplement to the sentencing
record, setting forth its written statement of reasons for the sentence. Instead of
explaining that it had applied a variance, the court explained the sentence was the
result of an upward departure under U.S.S.G. § 4A1.3. Section 4A1.3 allows for
an upward departure if “reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes[.]”
U.S.S.G. § 4A1.3(a)(1).
II. DISCUSSION
A. Ineffective Assistance of Counsel
Pettiford argues his counsel at sentencing provided ineffective assistance of
counsel because his attorney did not timely explain the contents of the PSI or the
general law governing his sentencing. In particular, Pettiford’s counsel did not
send Pettiford a copy of the PSI or discuss its contents with Pettiford until the day
before the sentencing hearing, making it impossible to investigate and make
objections to the PSI. Pettiford also claimed that his counsel’s failure to support
6
his objection to the leadership enhancement with factual or legal authority
constituted ineffective assistance of counsel.
An ineffective assistance of counsel claim is a mixed question of law and
fact. We review any factual findings for clear error and review the application of
law to those facts de novo. Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.
2004). “Generally, claims of ineffective assistance of counsel are not considered
for the first time on direct appeal.” United States v. Tyndale, 209 F.3d 1292, 1294
(11th Cir. 2000). An exception to this rule exists where the record is sufficiently
developed for this Court to review the factual basis for the claim. Id.
To establish ineffective assistance of counsel, a defendant must show that
(1) counsel’s performance was deficient, which is defined as representation that
falls below an objective standard of reasonableness; and (2) the deficient
performance prejudiced the defense, which can be shown by “demonstrating that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” United States v. Verbitskaya,
406 F.3d 1324, 1337-38 (11th Cir. 2005), cert. denied, 126 S. Ct. 1095 (2006)
(internal quotations omitted).
Pettiford claims that a reasonable defense counsel would have discussed the
PSI with him prior to the day before sentencing to allow time to investigate any
7
questions Pettiford may have raised about the validity of his alleged criminal
history and eligibility for possible sentencing enhancements, departures or
variances. Although this may constitute deficient performance, the alleged errors
in the PSI must have some basis in fact to be prejudicial. At this point, there is
nothing beyond mere speculation that the information in the PSI on which the
district court relied was false. The record is thus insufficiently developed for us to
review this claim on direct appeal, and we dismiss this claim without prejudice.
B. Leadership Enhancement
Pettiford argues that because his wife was not a willing participant of the
fraud, he could not be a leader. Alternatively, Pettiford argues his wife had as
great a role in the fraud as he did, and he could not have been the leader because
they were essentially equal partners. We review a court’s decision to enhance a
defendant’s offense level based on a leadership role for clear error. United States
v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002).
Section 3B1.1(c) provides for a two level increase “[i]f the defendant was an
organizer, leader, manager, or supervisor in any criminal activity” other than one
involving five or more participants. U.S.S.G. § 3B1.1. “In order to demonstrate
that the defendant occupied a leadership role under this standard, . . . there must be
at least one participant in addition to the defendant.” United States v. Holland, 22
8
F.3d 1040, 1045 n.8 (11th Cir. 1994). The commentary to § 3B1.1 provides that
“[a] ‘participant’ is a person who is criminally responsible for the commission of
the offense[.]” U.S.S.G. § 3B1.1, Appl. Note 1. “[M]ere unknowing facilitators
of crime are not criminally responsible participants under § 3B1.1.” United States
v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996).
The stipulation of facts contained in the plea agreement and the PSI, as
adopted by the court, provide sufficient evidence that Bobby Jean Pettiford was a
participant under § 3B1.1 and that Pettiford had a leadership role in the offense.
The guilty plea and PSI demonstrate that Bobby Jean Pettiford prepared a check in
the name of Pettiford’s alias and was present when Pettiford introduced himself as
his brother Larry. In addition, the stipulation contains sufficient facts to establish
Pettiford had a leadership role. He contacted the dealership, made arrangements to
purchase the equipment, signed the check in his brother’s name, inspected the
equipment, and generally controlled the course of proceedings. Therefore, we
conclude that the district court did not clearly err in finding Pettiford had a
leadership position in the offense.
C. Pettiford’s Sentencing Arguments
As discussed above, it is unclear how the district court arrived at a sentence
of 120 months in this case. During the sentencing hearing, the district court
9
applied what we have termed a variance from the advisory Guidelines range based
on its discretion under Booker. Days later, however, the district court issued a
written statement of reasons indicating the sentence was based on a departure
pursuant to U.S.S.G. § 4A1.3. Our review of Pettiford’s sentence requires us to
know whether the court applied a variance under 18 U.S.C. § 3553 or an upward
departure under U.S.S.G. § 4A1.3(a)(4)(B).
III. CONCLUSION
Based on the above discussion, we VACATE Pettiford’s sentence and
REMAND for resentencing. We dismiss the ineffective assistance of counsel
claim without prejudice because it is not sufficiently developed for our review. We
further conclude the district court did not clearly err by increasing Pettiford’s
offense level for a leadership role.
VACATED AND REMANDED.
10