[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17104 ELEVENTH CIRCUIT
SEPTEMBER 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-14024-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT LEE RIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 8, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Albert Lee Riggins was indicted for possessing more
than 5 grams of crack cocaine (“crack”) with intent to distribute, in violation of 21
U.S.C. § 841(a)(1)(B)(iii). Following a two-day jury trial, the jury returned a
special verdict finding that Riggins was guilty of possessing less than 5 grams of
crack with intent to distribute. The district court sentenced Riggins to 51-months’
imprisonment. Riggins appeals the procedural and substantive reasonableness of
this sentence.
I. Facts
On February 1, 2008, Detective Steve Kim of the Port St. Lucie, Florida,
Police Department gave an informant, Jason, $150 to purchase cocaine. Jason was
monitored with a listening device as he entered Riggins’ residence and emerged
approximately two and one-half minutes later with .7 grams of crack.1 Jason told
Kim that more crack was inside the residence. Based on this evidence, a search
warrant was obtained, Riggins’ home was searched, and the police recovered an
additional 5.7 grams of crack, the $150 that was originally given to Jason, and a
razor blade. Riggins was indicted for possessing with an intent to distribute more
than 5 grams of crack. The case proceeded to trial.
At trial, in addition to the foregoing evidence, the following evidence was
1
The audiotape malfunctioned at times and thus only portions of the drug transaction
were documented.
2
presented: following the search and after Riggins waived his Miranda2 rights, Kim
interviewed Riggins. Kim testified that Riggins admitted that the crack inside the
residence was his and that he had been selling crack for the past three months in
order to support his family. Drug Enforcement Administration (“DEA”) Agent
Michael Barbercheck, who de-briefed Riggins a few months after his arrest,
testified that Riggins told him at the de-briefing that he sold drugs and that he had
purchased as much as 14 grams of crack for $500 in the past from an individual
named “Pookie.” DEA Agent Nicolas Kent testified that one-tenth of a gram of
crack was the normal dose an individual would use in a single sitting, that the 6.4
grams possessed by Riggins therefore constituted approximately 64 doses of the
drug, and that such doses normally sell for $10 to $20 each.
Riggins, testifying on his own behalf, stated that Jason had asked him for
drugs about eight times and, although Riggins told Jason that he did not use crack
anymore, Jason nonetheless continued to pester him for drugs. Riggins admitted
that he sold crack to Jason on the day in question, but claimed that he only did so
because he “got tired of [Jason] aggravating [him].” Riggins contended that he
contacted Pookie, arranged to purchase $150 worth of crack, Pookie dropped off a
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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wafer of crack at Riggins’ residence,3 Riggins saturated the drugs with water to
increase their weight, and then Riggins called Jason to tell him to come get the
drugs. Riggins claimed that he broke off some of the crack, intending to keep it for
personal use, and then gave the rest to Jason in exchange for the $150. Riggins
testified that after Jason left, he noticed that Jason had left behind some of the
drugs that he purchased, but Riggins “picked up the remaining drugs that he left
. . . [, assuming that] he’ll be back.”
During the course of his testimony, Riggins repeatedly claimed that he was
not a drug dealer, but rather a drug addict. The government questioned the truth of
Riggins’ claim that he was a drug addict, noting that he had been on supervised
release in the years leading up to his arrest, but had not failed any of his random
urinalysis tests. Riggins replied that it was “easy” to “dodge” these tests because
cocaine only remains in one’s system for 72 hours. He stated that “[a] lot of times”
he postponed test dates until the drugs were out of his system.
In its closing, the defense argued that Riggins had been entrapped. Defense
counsel contended that Riggins was a drug addict who had been induced by the
government into selling drugs to Jason. The jury subsequently convicted Riggins
of possessing less than 5 grams of crack with intent to distribute.
3
Riggins testified that he did not have the money for the drugs, so Pookie advanced him
the crack, with the understanding that Riggins would pay the $150 once he sold the drugs.
4
The probation officer prepared a presentence investigation report (“PSI”).
The PSI held Riggins accountable for 6.4 grams of crack, pursuant to U.S.S.G.
§ 1B1.3, which yielded a base offense level of 24. See U.S.S.G. § 2D1.1(a)(3).
When applied to Riggins’ criminal history category of IV, this produced a
guideline range of 77 to 96 months’ imprisonment. Riggins objected that his
guideline sentence should not have been based on 6.4 grams of crack because the
jury explicitly found that Riggins intended to distribute less that 5 grams of crack,
and thus the jury must have believed that the unsold crack was for personal use.
Riggins argued that because only $150 was recovered from Riggins’ residence and
Kent testified that the street value of .1 grams of crack is at least $10, his guideline
range should have been based on 1.5 grams or less of crack. The government
replied that Riggins should be sentenced based on the entire amount recovered, 6.4
grams, and that he should also receive a two-level obstruction of justice
enhancement for offering false testimony at trial.
At sentencing, the district court stated that it did “not want to speculate on
this issue” of how much crack Riggins intended to sell, and thus found that the
base offense level should be based on 1.5 grams of crack. Riggins’ probation
officer then took the stand and testified that Riggins was drug tested 31 times, and
on 29 of those occasions he did so on the same day he was instructed to report for
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testing. On one occasion he took the test a day late and on another occasion he
took it four days late. His test results were always negative for illegal drugs.
Riggins took the stand to address the inconsistency between the probation
officer’s testimony and Riggins’ prior testimony that he rescheduled his drug tests
“[a] lot of times.” Riggins testified that he rescheduled urinalysis tests “on five or
six occasions” and that, additionally, he sometimes bought specialty products that
made him urinate more often, to thereby “flush [his] system out.”
The district court ultimately found that Riggins had committed perjury, and
thus assessed a two-level obstruction of justice enhancement. With the reduced
base offense level and obstruction of justice enhancement, Riggins’ total offense
level was 18. An offense level of 18 and a criminal history category of IV yielded
a guideline range of 41-51 months’ imprisonment. Riggins asked the court to
consider, in light of United States v. Kimbrough, 552 U.S. 85 (2007), the disparity
between sentences for powder cocaine and crack cocaine. Riggins argued that had
he sold the same quantity of powder cocaine, his guideline sentence would have
been 27-33 months, and such a sentence would have been sufficient to adequately
punish him.
Towards the conclusion of the sentencing hearing, Riggins apologized to the
court and closed by stating, “I’m not a drug dealer.” The court then engaged in a
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brief discussion with Riggins, in which the court said, “if you sell drugs to pay
your rent, you’re a drug dealer.” Riggins responded that he was not a drug dealer,
that he was behind in his rent payments, and thus the evidence indicated that he
was not a drug dealer because the fruits of an illicit business would have provided
him with the means to pay his rent.
The court ultimately sentenced Riggins to 51 months’ imprisonment, noting
that defense counsel’s argument as to “the disparity between crack cocaine and
powder cocaine in determining an appropriate sentence was a convincing one until
I heard your client tell me that he wasn’t selling drugs . . . . And that’s why he got
the maximum sentence.”
Riggins now appeals, arguing that his sentence is: (1) procedurally
unreasonable because the district court misapplied the obstruction of justice
enhancement and failed to consider the sentencing factors found in 18 U.S.C.
§ 3553(a); and (2) substantively unreasonable because a more lenient sentence
would have been appropriate to punish Riggins for his unlawful conduct.
II. Discussion
When reviewing the reasonableness of a sentence, this court conducts a 2-
step inquiry:
first, the appellate court must ensure that the district court committed
no significant procedural error, such as failing to calculate (or
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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.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quoting Gall v.
United States, 128 S. Ct. 586, 597 (2007)). If the district court did not
procedurally err, this court reviews the substantive reasonableness of the sentence
for abuse of discretion, based on the “totality of the circumstances.” United States
v. Beckles, 565 F.3d 832, 845 (11th Cir. 2009).
A. Procedural Reasonableness
Riggins contends that his sentence was procedurally unreasonable because
there was insufficient evidence from which to conclude that he proffered false
testimony and, even if he did, his false statement was not material. Thus, he argues
that the district court erroneously applied a two-point obstruction of justice
enhancement, which resulted in an improperly calculated guideline sentence. Next,
Riggins asserts that the district court did not adequately and properly address the §
3553(a) factors. Riggins argues that the district court placed an excessive amount
of emphasis on Riggins’ perjury in assessing an appropriate sentence within the
guidelines range, even after the court had already used the perjury to increase
Riggins’ criminal history category. Therefore, even though the district court
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purported to find the Kimbrough argument convincing, it did an “about face” and
did not consider Kimbrough or any other factors aside from Riggins’ perjury when
it imposed the sentence.
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).” A district court need only acknowledge that it has
considered the § 3553(a) factors; it need not explicitly discuss each of them.
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). A lengthy discussion
is not required in the typical case, so long as the district court “set[s] 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. 338, 356 (2007). “The weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.”
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation omitted).
“[A] district court’s unjustified reliance on any one Section 3553(a) factor may be
a symptom of an unreasonable sentence.” United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008). Nevertheless, this court “will defer to the district court’s
judgment regarding the weight given to the § 3553(a) factors unless the district
court has made a clear error of judgment.” United States v. Gonzalez, 550 F.3d
9
1319, 1324 (11th Cir. 2008) (quotation omitted).
A defendant may obstruct justice by committing perjury. See U.S.S.G. §
3C1.1 cmt. n.4(b). “We review for clear error the district court’s factual findings
necessary for an obstruction of justice enhancement based on perjury.” United
States v. Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999) (citation omitted). The
Supreme Court has defined perjury as “false testimony concerning a material
matter with the willful intent to provide false testimony.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). A“material” statement is one that “if believed,
would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1
cmt. n.6.
Here, the district court did not err by finding that Riggins willfully provided
false testimony. Riggins testified that he was drug addict, but had avoided testing
positive for drugs “[a] lot of times” or “five or six times” by rescheduling
urinalysis tests. Other evidence presented at trial and sentencing, however,
indicated that Riggins submitted urine samples on the same day that they were
requested 29 times, and that on only two occasions did he submit the samples late.
Moreover, officers testified that after his arrest, Riggins admitted that he had been
selling drugs for the past three months to support his family. The district court was
entitled to rely on this evidence in concluding that Riggins provided false
10
testimony.
Also, Riggins’ false testimony was material because, if believed, it
influenced or affected the issue under determination at trial. At trial, Riggins did
not deny selling some quantity of crack to Jason, but rather argued that some of the
crack found in his residence was for personal use. The jury apparently believed
this statement because it held Riggins liable for possessing less than five grams of
crack with intent to distribute, despite the fact that more than five grams of crack
was found in Riggins’ residence. If Riggins were a crack addict, this fact would
lend credence to his claim that some of the crack was for personal use.
Accordingly, testimony regarding this issue was material to his innocence or guilt.
Thus, the district court did not err by assessing an obstruction of justice
enhancement for Riggins’ perjured testimony.
Finally, the district court adequately considered the § 3553(a) factors. The
court explicitly stated that it had considered the statements of the parties, PSI, and
sentencing factors in calculating Riggins’ sentence. The court properly noted
Riggins’ argument as to crack and powder cocaine sentencing disparities, but was
not required to adopt the more-lenient powder cocaine guidelines range. The
Supreme Court in Kimbrough merely held that it would not be an abuse of
discretion for a court to consider the crack and powder cocaine sentencing
11
disparity– not that a court must adopt a lower guideline sentencing range in crack
cases. Kimbrough, 552 U.S. at 574. We thus hold that Riggins’ sentence was not
procedurally unreasonable.
B. Substantive Reasonableness
Riggins notes in passing at several points in his brief, without explanation,
that his sentence was unreasonable because a more lenient sentence would
constitute adequate punishment for his crimes and would meet the goals specified
in § 3553(a). Even though a sentence is not per se reasonable by virtue of residing
within the guidelines range, “there is a range of reasonable sentences from which
the district court may choose, and when the district court imposes a sentence within
the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
party challenging the reasonableness of the sentence bears the burden of
establishing that the sentence is unreasonable in light of both the record and the §
3553(a) factors. Id. Because Riggins has not provided any evidence to meet his
burden, we conclude that his sentence was substantively reasonable.
III. Conclusion
For the reasons set forth, we AFFIRM Riggins’ sentence of 51 months’
imprisonment.
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