[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12070 JAN 17, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 88-01026-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES L. DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 17, 2008)
Before BLACK, HULL and FAY, Circuit Judges.
PER CURIAM:
Charles L. Davis voluntarily surrendered to authorities 16 years after he was
indicted for participating in a drug smuggling conspiracy. After surrendering, he
pled guilty to two conspiracy charges and fourteen substantive charges related to
narcotics smuggling.1 He was sentenced to a total of 120 months’ imprisonment.
On appeal, Davis argues he was incorrectly sentenced under the Sentencing
Reform Act of 1984 in violation of the Ex Post Facto Clause of the Constitution,
art. I, § 9, cl. 3 with respect to Counts 2 and 3 of the Indictment.2 We agree Davis
should not have been sentenced as to Counts 2 and 3 under the Sentencing Reform
Act and accordingly vacate his sentence with respect to those counts, and remand
for resentencing under the pre-Guidelines standard.3 We affirm the reasonableness
and the manner in which the remaining sentences were imposed under the pre-
Guidelines standard.
1
Davis pled guilty to conspiracy to import controlled substances, in violation of 21
U.S.C. § 963; conspiracy to distribute and to possess with intent to distribute controlled
substances, in violation of 21 U.S.C. § 846; importation of marijuana and hashish oil, in
violation of 21 U.S.C. § 952; possession with intent to distribute marijuana and hashish oil, in
violation of 21 U.S.C. § 841; and traveling in foreign commerce with the intent to carry on an
illegal activity, in violation of 18 U.S.C. §§ 2 and 1952(a)(3).
2
Davis also challenges his sentences that were imposed under the pre-Guidelines
standard. He argues they are unreasonable, and he contends the district court failed to
sufficiently articulate its reasons for the sentences it imposed. Having reviewed the briefs and
the record, we are satisfied these sentences were imposed without error.
3
We do not address Davis’s alternative arguments with respect to Counts 2 and 3 as our
decision to vacate and remand for resentencing renders them moot.
2
I. BACKGROUND
The essential facts of this case are not in dispute. The case arises out of a
large scale drug smuggling conspiracy that began in the mid-1970s and involved
the importation of controlled substances from various countries in and around the
Caribbean to be distributed inside the United States and Canada. See United States
v. Knowles, 66 F.3d 1146, 1150-52 (11th Cir. 1995), for a description of the larger
conspiracy. Charles Davis was recruited to join the conspiracy while working at a
boatyard in Ft. Lauderdale, Florida. Terrence Fitzwater, one of the leaders of the
conspiracy, recruited Davis to assist with the sailing of smuggling vessels between
the Carribean and Florida.4 Davis’s role involved intermittently working as a boat
mechanic to ensure the serviceability and seaworthiness of vessels used to smuggle
marijuana.
In November 1986, Davis agreed to captain the Suntimes. The boat was
loaded with marijuana in Jamaica in preparation for its journey to the coast of
Florida. Davis set sail in the Suntimes from Jamaica, but soon learned law
enforcement had seized a coconspirator’s boat, the Mad Dog II. Panicked, Davis
redirected the Suntimes to Cozumel, Mexico, contacted Fitzwater, and told him he
4
Some of the smuggling vessels used in the conspiracy were sailboats, outfitted with
hidden compartments, that departed from and returned to ocean-access waterfront homes along
the Southeastern and Western coasts of Florida. See Knowles, 66 F.3d at 1151-52.
3
refused to take the boat and its illicit cargo any farther. Fitzwater was forced to
hire a new crew to complete the ship’s voyage to Florida. The Suntimes and its
replacement crew were intercepted by law enforcement upon arriving in Destin,
Florida in February 1987; the shipment of marijuana was seized and the crew
arrested.5
At the time of the seizure, Davis was also in Destin, Florida, at the request of
Fitzwater, to make sure the arriving Suntimes was seaworthy for its return to Ft.
Lauderdale. In response to the intervention by law enforcement, Fitzwater
instructed everyone to “lay low.” Several weeks later, Fitzwater instructed Davis
to meet him in Miami. During their meeting, Fitzwater told Davis they needed to
disappear and said he would provide him with false identification. Fitzwater asked
Davis to use the fake identity to meet him in St. Maarten and suggested they might
sail to South America.
Davis feared Fitzwater planned to have him killed. He agreed to the meeting
in St. Maarten with no intention of attending. Instead of meeting Fitzwater in St.
Maarten, Davis fled and cut off all communications with anyone involved in the
conspiracy. He assumed the fake identity of “John Fullerton,” moved to St.
5
Around this time a third of the group’s sailboats, the Freeflight, was also targeted and
seized by law enforcement. See Knowles, 66 F.3d at 1152.
4
Thomas, where he obtained lawful employment, and later reestablished himself in
Maryland. Davis never again spoke to any of his former coconspirators.
On November 1, 1987, roughly eight months after Davis’s final meeting
with Fitzwater, the Sentencing Guidelines went into effect. See United States v.
Pippin, 903 F.2d 1478, 1480 (11th Cir. 1990). While Davis remained at large, law
enforcement prosecuted many coconspirators who had played similar and more
prominent roles than Davis in the drug smuggling operation. Three of these
coconspirators, Michael Knowles, James Squires, and Daniel Wright, were
ultimately sentenced under pre-Guidelines law. See Knowles, 66 F.3d at 1164.
Knowles was an attorney who represented conspiracy members and became
involved in the conspiracy himself. Squires and Wright were former police
officers who operated one of the smuggling vessels and participated in smuggling
activities. Id. at 1152-54. Other coconspirators were sentenced under the
Guidelines after the development of new facts.
On September 20, 2004, 16 years after the filing of the original indictment,
Davis contacted the U.S. Attorney’s Office, through counsel, and arranged to
voluntarily surrender. Davis negotiated a plea agreement in which the parties
stipulated, “there is no evidence to demonstrate the defendant’s continued
5
participation in the criminal conduct underlying the charged conspiracies following
the last overt act charged . . . on or about February 3, 1987.”
Prior to sentencing, the parties disagreed over whether Davis was to be
sentenced under the Sentencing Reform Act or the pre-Guidelines regime. The
district court ordered briefing and held an evidentiary hearing. At the hearing,
Agent Moon, a DEA investigator, testified that although Davis’s involvement in
the conspiracy ended in February 1987, the conspiracy itself extended into 1988.
The district court, citing testimony from the trial of a coconspirator who was
prosecuted after Knowles, Squires, and Wright, concluded the law of the case
dictated the conspiracy continued beyond November 1, 1987. The court went on to
conclude Davis remained part of the conspiracy after that date and, accordingly,
was subject to the Sentencing Guidelines and not eligible for parole with respect to
the conspiracy charges (Counts 2 and 3 of the Indictment). Davis was sentenced to
a total of 120 months’ imprisonment.
II. DISCUSSION
The Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837, and the
abolition of parole apply only to crimes committed after November 1, 1987, the
date the Sentencing Guidelines became effective. See Walden v. U.S. Parole
Comm’n, 114 F.3d 1136, 1138 (11th Cir. 1997); United States v. Pippin, 903 F.2d
6
1478, 1480 (11th Cir. 1990). Continuing crimes, such as conspiracy, that began
before and continued after the effective date, are subject to the act and are
sentenced under the Sentencing Guidelines. United States v. Diaz, 190 F.3d 1247,
1257 (11th Cir. 1999). Thus, Davis may only be sentenced under the Guidelines if
he took part in a crime that continued beyond November 1, 1987.
Davis contends he should not have been sentenced under the Guidelines.
Given the scope of his involvement in the conspiracy—an intermittent boat
mechanic and captain—he claims he could not have reasonably foreseen the
conspiracy would continue after the boats he worked on had been seized, the
conspirators dispersed, his participation ceased, and he permanently cut off all
communications with members of the conspiracy. In support of this contention
Davis relies on United States v. Peeples, 23 F.3d 370 (11th Cir. 1994). Davis also
notes that because he feared for his life, he faced limited options for withdrawing
from the conspiracy.
The Government does not distinguish Peeples, but instead argues Davis
should be held accountable for the continuing acts of the conspiracy because he
failed to take sufficient affirmative steps to withdraw. While the Government
concedes Davis did not actively participate in the conspiracy after the effective
date of the Sentencing Reform Act, and further conceded at oral argument that
7
Davis’s liability for conspiratorial acts ceased at some point while he was in
hiding, it contends cessation did not occur during the first eight months of Davis’s
disappearance, but rather at some later date.
Under the facts of this case, Peeples is analogous and persuasive. As a
general proposition, a conspirator is responsible for all the reasonably foreseeable
acts of his coconspirators that are done in furtherance of the conspiracy. Peeples,
23 F.3d at 373. The scope of an agreement to participate in a conspiracy must be
determined on an individual basis for each defendant, while taking into account the
context of the particular conspiracy. Id.
Peeples involved a drug smuggling conspiracy to import narcotics by
airplane to an airstrip located on the Peeples Ranch. Id. at 371. The conspiracy
spanned from 1979 to 1990. Id. In Peeples, this Circuit was called on to
determine whether the Guidelines should apply to the sentences of several
individuals convicted for participating in the smuggling conspiracy at various
levels and at various dates. Under the circumstances of that case, we evaluated the
scope of each individual’s agreement to participate in the conspiracy with
reference to actual evidence of continued involvement. See id. at 373-74
(“[A]ctual evidence of continued involvement in a specific activity is the most
reliable indicator of the time frame that each participant remained actively engaged
8
in the conspiracy.”). “A measure of the duration of criminal involvement, if not
based on actual individual agreement and activity, would impose an indefinite
standard beyond the evidence of guilty conduct.” Id. at 374.
With respect to two of the individuals in Peeples who only participated in
smuggling activities prior to the effective date of the Guidelines, we found
“[c]essation of activity and no evidence of further agreement or conduct . . . lends
no support to finding reasonable foreseeability regarding an indefinite continuation
of their involvement in the conspiracy.” Id. We also noted the conspiracy had
“sporadic and unpredictable episodes, with little foreseeability or opportunities to
express intent to withdraw.” Id. Thus, we found it was error to sentence these
individuals under the Guidelines because their agreements to participate in the
conspiracy had not been proven to extend beyond November 1, 1987. Id.
One of the individuals in Peeples, Fred Borgardt, played a strikingly similar
role to that of Davis: Borgardt conducted maintenance on one of the smuggling
planes, worked on the ground crew, and delivered marijuana by truck. Id. at 373.
Borgardt participated in the conspiracy twice, the last time being two years prior to
the effective date of the Guidelines. Id. These actions alone were insufficient to
demonstrate a continuation of Borgardt’s pattern of illegal conduct through the
effective date. Thus, we concluded he was sentenced in error. Id. at 374.
9
Here, Davis, an intermittent boat mechanic and captain, ceased participating
in the smuggling conspiracy after the boats he worked on were seized in February
1987. The Government stipulated there was no further evidence of Davis’s
continued participation. In fact, Davis played a similar role in the conspiracy as
Knowles, Squires, and Wright, all of whom were sentenced under the pre-
Guidelines standard. Moreover, Davis can hardly be said to have evidenced any
further agreement to participate in the conspiracy when, fearing for his life, he
deserted Fitzwater, fled, and permanently cut off all communications with
members of the conspiracy.
Davis’s participation in the conspiracy ceased prior to the effective date.
There is a lack of evidence sufficient to support a finding that Davis could have
reasonably foreseen an indefinite commitment to the conspiracy. Cf. Peeples, 23
F.3d at 374. Under the facts of this case, holding Davis responsible for acts of the
conspiracy that happened over eight months after he ceased all participation, is
tantamount to holding him to an “indefinite standard beyond the evidence of guilty
conduct.” Id. We conclude Davis should not have been sentenced under the
Sentencing Reform Act.
10
III. CONCLUSION
We vacate Davis’s sentence as to Counts 2 and 3 and remand for
resentencing in accordance with the pre-Guidelines law. We affirm the
reasonableness and the manner in which the remaining sentences were imposed.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
11