[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 7, 2008
No. 07-15022 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00057-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ISAIAH ROGERS,
a.k.a. Rain,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 7, 2008)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
David Isaiah Rogers appeals his 236-month sentence for conspiracy to
distribute and possess with intent to distribute 1,000 kilograms or more of a
mixture and substance containing a detectable amount of marijuana, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii) and 846. Rogers makes several arguments
on appeal. First, Rogers contests the amount of drugs to which the district court
held him accountable, and he also asserts that the court should have “totally
excluded” the amount of cocaine from his offense level calculation, imposed as
relevant conduct, because Rogers provided the information about the conspiracy’s
cocaine involvement to law enforcement agents. Second, Rogers argues that the
court clearly erred by finding that he committed the instant offense while on
probation. Third, Rogers contests the court’s application of an obstruction of
justice enhancement and its denial of reductions for acceptance of responsibility
and safety-valve relief. Fourth, Rogers argues that his sentence is unreasonable.
For the reasons set forth more fully below, we affirm.
I.
We review for clear error the district court’s factual determination of the
drug quantity for which Rogers is accountable. United States v. Rodriguez, 398
F.3d 1291, 1296 (11th Cir. 2005). “For a factual finding to be ‘clearly erroneous,’
we, ‘after reviewing all of the evidence, must be left with a definite and firm
2
conviction that a mistake has been committed.’” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (citation omitted).
Because Rogers argues for the first time that the district court violated
§ 1B1.8, we review that issue only for plain error. “An appellate court may not
correct an error the defendant failed to raise in the district court unless there is:
(1) error, (2) that is plain, and (3) that affects substantial rights.” Rodriguez, 398
F.3d at 1298 (quotation and citation omitted). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.
Rogers’s argument that he is responsible for less than 1,000 kilograms of
marijuana is without merit in light of the fact that he admitted during his plea
hearing and in his written and signed plea agreement that he was responsible for
more than 1,000 kilograms of marijuana. In his brief on appeal, he again
acknowledges that he pled guilty to involvement with over 1,000 kilograms of
marijuana. Thus, the district court did not err by holding Rogers accountable for
an amount of marijuana that was consistent with, and, in this case, less than, the
amount to which he admitted. See United States v. Wilson, 884 F.2d 1355, 1356
(11th Cir. 1989) (stating that “[t]he findings of fact of the sentencing court may be
3
based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the
sentencing hearing”).
Even though Rogers admitted to being responsible for at least 1,000
kilograms of marijuana, the district court held him accountable for a lesser amount
of marijuana. Specifically, the court found that Rogers was accountable for a total
of 1,067.7 kilograms of marijuana, which consisted of 911 kilograms of marijuana
and 156.7 kilograms of marijuana-equivalent cocaine. Although the charge to
which Rogers pled guilty did not specify cocaine involvement, the record,
nonetheless, supports the court’s finding with respect to the amount of cocaine.
Co-conspirator John Mikhael testified that he sold Rogers 125 grams of
cocaine on 4 occasions for a total of 500 grams, and 1 ounce on 10 occasions for a
total of 283.5 grams. Although Rogers testified that John Mikhael provided him
only two ounces of cocaine, the district court’s determination to credit John
Mikhael’s testimony was within its exclusive province. See United States v.
Smith, 480 F.3d 1277, 1280-81 n.2 (11th Cir.), cert. denied, 128 S.Ct. 175 (2007)
(applying the principle that credibility determinations are the exclusive province of
the fact finder). The bottle of inositol and the jeweler’s baggies that were found in
Rogers’s residence during a search corroborated the court’s findings.
4
Significantly, the court limited its finding to those amounts of cocaine that were
directly attributable to Rogers. See U.S.S.G. § 1B1.3, comment. (n.2) (specifying
that in a case involving drugs, the conspirator’s relevant conduct includes amounts
directly attributable to the conspirator and “all reasonably foreseeable quantities of
[drugs] that were within the scope of the criminal activity that [the conspirator]
jointly undertook”). Thus, the court did not clearly err in finding that Rogers’s
“relevant conduct” for purposes of calculating his base offense level included
156.7 kilograms of marijuana based on 783.5 grams of cocaine. See U.S.S.G.
§ 1B1.3 & comment. (n.2); Rodriguez, 398 F.3d at 1296.
Finally, Rogers’s argument concerning § 1B1.8(a) is without merit for at
least two reasons. First, the government was entitled to revoke the plea agreement
based upon Rogers’s untruthful testimony about the cocaine. Because cause
existed for revocation of the agreement, the government was not required to
withhold Rogers’s statements concerning the conspiracy’s involvement with
cocaine. See U.S.S.G. § 1B1.8(a). Second, although Rogers provided information
about the conspiracy’s cocaine involvement, the record reflects that Rogers’s
“information” confirmed information that was already known by the authorities.
Thus, information that the conspirators were involved with cocaine was obtained
from independent sources. See United States v. Pham, 463 F.3d 1239, 1244 (11th
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Cir. 2006) (concluding that, “so long as the information is obtained from
independent sources or separately gleaned from codefendants, it may be used at
sentencing without violating § 1B1.8”). Accordingly, the district court did not err,
much less plainly err, by failing to sua sponte find a violation of § 1B1.8(a).
II.
When the defendant objects to his criminal history points in the district
court, we review the court’s factual findings for clear error and its application of
the Sentencing Guidelines to those facts de novo. United States v. Phillips, 413
F.3d 1288, 1292 (11th Cir. 2005).
The Sentencing Guidelines instruct that two points are added to the
defendant’s criminal history score “if the defendant committed the instant offense
while under any criminal justice sentence, including probation, parole, [or]
supervised release . . . .” U.S.S.G. § 4A1.1(d). The Commentary reiterates that
“[t]wo points are added if the defendant committed any part of the instant offense
(i.e., any relevant conduct) while under any criminal justice sentence, including
probation, parole, [or] supervised release . . . .” Id., comment. (n.4).
The district court did not clearly err by finding that Rogers committed the
instant offense while he was on probation.1 The court’s finding was consistent
1
Rogers’s six-month probationary sentence for his 2005 possession of marijuana state
conviction was imposed on January 1, 2005, and expired on July 3, 2005.
6
with Rogers’s guilty plea and his admission to the factual basis contained in the
written plea agreement,2 which Rogers also signed. Nonetheless, aside from
Rogers’s own admissions, other evidence also supports Rogers’s involvement
during that time. Specifically, the court credited John Mikhael’s testimony that he
began providing Rogers with marijuana sometime in 2004. Accordingly, because
Rogers committed the instant offense while he was on probation, the court properly
added two points to Rogers’s criminal history score.3 See U.S.S.G. § 4A1.1(d).
III.
A. Safety-Valve
We review for clear error a district court’s factual determinations to grant
safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).
The Guidelines’ “safety-valve” provision permits the district court to impose
a sentence below a statutory minimum sentence if it finds that the defendant meets
the five requirements set forth in U.S.S.G. § 5C1.2(a)(1)-(5). See also 18 U.S.C.
§ 3553(f)(1)-(5) (same). The eligibility requirement relevant to the instant case is
that “the defendant does not have more than [one] criminal history point . . . .”
2
The plea agreement’s factual basis specified that Rogers participated in the conspiracy
during the time frame alleged in the indictment. The indictment specified that the “time frame” was
between January 2004 and April 5, 2007.
3
We note that, in his brief, Rogers acknowledges that he was “involved” in the conspiracy
during the time he was on probation.
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U.S.S.G. § 5C1.2(a)(1); see also 18 U.S.C. § 3553(f)(1) (same).
The district court did not clearly err because Rogers is ineligible for safety-
valve relief in light of the fact that he has three criminal history points. See
U.S.S.G. § 5C1.2(a)(1); 18 U.S.C. § 3553(f)(1).
B. Obstruction of Justice
When a sentencing enhancement for obstruction of justice is imposed, we
review the district court’s factual findings for clear error and its application of the
Guidelines to those facts de novo. United States v. Massey, 443 F.3d 814, 818
(11th Cir. 2006).
Section 3C1.1 of the Sentencing Guidelines provides for a two-level
sentence enhancement:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense . . . .
U.S.S.G. § 3C1.1.
Application Note 4 in the Commentary provides a “non-exhaustive list of
examples of the types of conduct to which this adjustment applies.” Id., comment.
(n.4). Some examples to which the enhancement applies include, “committing,
suborning, or attempting to suborn perjury” and “providing materially false
8
information to a judge or magistrate.” Id., comment. (n.4(b), (f)). “Perjury, for
purposes of applying [§ 3C1.1], has been defined by the United States Supreme
Court as ‘false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.’” United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quoting
United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d
445 (1993)). “Material” evidence “means evidence, fact, statement, or information
that, if believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, comment. (n.6).
The district court did not clearly err in applying the obstruction of justice
enhancement. John Mikhael testified that he sold Rogers cocaine “on some 14
occasions.” Rogers initially denied any involvement with cocaine and then, at his
sentencing hearing, admitted to only two occasions in which John Mikhael
“fronted him” cocaine. Crediting John Mikhael’s testimony, as was within its
province to do so, the court found that Rogers had falsely denied his involvement
with the cocaine-part of the conspiracy. Thus, because the issue of drug quantity
was material to Rogers’s Guidelines offense level calculation, and because Rogers
provided false testimony concerning the matter, the district court did not clearly err
by applying a two-level enhancement for obstruction of justice. See U.S.S.G.
9
§ 3C1.1 & comment. (n.4(b), (f); n.6); Singh, 291 F.3d at 763.
C. Acceptance of Responsibility
We review the district court’s determination of acceptance of responsibility
for clear error. United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). A
defendant is entitled to a two-level reduction in his offense level if he “clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). A
defendant acts in a manner inconsistent with acceptance of responsibility when he
“falsely denies, or frivolously contests, relevant conduct that the court determines
to be true.” Id., comment. (n.1(a)). Although there may be extraordinary cases in
which adjustments under both §§ 3C1.1 (obstruction of justice) and 3E1.1 may
apply, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct.” Id., comment. (n.4). “The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is entitled
to great deference on review.” Id., comment. (n.5).
The district court did not clearly err in its denial of a reduction for
acceptance of responsibility because Rogers has not demonstrated that he is
entitled to the reduction. As mentioned above, Rogers obstructed justice when he
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testified falsely at his sentencing hearing about his involvement with cocaine.
Thus, Rogers acted in a manner inconsistent with acceptance of responsibility, and
no extraordinary circumstances exist that would justify applying adjustments under
both §§ 3C1.1 and 3E1.1. See U.S.S.G. 3E1.1, comment. (n.1(a); n.4).
IV.
“‘In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006)
(citation omitted). The Supreme Court recently clarified the reasonableness
standard as a review for abuse of discretion. Gall v. United States, 552 U.S. —,
128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The district court must impose a
sentence that is both procedurally and substantively reasonable. Id. 128 S.Ct. at
597. When reviewing the sentence for procedural reasonableness, we must
ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range.
Id.
A sentence may be substantively unreasonable because, inter alia, (1) it does
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“not achieve the purposes of sentencing stated in § 3553(a)”; or (2) “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.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (citations omitted).
“Generally, when sentencing within the advisory Guidelines range, the
district court is not required to give a lengthy explanation for its sentence if the
case is typical of those contemplated by the Sentencing Commission.” United
States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). However, the sentencing
judge should “set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. —, 127 S.Ct. 2456,
2468, 168 L.Ed.2d 203 (2007). Although we do not apply a presumption of
reasonableness, “ordinarily we would expect a sentence within the Guidelines
range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). The party challenging the reasonableness of a sentence “bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” Id.
The § 3553(a) factors include: (1) the nature and circumstances of the
12
offense and the history and characteristics of the defendant; (2) the need to reflect
the seriousness of the offense, to afford adequate deterrence, to promote respect for
the law, to provide just punishment for the offense, to protect the public, and to
provide the defendant with needed educational or vocational training or medical
care; (3) the kinds of sentences available; (4) the advisory guidelines range; (5)
pertinent Sentencing Commission policy statements; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1)-(7).
Rogers has not demonstrated that his sentence is unreasonable. The district
court correctly calculated Rogers’s Guidelines range and was not required to give a
lengthy explanation for its decision to impose a Guidelines sentence. See Livesay,
525 F.3d at 1090. Nonetheless, the record reflects that the court considered the
§ 3553(a) factors in determining an appropriate sentence.
Rogers’s 236-month sentence is at the mid-point of the Guidelines range and
well below the statutory maximum of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A); Talley, 431 F.3d at 788; United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005) (comparing, as one indication of reasonableness, the
actual prison term imposed against the statutory maximum). The court considered
the parties’ arguments, as well as Rogers’s personal statement, and the court had a
13
reasoned basis for exercising its own legal decisionmaking authority. See Rita,
127 S.Ct. at 2468. Accordingly, Rogers has not shown that the court abused its
discretion by imposing an unreasonable sentence.4 See Gall, 128 S.Ct. at 594;
Pugh, 515 F.3d at 1191.
V.
In light of the foregoing, Rogers’s sentence is
AFFIRMED.
4
We lack jurisdiction to review Rogers’s claim concerning the district court’s decision to
deny a downward departure because the record reflects that the court understood that it had authority
to impose the departure but chose not to. See United States v. Dudley, 463 F.3d 1221, 1228 (11th
Cir. 2006) (determining that we lacked jurisdiction to review a request for a departure when nothing
in the record indicated that the district court believed that it did not have authority to depart
downward, and, in fact, the record indicated that the court understood it could depart, but chose not
to).
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