[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-14766 ELEVENTH CIRCUIT
OCT 29, 2007
________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00039 CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JENISE ANGELLA MANGAROO,
Defendant-Appellee.
________________________
No. 06-14767
________________________
D.C. Docket No. 05-00039 CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KEARA NIKYELA JOHNSON,
Defendant-Appellee.
________________________
No. 06-14768
________________________
D.C. Docket No. 05-00039 CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ASHLIE EBONY MOTHERSILL,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(October 29, 2007)
Before BIRCH, BARKETT and COX, Circuit Judges.
COX, Circuit Judge:
Three women who were college roommates, Jenise Angella Mangaroo, Keara
Nikyela Johnson, and Ashlie Ebony Mothersill (“the Defendants”), pleaded guilty to
robbery and firearm offenses. The district court sentenced each of them to probation,
with conditions of home confinement and community service, and ordered the
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payment of restitution. The Government appeals the sentences, maintaining that one
of the offenses, using or carrying a firearm during the commission of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), requires incarceration. We
agree. We vacate the sentences and remand for resentencing. The Government also
contends that the district court erred in relying in part on non-assistance factors in its
substantial assistance downward departures under 18 U.S.C. § 3553(e). Relative to
this argument, we need go no further than to remind the district court that, on
resentencing, it must rely only on substantial assistance factors in § 3553(e)
downward departures.
I. FACTS
Mangaroo, Johnson, and Mothersill grew up together around Lakeland,
Florida, and at the times in question were college roommates in Tallahassee, Florida.
After robbery sprees by male acquaintances in Georgia and Florida in the spring and
summer of 2005, Mangaroo, Johnson, and Mothersill joined their robbery scheme in
late July and early August of 2005. They participated primarily by “casing” potential
robbery targets, reporting to the other participants each business’s internal layout,
type of customer counter, and the number and gender of employees.
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A. The July 29 Gainesville Robbery (Johnson and Mothersill)
On July 29, 2005, Mothersill drove Johnson and Gerald Jerome Raymond to
Gainesville, Florida. Johnson cased the Florida Auto and Payday Loans store,
describing its interior to Raymond. She told Raymond that it was “stupid” to rob the
store because the clerk could see their car through the store’s window. Mothersill
then moved their car to a better hidden location. Raymond robbed the clerk at
gunpoint and took the clerk’s purse and $14,490 from the cash drawer. Mothersill
knew that Raymond had a revolver, which he used in the robbery, and that Johnson
had cased the store. Mothersill and Johnson were each paid $500 for their
participation, and Mothersill drove the group back to Tallahassee.
B. The August 1 Dothan Robberies (Mangaroo, Johnson, and Mothersill)
On August 1, 2005, Mangaroo, Johnson, Raymond, and S.T. Vaughn, III drove
to Dothan, Alabama. Within fifteen minutes, the group robbed both the First
American Cash Advance store of $3,292 and the Nations Quick Cash store of $2,300.
The Nations Quick Cash robbery was particularly brutal. Johnson and
Mangaroo entered the store, looked around, and left. A few minutes later, Raymond
and Vaughn robbed the store, armed with a revolver and a pellet pistol. Mothersill
provided the pellet pistol, which resembled a semi-automatic pistol. The robbers hit
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a female victim in the face with the pistol and struck another female victim on the
head with the pistol. This blow was so hard that it broke the pistol’s handle.
Johnson and Mothersill were involved only in the July 29 and August 1
robberies.
C. The August 3 Gainesville, Lake City, and Live Oak Robberies
(Mangaroo)
On August 3, 2005, Mangaroo entered the All-N-One Check Advance store in
Gainesville, Florida, and spoke with the clerk, a female who was operating the store
by herself. A few minutes after Mangaroo left, Vaughn, Raymond, and Iren Cergio
Rainey robbed the store of $520, pushing the clerk to the ground and threatening her
with a revolver.
On the same day, this same group robbed the Advance America Cash Advance
store in Lake City, Florida, of $7,712 and the Florida Cash Advance store in Live
Oak, Florida, of $20,347.
Mangaroo was involved only in the August 1 and August 3 robberies.
II. PROCEDURAL HISTORY
In October 2005, Mangaroo, Johnson, and Mothersill were charged by
indictment with robbery and firearm offenses.
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A. Mangaroo
Mangaroo pleaded guilty to the following charges: conspiracy to commit
robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2 (Count
One), robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and
2 (Count Eight), and using or carrying a firearm during the commission of a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Nine). Counts
One and Eight carried a statutory maximum of 20 years’ incarceration. 18 U.S.C. §
1951(a). Count Nine carried a mandatory consecutive sentence of not less than seven
years’ incarceration. 18 U.S.C. § 924(c)(1)(A)(ii).
B. Johnson
Johnson pleaded guilty to the following charges: conspiracy to commit robbery
affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2 (Count One),
robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2 (Count
Six), and using or carrying a firearm during the commission of a crime of violence in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Seven). Counts One and Six
carried a statutory maximum of 20 years’ incarceration. 18 U.S.C. § 1951(a). Count
Seven carried a mandatory consecutive sentence of not less than seven years’
incarceration. 18 U.S.C. § 924(c)(1)(A)(ii).
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C. Mothersill
Mothersill pleaded guilty to the following charges: conspiracy to commit
robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2 (Count
One), robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and
2 (Count Six), and using or carrying a firearm during the commission of a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Seven). Counts
One and Six carried a statutory maximum of 20 years’ incarceration. 18 U.S.C. §
1951(a). Count Seven carried a mandatory consecutive sentence of not less than even
years’ incarceration. 18 U.S.C. § 924(c)(1)(A)(ii).
D. Sentencing
The district court found the Sentencing Guidelines range for Mangaroo and
Johnson to be 97-121 months’ incarceration and for Mothersill to be 78-97 months’
incarceration. Neither the Government nor the Defendants challenge these
calculations. The Government filed § 3553(e) substantial assistance motions for each
Defendant, allowing the district court to depart downwardly from the firearm
offense’s mandatory minimum sentence on the basis of specific factors related to the
assistance that the Defendants provided law enforcement.
The district court sentenced all three Defendants at a single hearing on August
14, 2006. The district judge stated, “I have considered the factors set out in 18 United
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States Code Section 3553(a), including the advisory guidelines and the policy
statements issued by the Sentencing Commission.” (R.2-302 at 30.) The district court
sentenced each Defendant to four years of probation, with conditions of one year of
home confinement and 500 hours of community service. The sentences also required
the payment of restitution.
The Government objected to the sentences.
III. STANDARDS OF REVIEW
The extent of a district court’s downward departure under § 3553(e) is
reviewed for an abuse of discretion. United States v. McVay, 447 F.3d 1348, 1353
(11th Cir. 2006). Sentences under an advisory guideline system are reviewed for
reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 766
(2005); United States v. Crisp, 454 F.3d 1285, 1288 (11th Cir. 2006).
We will consider objections raised for the first time on appeal under the plain
error standard. United States v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992). Under
this standard, we may exercise our discretion to correct a forfeited error where there
is (1) an error, (2) that is plain, (3) that affects substantial rights (which usually means
that the error was prejudicial), and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-
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35, 113 S. Ct. 1770, 1776-78 (1993); United States v. Prieto, 232 F.3d 816, 819 (11th
Cir. 2000).
IV. DISCUSSION
The Government presents three contentions on this appeal: (1) that the firearm
offense to which each Defendant pleaded guilty, 18 U.S.C. § 924(c)(1)(A)(ii),
specifically requires a sentence of incarceration and prohibits probation; (2) that the
district court erred by relying on factors other than the Defendants’ substantial
assistance to law enforcement in departing downwardly under § 3553(e); and (3) that
the sentences were unreasonable.
A. The Firearm Offenses
The firearm offense statute requires a mandatory minimum sentence of seven
years’ incarceration, and in this case requires that such sentence be served
consecutively to the conspiracy and robbery sentences. “[A]ny person who, during
and in relation to any crime of violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence . . . (ii) if the firearm is brandished,
be sentenced to a term of imprisonment of not less than 7 years . . . .” 18 U.S.C. §
924(c)(1)(A).
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The district court may impose a sentence below the statutory minimum
pursuant to a § 3553(e) substantial assistance motion.1 But the firearm offense statute
explicitly prohibits a sentence of probation: “[A] court shall not place on probation
any person convicted of a violation of this subsection . . . .” 18 U.S.C. §
924(c)(1)(D)(i).2
The Government voiced brief objections to the sentence of each Defendant.
The objection to Johnson’s sentence was, “Let the record reflect that the government
objects to the sentence.” (R.2-302 at 35.) The objection to Mothersill’s sentence was,
“The government objects to the extent of the Court’s departure.” (R.2-302 at 38.)
And the objection to Mangaroo’s sentence was, “The government objects that the
Court’s downward departure is extremely excessive.” (R.2-302 at 40.)
The Defendants argue that these generalized objections do not preserve the
argument the Government makes here that 18 U.S.C. § 924(c)(1)(D)(i) prohibits a
probationary sentence. They thus contend that we should review only for plain error.
The Government disagrees, arguing that it properly preserved this issue for appeal,
1
“Upon motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as a minimum sentence . . . .” 18 U.S.C. § 3553(e).
2
“A defendant who has been found guilty of an offense may be sentenced to a term of
probation unless . . . the offense is an offense for which probation has been expressly precluded.”
18 U.S.C. § 3561(a)(2). The Sentencing Guidelines recognize that probation should not be imposed
where “the offense of conviction expressly precludes probation as a sentence.” USSG § 5B1.1(b)(2).
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making a plain error analysis inappropriate. Regardless, the Government contends
that there is plain error.
We doubt that the Government’s generalized objections to the sentences
preserve this issue for appeal. Assuming arguendo that the Government did not
properly preserve for appeal its objections to the probationary sentences, we hold that
they constitute plain error. The plain language of the firearm offense statute prohibits
a probationary sentence. 18 U.S.C. § 924(c)(1)(D)(i).
The sentences of home confinement were specific conditions of probation, and
probation is an impermissible sentence for the firearm offenses. In any event, a
sentence of home confinement is not incarceration. See generally United States v.
Chavez, 204 F.3d 1305, 1315 (11th Cir. 2000) (confinement in a halfway house is not
imprisonment); Dawson v. Scott, 50 F.3d 884, 888-91 (11th Cir. 1995) (same).
Confinement in a halfway house, which Chavez and Dawson found not to be
imprisonment, is more restrictive than home confinement. In light of the plain
language of § 924(c)(1)(D)(i) and our precedent at the time of sentencing, these
probationary sentences were plain error. The errors in sentencing were prejudicial to
the Government’s interests, since they resulted in a more lenient sentence than the
statute permits. Finally, since the errors seriously affect “the fairness, integrity, or
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public reputation of judicial proceedings,” we exercise our discretion to correct them.
Olano, 507 U.S. at 732, 113 S. Ct. at 1776.
B. Substantial Assistance Departures
Because we conclude that the district court must revisit the sentences in this
case, we address the Government’s argument that the court erred by relying on non-
assistance factors in making its substantial assistance downward departures. “Upon
motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another
person who has committed an offense.” 18 U.S.C. § 3553(e). The Government made
a § 3553(e) motion for each Defendant, characterizing Mangaroo’s and Johnson’s
cooperation as “good” and Mothersill’s cooperation as “fair” and “of a lesser quality
and quantity than defendants Johnson and Mangaroo.” (R.1-245; R.1-246; R.1-247.)
The extent of such a downward departure should be based solely on a defendant’s
assistance to law enforcement. See United States v. Martin, 455 F.3d 1227, 1235-36
(11th Cir. 2006); McVay, 447 F.3d at 1354-55.
The Sentencing Guidelines enumerate the following factors that a sentencing
court should consider in a § 3553(e) downward departure: “(1) the court's evaluation
of the significance and usefulness of the defendant's assistance, taking into
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consideration the government's evaluation of the assistance rendered; (2) the
truthfulness, completeness, and reliability of any information or testimony provided
by the defendant; (3) the nature and extent of the defendant's assistance; (4) any
injury suffered, or any danger or risk of injury to the defendant or his family resulting
from his assistance; (5) the timeliness of the defendant's assistance.” USSG §
5K1.1(a).
Except for its general statement that the Defendants had cooperated with the
Government, the district court did not cite any assistance-related factors to justify its
downward departures. The district court explained its downward departures in this
way:
I recognize that there was some mitigating circumstances. First, you
have cooperated with the government and admitted your involvement;
second, you have no prior criminal history; third, you are less culpable
than some of the other defendants charged, although each of you
participated in several robberies. Miss Johnson and Miss Mothersill,
your involvement was limited to the dates of July 29th and August 1st.
Miss Mangaroo, your involvement was limited to August 1 and August
3rd. You each voluntarily ceased participation while the other
defendants continued committing robberies. Fourth, you are only 19 and
20 years old . . . I don’t know exactly why you committed these crimes
but I have no doubt that each of you have already suffered for your
criminal actions and that each of you are not likely to re-offend even if
no further punishment is imposed. Each of you have already shown great
strength by accepting responsibility for your criminal conduct. Although
you committed some very serious offenses, you will have an opportunity
to pay your debt to society and to make the best of this situation and go
on, hopefully, to lead productive lives.
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(R.2-302 at 32-33.) Reliance on non-assistance factors in a § 3553(e) downward
departure constitutes error as a matter of law. See 18 U.S.C. § 3553(e); Crisp, 454
F.3d at 1289; United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996).
On resentencing, the district court should consider only substantial assistance
factors, set forth in USSG § 5K1.1, in deciding the nature and extent of its substantial
assistance departure. See McVay, 447 F.3d at 1356.
C. Reasonableness
Because we vacate the sentences and remand for resentencing, we do not reach
the issue of the reasonableness of the sentences.
V. CONCLUSION
For the foregoing reasons, we vacate all sentences and remand to the district
court for resentencing consistent with this opinion.
SENTENCES VACATED; REMANDED FOR RESENTENCING.
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