[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-16128 ELEVENTH CIRCUIT
April 29, 2008
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-14032-CR-KMM
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JAMES JOSEPH BROWN
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 29, 2008)
Before TJOFLAT, FAY and SILER,* Circuit Judges.
TJOFLAT, Circuit Judge:
Pursuant to a plea agreement, James Joseph Brown pled guilty to using a
facility and means of interstate commerce to entice a minor to engage in sexual
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
activity, in violation of 18 U.S.C. § 2422(b). The district court sentenced him to
prison for a term of 235 months. He now appeals his conviction and sentence.
I.
A.
On April 30, 2004, at around 7:30 a.m., Brown, who was logged onto an
America Online chat room called “Fam Taboo,” initiated a conversation via
Instant Messenger with an undercover St. Lucie County, Florida, Sheriff’s Office
detective posing as a member of the chat room.1 The St. Lucie County Sheriff’s
Office was participating in a multi-agency task force (the “Task Force”) involving
federal, state, and local law enforcement agencies, that investigated Internet
crimes against children. Among other things, the Task Force was monitoring
Internet chat rooms, including Fam Taboo. They suspected that members of the
Fam Taboo chat room were involved with incest and the trading of child
pornography.
During his initial conversation with the detective, Brown identified himself
as “dad of 13 and 17 daughters” and asked the detective if he had “family fun.”
1
The facts set out above are taken from the Presentence Investigation Report (“PSI”)
prepared by the district court’s probation office and adopted by the court. Brown made no
objection to the PSI’s narration of what led to Brown’s conviction; thus, Brown is deemed to
have admitted these facts. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
2
Brown identified his interests as “work, sex, camping, sex, nudist, sex, harleys,
sex, lol and my daughters” and asked the detective how long he had been
“playing” with his “daughter,” whom the detective had described as being fourteen
years old and mentally ill. Brown expressed an interest in having sex with her and
inquired: “would you trade her? . . . I mean if I brought my girl [for you to have
sexual intercourse with] . . . would you swap yours I’m being very real.”2 Brown
and the detective discussed meeting later that day, at which point Brown explained
that he would not be able to bring his daughter to the meeting, as she was in
school, but offered the detective $100 to have sexual intercourse with his
daughter. The detective agreed to this proposal, and Brown ended the online
conversation by giving him his telephone number and asking him to call.
The detective called within an hour, and Brown again expressed an interest
in sexual intercourse with the detective’s daughter. They arranged a meeting at a
Holiday Inn in Fort Pierce. Brown lived in Pompano Beach, 100 miles away, so it
would take him about two hours to get there. He told the detective that he should
arrive at the Holiday Inn shortly before 11:00 a.m. Brown provided a physical
2
The PSI states that Brown has two daughters, although it does not indicate their ages.
Brown did not specify, nor does the record reflect, which daughter he was referring to in his
online conversation with the detective. There is no evidence in the record to indicate that Brown
was ever arrested or charged with sexually abusing his daughters.
3
description of himself, stated that his name was “Gator” and that he would be
driving a red Dodge truck.3 The detective asked that Brown bring gifts for his
daughter and a condom.
At approximately 10:50 a.m., Brown, driving a red Dodge truck, arrived at
the Holiday Inn. He brought a video camera, which, he explained to the detective,
he intended to use to videotape the sexual encounter with the detective’s daughter,
and a stuffed animal and large lollipop as presents for her. At that point, Brown
was arrested, and a search of his person revealed that he was carrying a condom.
During the week following his arrest, Brown was interviewed by several
Task Force agents. He told them that, prior to leaving for Fort Pierce and the
Holiday Inn, he told his wife and a co-worker4 that he was going there to see
someone he had met in a chat room, who had offered to let him have sex with his
fourteen-year-old daughter, and that if a girl happened to be in the hotel room
where they would be meeting, he would call the police. The agents subsequently
learned that Brown had not said these things to his wife and co-worker before
driving to Fort Pierce on April 30.
3
Brown’s wife was interviewed by St. Lucie County police officers after Brown’s arrest.
She stated that her husband’s AOL “screen name” was “Gatorbrown01.”
4
Brown was the manager of two-person sprinkler repair company, Gator’s Sprinkler
Service.
4
B.
Brown was indicted by a Southern District of Florida5 grand jury on May
27, 2004, on one count of violating 18 U.S.C. § 2422(b).6 On August 3, 2004,
Brown appeared before the district court with his retained attorney, Jason Kreiss,
and tendered a plea of guilty. During his colloquy with the court, Brown stated
that he was taking three medications for schizophrenia. The court asked him if the
medication had any effect on his ability to understand the proceedings; he said that
it did not and that he was ready to plead guilty. The court directed the same
question to Kreiss. He stated that the medication appeared to be affecting Brown
adversely as Brown’s “affect” at that moment was markedly different from what
he had observed in meeting with him earlier. The court, concerned with Brown’s
competency to plead guilty, ordered that Brown be examined. Brown received a
5
Although the record is not clear on this point, we presume that Brown’s case was
transferred from the St. Lucie County Sheriff’s Office to a federal agency that was a participant
in the Task Force.
6
The version of 18 U.S.C. § 2422(b) in effect at the time of Brown’s offense states:
(b) Whoever, using the mail or any facility or means of interstate or foreign
commerce, or within the special maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or coerces any individual who has
not attained the age of 18 years, to engage in prostitution or any sexual activity for
which any person can be charged with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned not less than 5 years and not more
than 30 years.
5
psychiatric evaluation at the Federal Correctional Institution in Waseca,
Minnesota, and was found to be competent.7
On April 27, 2005, Brown, having entered into a plea agreement with the
Government, tendered a plea of guilty to the § 2422(b) offense. The plea
agreement stated that “the defendant and the [United States Attorney’s Office]
stipulate to the following applications of the sentencing guidelines in computing
[an] advisory guideline range: Base Offense Level 21; Use of Computer & Internet
Access +2; Acceptance of Responsibility -3.” The Government reserved the right
to seek an additional two-point upward adjustment for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1, based on Brown’s attempt to get his wife and co-
worker to tell the authorities that he intended to call the police once he arrived at
the Holiday Inn. The agreement contained no stipulation regarding Brown’s
criminal history category; that would be determined by the court’s probation
office.
The plea agreement also provided that “any recommendation that
government makes to court as to sentencing . . . is not binding on the court.” The
7
The court ordered that Brown be examined for his sanity at the time of the offense in
addition to his competency to plead guilty or stand trial. Brown does not challenge his
competency to enter the guilty plea at issue; nor does he contend that he was insane at the time of
the offense.
6
court could “depart from the advisory sentencing guideline range . . . and . . .
impose any sentence within and up to the statutory maximum authorized by law
for [his] offense.”8
During the April 27, 2005, plea hearing, the court first established that
Brown was currently taking psychiatric medication and then asked him whether
the medication “affect[ed] in any way [his] ability to understand the proceedings.”
Brown stated that it did not. The court also asked Brown’s counsel if he “was
aware of any reason why his medication might affect his ability to enter a knowing
and voluntary plea.” Kreiss responded in the negative and added that Brown was
“a different person today, as the court could probably see also, if you remember
the way he presented last time we were here. I have no reason to believe that there
are any competency issues at this time.”
The court then asked Brown whether he “had received a copy of the
[i]ndictment pending against [him] in this case and [had he] fully discussed those
charges and the case in general with [his] attorney?” Brown replied that he had.
Next, based on Brown’s response to a series of questions, the court confirmed,
8
The plea agreement contained a provision whereby Brown waived the right to appeal his
sentence unless it was above the statutory maximum or the result of an upwards departure from
the Guidelines range established by the court. In entertaining Brown’s guilty plea, the court
failed to address this provision and therefore did not determine whether Brown had agreed to it
voluntarily. As the Government properly concedes, the provision is therefore invalid and
unenforceable. See United States v. Bushert, 997 F.2d 1343, 1351-52 (11th Cir. 1993).
7
among other things, that Brown (1) understood the rights attendant upon a jury
trial and that he was waiving such rights; (2) understood the terms of the plea
agreement and that no one had made any “other or different promise[s] or
assurance[s] to him” other than those recited in the plea agreement; (3) that Brown
could receive a prison sentence of up to thirty years; (4) that the Sentencing
Guidelines were advisory; (5) and that the terms of the plea agreement are “merely
recommendations to the court” and that the court could “impose a sentence that is
more severe than you may anticipate.”
The court asked the prosecutor, Assistant United States Attorney Jim
McAdams, to recite the “government’s evidence if the case were to go to trial.”9
McAdams did so, reciting substantially what we have set out in subpart A., supra,
and Brown stated that his recitation was correct. The court then informed Brown
of the elements of his offense, as stated in the indictment, and asked him how he
was pleading.10 Brown replied: “Guilty, your honor.” The court accepted Brown’s
plea.
9
On October 20, 2004, McAdams replaced Deborah Stuart, the Assistant United States
Attorney who had been prosecuting Brown’s case since its inception.
10
The court asked: “[H]ow do you plea to the Indictment which charges you with
attempting to knowingly persuade and induce an individual who had not attained the age of 18
years of age to engage in sexual activity under such circumstances as would constitute a criminal
offense: guilty or not guilty?”
8
C.
On August 29, 2005, the court’s probation office issued a Presentence
Investigation Report (PSI). The PSI found Brown’s base offense level to be 21
pursuant to U.S.S.G. § 2A3.2(a)(2), enhanced it by two levels under U.S.S.G. §
2A3.2(b)(3) because Brown used a computer to facilitate his travel to engage in
prohibited sexual conduct, and two further levels under U.S.S.G.§ 3C1.1 for
obstruction of justice. Then, crediting Brown with acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(a)(b), the PSI reduced Brown’s offense level by
three levels, arriving at a total offense level of 22.
The PSI revealed that Brown had been convicted of nineteen prior offenses
as an adult, and several more as a juvenile. The probation office was able to
consider only two of these offenses in calculating Brown’s criminal history score,
however, because the other offenses had occurred over fifteen years prior to the
instant conviction. U.S.S.G. § 4A1.2(e)(3). Using these two offenses, the
probation office set Brown’s criminal history score at six, which yielded a criminal
history category of III. Given a total offense level of 22 and a criminal history
category of III, Brown’s sentence range came to 51-63 months.
On July 28, 2005, we decided United States v. Searcy, 418 F.3d 1193, 1198
(11th Cir. 2005), holding that a violation of 18 U.S.C. § 2422(b) should be
9
considered a “crime of violence” under U.S.S.G. § 4B1.1. Section 4B1.1
mandates that a defendant convicted of a “crime of violence,” who had been
convicted of two prior crimes of violence (or “controlled substance offenses”),
should be considered a “career offender” and receive enhancements of both his
offense level and his criminal category.
Following Searcy’s publication, the probation office issued an addendum to
the PSI recommending that Brown be sentenced as a career offender. The
addendum identified three of Brown’s prior offenses as predicate “crimes of
violence”: (1) a December 21, 1979, conviction on one count of aggravated
burglary in Strongsville, Ohio, in violation of Ohio Rev. Code Ann. § 2911.11;11
(2) a May 29, 1980, conviction on three counts of aggravated burglary in Parma,
11
The version of Ohio Rev. Code Ann. § 2911.11 in effect as of the time of the offenses
indicated in the above text read as follows:
A) No person, by force, stealth, or deception, shall trespass in an occupied
structure, as defined in section 2909.01 of the Revised Code, or in a separately
secured or separately occupied portion thereof, with purpose to commit therein
any theft offense, as defined in section 2913.01 of the Revised Code, or any
felony, when any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another;
(2) The offender has a deadly weapon or dangerous ordnance, as defined in
section 2923.11 of the Revised Code, on or about his person or under his control;
(3) The occupied structure involved is the permanent or temporary habitation of
any person, in which at the time any person is present or likely to be present.
(B) Whoever violates this section is guilty of aggravated burglary, an aggravated
felony of the first degree.
10
Ohio; (3) a February 4, 1994, conviction on one count12 of aggravated burglary in
Cleveland, Ohio.13
As evidence for the December 21, 1979 conviction, the probation office
downloaded and printed out a docket sheet from the Cuyahoga County, Ohio,14
Court of Common Pleas website. The docket sheet stated that Brown had pled
guilty to “Count I of the indictment” which had charged a “felony of the first
degree.” As evidence supporting the latter two convictions, the probation office
12
The PSI, and supporting documentation, indicated that Brown had been convicted on
January 31, 1990 for six counts of aggravated burglary in Cleveland, Ohio. These convictions
were later reversed on appeal, after which Brown pled guilty to one count of aggravated burglary
on February 5, 1994.
13
Prior convictions may only be considered in determining a defendant’s criminal history
score if the defendant was convicted or incarcerated for the offense within fifteen years of the
instant offense, U.S.S.G. § 4A1.2(e)(3); the same rule governs whether a conviction can be
considered as a predicate offense for the career offender enhancement. U.S.S.G § 4B.1.2,
comment (n.3). Pursuant to this rule, of the three prior offenses discussed in the above text, the
initial PSI counted only the February 4, 1994, conviction in calculating Brown’s criminal history
score. The addendum to the PSI stated, however, that “according to the State of Ohio,
Department of Rehabilitation and Correction,” Brown was incarcerated for the May 29, 1980,
offense until December 1999, making that offense eligible to be considered as predicate for the
imposition of the career offender enhancement. The addendum did not make any similar
correction regarding the December 21, 1979, conviction.
Since Brown was supposedly incarcerated for the May 29, 1980, offense until December
1999, but was then convicted of additional aggravated burglaries on January 31, 1990, see note
12, supra, this leads to the question of whether Brown was actually incarcerated for the May 29,
1980 aggravated burglary conviction within the required fifteen-year period prior to the instant
offense. Nonetheless, Kreiss did not present this question to the district court, nor did the
Federal Public Defender, who represents Brown in this appeal, raise it in Brown’s brief to this
Court. We therefore do not address the question of whether the district court erred in finding that
the May 29, 1980, conviction constituted a § 4B1.2 predicate offense.
14
Strongsville, Parma, and Cleveland are all located in Cuyahoga County, Ohio.
11
accumulated certified copies of Brown’s indictments for the May 29 and February
4 offenses and downloaded docket sheets from the Cuyahoga County, Ohio, Court
of Common Pleas website. The indictments showed that Brown had been charged
with aggravated burglary, in violation of Ohio Rev. Code Ann. § 2911.11, for
entering residences. The docket sheet reflecting the May 29, 1980, conviction
stated that a “James J Brown” had pled guilty to three counts of “Agg Burglary . . .
in viol of T RC 2911.11 as 1st Degree Felonies.” The docket sheet reflecting the
February 4, 1994, conviction, also referring to a “James J Brown” stated:
[S]aid defendant retracts his / her former plea of not guilty heretofore
entered, and for plea to said indictment says he/she is guilty of
aggravated burglary, R.C. 2911.11 (AGG F-1) as amended in count
one of the indictment, which plea/pleas on the recommendation of the
prosecuting attorney is/are accepted by the court.
Once the PSI classified Brown as a career offender, it set his total offense
level at 31 and his criminal history category at VI. This resulted in a Guidelines
sentence range calling for a prison term of 188 to 235 months.
D.
Brown’s sentencing hearing was scheduled for October 17, 2005. That day,
prior to the hearing, Kreiss filed an objection to two aspects of the PSI. He argued
that the retroactive application of Searcy violated the Ex Post Facto Clause, and,
alternatively, that the evidentiary bases for the three Ohio aggravated burglary
12
convictions being used as predicate offenses for the career offender enhancement
were insufficient. Specifically, he claimed that the probation office’s use of the
indictments and docket sheets as evidence of Brown’s prior convictions for
aggravated burglary was barred by the Supreme Court’s decision in Shepard v.
United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). He did not,
however, contend that aggravated burglary under Ohio Rev. Code § 2911.11 was
not a “crime of violence”; rather his argument focused solely on the
impermissibility of the evidence used by the probation office to determine that
Brown had in fact been convicted of aggravated burglary.
The district court considered these objections after convening the
sentencing hearing. The court first addressed and rejected Kreiss’s Ex Post Facto
argument, explaining that “ex post facto goes to statutory maximum possible
penalties.” The court continued, stating:
I mean you are trying to inject that into the sentencing guidelines.
And we’ll get to it from the standpoint that I think the first thing we
need to do in terms of process is to go through the calculation of the
guidelines and the appropriate provisions, make sure that we’ve hit
them, and then go ahead and disagree with that calculation and then
we’ll just put them aside and accept the guidelines as advisory,
including the career offender provision, and we will sentence him
outside the guidelines to the same sentence and say it’s reasonable.
I mean is that what you want to do? We’ll give you two bites at the
apple. We will give you a guideline sentence and then we’ll give you
13
a sentence outside the guidelines that is reasonable because its [sic]
consistent with the guidelines that you are objecting to. I mean,
actually we could give you more than that. We could give you up to
the statutory maximum and consider that reasonable when you look at
his record.
Kreiss replied, “And I understand that.”
The court further stated:
So I mean, I think the first thing to do then is to go through how the
guidelines were calculated, make sure that we’ve calculated them
correctly, if you think there is any guideline provision that has not
been calculated correctly, then we can identify that and you can
preserve that for appellate review, and we will go through the whole
process and then when we’ve finished with that then we’ll take up
guideline sentence outside–we will take up a sentence outside the
guideline, and make a determination of what is a reasonable sentence
outside the guidelines, and that way if for some reason we’ve
miscalculated the guidelines then we can, the appellate court can
either correct us on that, or they can consider in the alternative the
sentence that is imposed outside the guidelines and determine
whether it’s reasonable.
The court then considered the evidence the probation office had obtained in
support of the Ohio convictions and Kreiss’s objections to the sufficiency of that
evidence. The court first reviewed the docket sheet submitted as evidence of the
1979 conviction and asked the prosecutor: “Mr. McAdams what [the sheet states]
is a felony in the first degree. Does this require that it be a crime of violence?
And do we know what the felony was?” McAdams explained that the probation
office had been unable to obtain an official judgment for the conviction, but had
14
contacted a probation officer in Ohio who said that the “felony” was an aggravated
burglary. The court declined to consider the 1979 conviction as a predicate
offense, holding that the docket sheet and hearsay testimony were insufficient to
show by a preponderance of the evidence that Brown had been convicted of
aggravated burglary.
The court then reviewed the indictment and docket sheet printout indicating
that Brown had pled guilty to an aggravated burglary on May 29, 1980. Kreiss
argued that “[t]his is exactly the scenario Shepard speaks of. We have a charging
document which is completely generic talking about trespassing on an occupied
dwelling and a computer printout. This Court, in order to determine that this is a
crime of violence, needs to know what he actually pled to, what was in the plea
colloquy, what facts were admitted or denied.”
The court replied: “[The docket sheet] says he pled guilty to aggravated
burglary. It says it right in here. That’s what he was charged with too. What do
you think – he was charged with jaywalking?” The court concluded that
“aggravated burglary is a crime of violence . . . as a matter of law” and that the
evidence presented by the Government was sufficient to show that Brown had
been convicted of aggravated burglary on May 29, 1980. Relying on this
reasoning, the court also found, over Kreiss’s objection, sufficient evidence to
15
show that Brown had been convicted of aggravated burglary on February 4, 1994.
The court also asked the prosecutor to obtain additional evidence in support of the
1979 conviction, “in case this comes back.” Having sustained none of Kreiss’s
objections, with the exception of the 1979 conviction, the court held that Brown
was subject to a Guidelines sentence of 188 to 235 months.
The court then stated it would consider the sentencing factors listed in 18
U.S.C. § 3553 and asked Kreiss whether “he had anything with respect to a
sentence that would be a reasonable sentence using the guidelines as simply
advisory.” Kreiss acknowledged Brown’s “extensive criminal history,” but
characterized Brown as a product of his “horrific, abominable childhood.” He
noted that Brown had been heavily abused by his father, who had been
investigated for murdering Brown’s mother and two stepmothers. He also stated
that Brown’s prior offenses “all occur[red] within a small amount of time where
many of these sentences were consolidated for sentencing purposes.”
Kreiss then presented testimony from Cathleen Nunez, Brown’s sister. She
testified that their childhood consisted of both physical and sexual abuse from a
very young age. She stated that their father “beat [Brown] senseless as a child,”
one time cracking open his head, and “locked him in the attic for days” without
food. As teenagers, they were kicked out of the house, and Nunez testified that
16
she survived on account of Brown’s burglaries, which allowed them “to pay for
the apartment and get groceries.”
After Nunez’s testimony concluded, the court presented the rationale for the
sentence it contemplated imposing. It reviewed the PSI, stating “I thought I heard
defense counsel say that he was, his offense occurred in a short period of time, but
according to the PSI . . . I count the first of approximately 38 arrests that we know
of start[ing] at age 15 when he was charged with burglary.” The court then recited
into the record all of the prior arrests that were listed in the PSI. The court next
stated that it should consider the factors listed under § 3553 and recited the factors
listed in this statute. It then asked for any allocution by Brown.
Brown, exercising his right of allocution, told the court that his prior
burglaries began “as a matter of survival,” but “became . . . a habit.” He explained
that he “never hurt a person in [his] life” and “never went into a home when
anybody was home or [it] was occupied.” He emphasized his struggle with mental
illness and how much he had turned his life around since being released from
prison in 1999 by getting married and starting his own sprinkler repair company,
until “this bad judgment happened.”15
15
The PSI states that Brown was imprisoned in Ohio, based on his January 31, 1990,
conviction, see note 12, supra, from June 1, 1990, until December 2, 1999.
17
Upon the conclusion of Brown’s testimony, the court sentenced Brown to
235 months imprisonment, followed by five years of supervised release. The court
found that “the sentence is consistent with the guidelines calculation as well as a
finding that it was a reasonable sentence considering the guidelines as advisory.”
II.
Brown argues that the district court failed to comply with the requirements
of Federal Rule of Criminal Procedure 11 in entertaining and accepting his plea of
guilty and that his plea was therefore involuntary, in violation of the Fifth
Amendment. Brown failed to present this argument to the district court;
consequently, we review the court’s acceptance of his guilty plea for plain error.
United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005) (per curiam).
Under this standard, Brown must establish “(1) error (2) that is plain and (3) that
affects [his] substantial rights.” United States v. Monroe, 353 F.3d 1346, 1349
(11th Cir. 2003) (quotation omitted). In addition, to obtain the vacation of his
guilty plea, Brown must demonstrate “a reasonable probability that but for the
error, he would not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157 (2004). In essence, he
must convince us that “the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Monroe, 353 F.3d at 1349 (quotation and
18
citation omitted).
A.
The requirements of Rule 11 serve to ensure that the district court addresses
three core concerns in entertaining a plea of guilty: (1) that the plea is free from
coercion; (2) that the defendant understands the nature of the charges presented;
and (3) that the defendant knows and understands the consequences of pleading
guilty. United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996). The court has
wide latitude in satisfying these core concerns. “[T]here is no one mechanical way
or precise juncture that a district court is required to inform the defendant of the
nature of the charges in the Rule 11 colloquy.” United States v. Wiggins, 131
F.3d 1440, 1443 (11th Cir. 1997). The extent of the court’s explanation of the
elements of the charged offense depends largely on the complexity of the
elements, see United States v. Byrd, 804 F.2d 1204, 1205-06 (11th Cir. 1986), and
the defendant’s “sophistication and intelligence.” United States v. Bell, 776 F.2d
965, 968-69 (11th Cir. 1985) (quotation and citation omitted).
Brown states in his brief that at the time he pled guilty, in April 2005, he
was taking two psychiatric drugs, medication that could have caused him to suffer
from “drowsiness, fatigue, and difficulties in concentration.” Knowing this, the
court should have read the indictment to him, “explain[ed] the elements of the
19
offense or any of the technical terms like intent which were necessary for a
conviction,”16 and inquired as to whether he understood the elements or had any
questions as to their meaning. But the court failed to do this, he submits, and, in
the process, failed to ensure that he understood the nature of the charges against
him, a core concern of Rule 11.17
Brown’s representation as to how the psychiatric drugs he was taking might
have been affecting him at the time he tendered his guilty plea has no bearing on
our plain error analysis. The psychiatrists who had evaluated Brown had found
16
Brown’s brief does not provide any further detail as to the specific elements of the §
2422(b) offense the court should have explained more fully. As indicated in note 10, supra, and
accompanying text, the court, in advising Brown of the offense with which he had been charged,
read the charge as it appeared in the indictment.
17
The text of Rule 11 reads, in relevant part, as follows:
(1) Advising and Questioning the Defendant. Before the court accepts a plea of
guilty or nolo contendere, the defendant may be placed under oath, and the court
must address the defendant personally in open court. During this address, the
court must inform the defendant of, and determine that the defendant understands,
the following: . . . (G) the nature of each charge to which the defendant is
pleading. Fed. R. Crim. P. 11(b)(1)(G) (2002).
Brown does not contend that the district failed to follow the text of Rule 11; rather, he contends
that the court failed to satisfy one of the Rule’s core concerns. The district court’s satisfaction of
the core concerns, rather than its literal compliance with the dictates of the Rule, is the focus of
our review. See United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003) (“This Court has
upheld plea colloquies that fail to address an item expressly required by Rule 11 so long as the
overall plea colloquy adequately addresses these three core concerns.”).
20
him competent to proceed – either on a plea of guilty or with a trial. When the
Rule 11 plea hearing began, the court questioned both Brown and Kreiss as to
whether the psychiatric “medication [would] affect in any way [Brown’s] ability to
understand the proceedings.” Both stated that it would not. The court therefore
proceeded to entertain Brown’s plea.
The court’s failure to explain the elements of Brown’s offense – as it would
in charging a jury – or question Brown as to his understanding of those elements,
while not ideal, did not amount to plain error. Brown was certainly aware of the
elements of his offense. The court asked him if he had discussed the indictment
and the plea agreement, both of which listed the elements of the § 2422(b) offense,
with his attorney and he affirmed that he had done so. In addition, the court
recited the elements before accepting his plea of guilty. See Wiggins, 131 F.3d at
1442 (holding no Rule 11 violation for failure to explain elements of offense and
finding it material that “the district court at least incorporated the substance of
those elements in a statement later on in the plea colloquy”). Brown was also
aware of what the Government could establish were the case to proceed to trial;
the prosecutor provided a full statement of the facts the evidence would establish.
The elements of the offense were not complex or difficult to understand. With the
exception of “means of interstate commerce,” the elements had the same meaning
21
in legal usage as in ordinary usage. See, e.g., Oxford English Dictionary (2d ed.
1989) (defining knowingly as “intelligently, consciously, intentionally, etc”);
Black’s Law Dictionary (8th ed. 2004) (defining knowingly as “[d]eliberate;
conscious, a knowing attempt to commit fraud”). The phrase “means of interstate
commerce” was explained by the indictment’s statement that America Online was
the “means” Brown used. Brown claimed to have a college degree and had
extensive experience with the criminal justice system. See Bell, 776 F.2d at 969
(holding that two college credits and involvement in real estate business were
sufficient to classify defendant as “sophisticated and intelligent”).
Given these circumstances, it is difficult for us to imagine how Brown
could have failed to understand the elements of his offense, even absent a detailed
explanation from the district court. Id. at 971 (“This case is unlike McCarthy [v.
United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969)], where the
Supreme Court [holding that Rule 11 had been violated] was able to point out
several specific, ‘conceivable’ ways in which the defendant may have
misunderstood the elements of the crime with which he was charged.”); see United
States v. Caballero, 159 Fed. Appx. 902, 907 (11th Cir. 2005) (unpublished)
(holding, on similar facts, that the district court’s failure to explain the elements of
Caballero’s offense did not constitute plain error).
22
Nor has Brown convinced us that even if the district court had explained the
elements of the offense, he would have rejected the plea, as Dominguez Benitez
requires as a condition to relief. In United States v. Steele, we listed three factors
that we would consider in determining the “relative significance of the Rule 11
error on the defendant’s plea decision: later protests by the defendant (for
example, at sentencing), the overall strength of the government’s case, and
possible defenses that appear from the record.” 148 Fed. Appx. 823, 826-27 (11th
Cir. 2005) (unpublished). Brown, focusing on the third factor, as he must, given
the absence of a later protest and the overwhelming strength of the Government’s
case, argues that this case
was a sting operation which did not actually involve any actual minor
at any stage of the offense. Such scenarios raise the possibility of
entrapment defenses or defenses relating to a lack of criminal intent.
There is nothing in the record to show that Brown understood he was
waiving such defenses, and the court’s deficient colloquy regarding
the natures of the charges did not cure this problem.
We understand Brown to mean that had the court more fully explained the
elements of his offense, he would have perceived the existence of these defenses
and elected to stand trial.
In considering Brown’s argument, we fail to see how the district court’s
explanation could have made a difference – Brown or, more realistically speaking,
23
Kreiss, assuming his competence, would have recognized the possibility of raising
these defenses in reviewing the circumstances giving rise to Brown’s arrest,
independent of what the district court said to Brown during the plea colloquy.
Moreover, given the significant weaknesses in these defenses, even if Brown or
Kreiss were first alerted to the existence of these defenses at the sentencing
hearing, we are not convinced that a reasonable defendant would have forgone this
plea agreement to risk these defenses at trial. See United States v. Murrell, 368
F.3d 1283, 1287-88 (11th Cir. 2004) (rejecting Murrell’s argument that he lacked
the specific intent to violate § 2422(b) when no actual minor was involved);
United States. v. Roberts, 174 Fed. Appx. 475, 480 (11th Cir. 2006) (unpublished)
(affirming district court’s rejection of entrapment defense to § 2422(b) offense
when “Roberts initiated contact with the government’s undercover investigator”).
Brown has not convinced us that an in-depth explanation of the elements of his
offense – say, in the language the court would have used in instructing the jury at
the end of a § 2422(b) trial – would have altered his decision to plead guilty.
B.
Brown also argues that the district court violated a core concern of Rule 11
by failing to inform him of the consequences of his plea – specifically, the
possibility that he could be sentenced as a career offender. Had Brown been aware
24
of that possibility, he claims, he would not have pled guilty.
Brown points to no provision of Rule 11 or judicial decision requiring that
the district court inform a defendant of the potential sentencing enhancements that
could apply under the Guidelines. Rather, our decisions hold that Rule 11 requires
only that the court inform the defendant of the maximum statutory penalty that
could be imposed and ensure the defendant is aware of the Guidelines and has
discussed them with counsel. United States v. Mosley, 173 F.3d 1318, 1327-28
(11th Cir. 1999); Fed. R. Crim. P. 11(b)(1)(H),(M). Rule 11 does not require that
a district court make the defendant aware of possible Guideline sentencing
enhancements. See United States v. Bozza, 132 F.3d 659, 661 (11th Cir. 1998);
United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990) (holding that Rule 11
does not require district court to inform defendant of possibility of career offender
enhancement); Fed. R. Crim. P. 11 advisory committee’s note (1989) (“Since it
will be impracticable, if not impossible, to know which guidelines will be relevant
prior to the formulation of a presentence report and resolution of disputed facts,
[Rule 11] does not require the court to specify which guidelines will be important
or which grounds for departure might prove to be significant.”).
C.
In addition to his Rule 11 challenges, Brown argues that his guilty plea is
25
invalid under the Due Process Clause, because it was induced by a
misrepresentation by the government. Brown contends that the probation officer
handling his case and the prosecutor assured Kreiss, who in turn assured him, that
he would not be subject to the career offender enhancement if he pled guilty. See
Mabry v. Johnson, 467 U.S. 504, 509, 104 S. Ct. 2543, 2547, 81 L. Ed. 2d 437
(1984) (“[A] plea of guilty . . . must stand unless induced by threats . . . . [or]
misrepresentation (including unfulfilled or unfulfillable promises)”) (quotation
omitted); Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (“[W]hen the
defendant pleads guilty on a false premise in the prosecution’s plea agreement, a
guilty plea violates the Due Process Clause.”) (quotation omitted).
In support of his argument, Brown proffers an affidavit from Kreiss which
states, in part,
Prior to entering the agreement, I conducted extensive research to
determine whether or not Mr. Brown would be subject to the career
offender enhancement . . . . This included extensive conversations
with prosecuting attorneys . . . and United States Probation Officers.
The understanding of everyone involved in those conversations was
that Mr. Brown was not subject to the 4B1.1 career offender
enhancement . . . . I believed and was assured [by the United States
Attorney’s Office] that the career offender enhancement was
inapplicable, and I advised Mr. Brown accordingly. I can also state,
having had several conversations with Mr. Brown during the course
of the case, that Mr. Brown would never have entered into the plea
agreement had he thought there was any possibility the career
offender enhancement would apply.
26
Our “inherent equitable powers allow [us] to supplement the record with
information not reviewed by the district [court], though this power is not often
exercised.” Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir.
1989). Such supplementation, however, is entirely inappropriate in reviewing a
case for plain error. In conducting plain error review, we examine the record
before the district court for error that is “clear or obvious.” We are looking over
the trial judge’s shoulder, examining what was before the judge. Kreiss’s affidavit
was not before the district court; hence, we decline to supplement the record and
consider it. See United States v. Richardson, 166 F.3d 1360, 1361 (11th Cir.
1999).
As Kreiss’s affidavit indicates, Brown’s due process claim rests on factual
allegations, the veracity of which we cannot ascertain from the record before us.
In this respect, Brown’s due process claim is similar to an ineffective assistance of
counsel claim, which we generally will not hear on direct appeal, because the
claim frequently requires the development of facts outside the original record on
appeal. See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). As
with an ineffective assistance of counsel claim, Brown’s claim is best resolved in a
collateral proceeding under 28 U.S.C. § 2255, where the district court will have an
opportunity to convene a hearing, entertain the relevant evidence, and make
27
findings of fact. We therefore decline to reach the merits of Brown’s claim.
III.
Brown challenges his sentence on four grounds. First, the district court’s
retroactive application of Searcy and consequent application of the career offender
enhancement denied him due process – specifically, a fair warning of the
consequences of his criminal conduct. Second, the court’s use of the Ohio court’s
docket sheets to find that he had been convicted of two predicate offenses violated
his Sixth Amendment right to have a jury determine the existence of those
convictions. Third, his sentence is unreasonable. Fourth, the court demonstrated
substantial bias and prejudice toward him at the sentencing hearing, thereby
depriving him of his due process rights to a fair hearing. We address each ground
in turn.
We review de novo constitutional challenges to a sentence, assuming they
are properly preserved. See United States v. Paz, 405 F.3d 946, 948 (11th Cir.
2005). We review the reasonableness of a sentence under the abuse of discretion
standard. Gall v. United States, 552 U.S.___, 128 S. Ct. 586, 597, 169 L. Ed. 2d
445 (2007). In so doing, we “consider the final sentence, in its entirety, in light of
28
the [18 U.S.C.] § 3553(a) factors.”18 United States v. Valnor, 451 F.3d 744, 750
(11th Cir. 2006) (quotation and citation omitted). A sentence is unreasonable if it
“fails to achieve the purposes of sentencing as stated in section 3553(a).” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Brown “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.
A.
The Due Process Clause guarantees “the right to fair warning” of the
“attaching of criminal penalties to what previously had been innocent conduct.”
Rogers v. Tenn., 532 U.S. 451, 459, 121 S. Ct. 1693, 1698-99, 149 L. Ed. 2d 697
(2001). Consequently, the “judicial construction of a criminal statute,” which
would criminalize conduct innocent when the offense was committed, will violate
the Due Process Clause if it is “unexpected and indefensible by reference to the
law which had been expressed prior to the conduct in issue.” Id. at 461, 121 S. Ct.
18
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the public from
further crimes of the defendant, and (D) to provide the defendant with needed educational or
vocational training or medical care; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing Commission; (6) the need to
avoid unwarranted sentencing disparities; (7) and the need to provide restitution to victims. See
18 U.S.C. § 3553(a)(1)-(7).
29
at 1700 (quotation omitted).19
Brown argues that the retroactive application of Searcy violated the Due
Process Clause. He notes that the Guidelines define a “crime of violence” as “any
offense under federal or state law . . . that (1) has as an element the use, attempted
use, or threatened use of physical force against the person of another, or (2) . . .
otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.2. A § 2242(b) offense, Brown argues, “do[es] not
necessarily implicate a serious risk of physical injury to another.” Therefore, he
reasons, Searcy’s conclusion that § 2242(b) was, as a matter of law, a crime of
violence under § 4B1.2 was “unexpected and indefensible,” and, consequently, he
lacked fair warning that his offense could trigger a career offender enhancement
and result in a twenty-year prison sentence.20
19
Although Kreiss inaptly invoked the Ex Post Facto Clause in support of his objection –
the Ex Post Facto Clause only applies to legislation – we understand him to have substantively
objected to the retroactive application of Searcy on the ground that Brown lacked sufficient
notice that he would be penalized as a career offender. Therefore, we consider Brown as having
properly preserved a Due Process Clause objection.
20
Brown’s argument rests on the premise that the Due Process Clause requirement of fair
warning applies to a judicial decision that increases the penalty for an offense, rather than to a
decision that criminalizes conduct innocent at the time of commission. The Supreme Court,
however, has never held that the Due Process Clause requires fair warning as to the consequences
of criminal conduct, nor have we. In at least two prior decisions, however, we have assumed
arguendo that the Due Process Clause does so apply, and we make this assumption again here.
See United States v. Duncan, 400 F.3d 1297, 1307 n.12 (11th Cir. 2005); Metheny v.
Hammonds, 216 F.3d 1307, 1311 n.13 (11th Cir. 2000).
30
It is not necessary for us to reach the issue of whether Searcy was an
“unexcepted and indefensible” decision21, as Brown’s argument is foreclosed by
United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005). In United
States v. Booker, the Court issued two majority opinions: the first, by Justice
Stevens, held that the Sixth Amendment required that a sentence be based solely
on facts found by the jury or admitted to by the defendant, thereby making the
Sentencing Guidelines, as they then operated, unconstitutional. 543 U.S. 220,
244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621 (2005). The second, by Justice
Breyer, remedied this constitutional violation by severing the provisions of the
Sentencing Reform Act of 1984 which made the Guidelines mandatory. Id. at 245,
124 S. Ct. at 756-57. Duncan was sentenced before Booker was decided. 400
F.3d at 1300. The jury found him guilty of possession of cocaine with intent to
distribute, warranting a base offense level of 32; the district court subsequently
found that Duncan had also been in possession of cocaine base, which increased
his offense level to 38. Id. Duncan sought the benefit of the retroactive
application of Booker’s constitutional holding, which he argued would reduce his
sentence by invalidating the district court’s fact finding, thereby making him
21
Although were we to reach this issue, we doubt we would hold in Brown’s favor. See
Niederstadt v. Nixon, 505 F.3d 832, 837 (8th Cir. 2007) (en banc) (“A ruling on an unsettled
issue of . . . law will rarely if ever be unexpected and indefensible.”).
31
subject only to the sentence authorized by the jury verdict. Id. at 1306-07. He
further argued that Booker’s remedial holding should not be applied retroactively,
because that holding would make the sentence authorized by the jury verdict the
statutory maximum, rather than the lower sentence he would have received under
the retroactive application of Booker’s constitutional holding,22 and that he lacked
fair warning, in violation of his due process rights, that he would be subject to the
statutory maximum, rather than a sentence based on the Guidelines. Id. at 1307.
We explained that Duncan, despite having committed an offense when the
Guidelines were mandatory, was on notice that “the law of this Circuit [as
established in United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir. 2001)] . . .
recognized the U.S. Code as the source of the maximum sentence.” Id. at 1308.
Moreover, “the Guidelines . . . also informed Duncan that a judge would engage in
fact-finding to determine his sentence and could impose up to a sentence of life
imprisonment.” Id. at 1307. Consequently, “Duncan . . . had ample warning at the
time he committed his crime that [receiving the statutory maximum] was a
potential consequence of his actions. Applying the principles announced in
Rogers [v. Tenn, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001)],
22
This argument presumed that if Booker’s constitutional holding were applied
retroactively, but the remedial holding were not, then the Guidelines would remain mandatory,
but would not allow the imposition of any sentencing enhancement based on a finding by the
district court.
32
Duncan’s due process rights cannot be said to have been violated.” Id. Brown,
following our reasoning in Duncan, had sufficient notice when he committed his
offense that he could be sentenced to the statutory maximum attendant on that
offense, which was thirty years, ten years more than the sentence he received
based on the career offender enhancement. The retroactive application of our
holding in Searcy is simply immaterial to the issue of whether Brown had the
constitutionally required “fair warning.”
B.
Brown’s objection to the use of the Ohio docket sheets as evidence of his
prior convictions for aggravated burglary rests entirely on the Supreme Court’s
decision in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d
205 (2005). Brown reads Shepard as holding that the Sixth Amendment prohibits
the use of all but judicial records of “conclusive significance” to provide evidence
of a prior offense as a predicate for the imposition of the career offender
enhancement. See id. at 25, 125 S. Ct. at 1262. The Ohio docket sheets, Brown
contends, fall beneath the standard of “conclusive significance” purportedly
established in Shepard, because they are uncertified and the Cuyahoga County
Clerk’s website from which they were downloaded warns users that “only the
official court records . . . available in person, should be relied upon as accurate.”
33
Therefore, Brown claims, the court’s use of the Ohio docket sheets to establish
the existence of his prior convictions was a violation of his Sixth Amendment
right to have a jury make that determination.
Brown’s argument rests on a fundamental misunderstanding of the process
by which a district court determines whether a defendant is subjected to a career
offender enhancement. This determination proceeds in two stages. First, the
district court must determine if the defendant has been convicted of the prior
offense. In so determining, the court may consider “any information, including
reliable hearsay, regardless of the information's admissibility at trial, provided that
there are sufficient indicia of reliability to support its probable accuracy” as
evidence of a prior conviction. United States v. Andrews, 953 F.2d 1312, 1319
(11th Cir. 1992) (quotation and citation omitted). The court may find that a
defendant was previously convicted for a certain offense without treading on the
Sixth Amendment. See United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005).
Second, the court must determine if the prior offense constitutes a “crime of
violence” as defined in U.S.S.G. § 4B1.2.23 In so doing, the court should initially
23
The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that - - (1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or
34
look to the judgment of conviction and the statute under which the defendant was
convicted. See United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). If the
judgment is ambiguous or the statute overbroad, i.e., it penalizes conduct that may
not constitute a crime of violence as defined in § 4B1.2, then the court may only
consider the types of evidence permitted by United States v. Taylor, 495 U.S. 575,
110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), and its progeny, Shepard, in
determining whether the conduct for which the defendant was convicted
constitutes a crime of violence.24 See United States v. Aguilar-
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2.
24
In both Shepard v. United States, 544 U.S. 13, 20-21, 125 S. Ct. 1254, 1259-60,
1261,161 L. Ed. 2d 205 (2005) and United States v. Taylor, 495 U.S. 575, 600-02, 110 S. Ct.
2143, 2159-60, 109 L. Ed. 2d 607 (1990), the Court limited the type of evidence a sentencing
court could consider in determining whether a state conviction for burglary was based on facts
that would qualify it as a “violent felony” under the Armed Career Criminals Act (“ACCA”), 18
U.S.C. § 924(e).
The ACCA states that burglary is a violent felony, but does not define the elements of
burglary. The Taylor Court held that the ACCA referred to burglary in the “generic sense in
which the term is now used in the criminal codes of most States,” to wit: “an unlawful . . . entry
into or remaining in a building or other structure, with the intent to commit a crime.” 495 U.S. at
599, 110 S. Ct. at 2158. The Court, though, recognized that some states’ statutory definition of
burglary was broader than the generic definition; for example, a burglary statute could
criminalize entry into places other than buildings or structures, such as boats or cars. Id. at 599-
600, 110 S. Ct. at 2158-59. The existence of these “non-generic” statutes raised a significant
question: if the defendant was convicted under a non-generic statute, but the underlying facts of
his offense, e.g., he broke into a building, not a boat, would have secured a conviction under a
generic statute, what evidence could the sentencing court consider to show the facts underlying
the defendant’s conviction.
The Taylor Court held that a sentencing court was generally limited to considering “the
35
Ortiz, 450 F.3d 1271, 1274 n.4 (11th Cir. 2006) (“Under the Taylor line of cases in
this Court, evidentiary limitations on the district court’s application of sentencing
enhancements apply in both ACCA and non-ACCA cases.”).
Addressing an argument similar to that made by Brown, we held in United
States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005), that Shepard’s
evidentiary restrictions are non-constitutional and apply only to the second stage of
the district court’s determination of whether a prior offense constitutes a predicate
offense for the imposition of the career offender enhancement. See also United
statutory definition of the prior offense,” but could also consider a limited range of highly
conclusive evidence, such as an indictment and jury instructions, to show the facts underlying a
conviction for a “non-generic” burglary based on a guilty verdict. Id. at 600-02; 110 S. Ct. at
2159-60. The Court based its holding on its interpretation of the ACCA and its prudential
concern that allowing less conclusive evidence to be considered would lead to mini-trials on the
facts underlying a prior conviction. Id. (“In other cases, however, only the Government’s actual
proof at trial would indicate whether the defendant’s conduct constituted generic burglary.
Would the Government be permitted to introduce the trial transcript before the sentencing court
or . . . present the testimony of witnesses. “).
In Shepard, the government argued that sentencing courts should be allowed to consider a
more expansive range of evidence, such as police reports and complaint applications, in
determining the facts underlying a guilty plea to a non-generic burglary. 544 U.S. at 21, 125 S.
Ct. at 1260. The Court refused to allow such evidence, reasoning that it would undermine the
rule established in Taylor: “We are, after all, dealing with an issue of statutory interpretation and
the claim to adhere to case law is generally powerful once a decision has settled statutory
meaning.” Id. at 23, 125 S. Ct. at 1261. Rather, the Court held that a sentencing court could only
consider documents, such as a transcript of the plea colloquy or a written plea agreement, that
were similarly determinative as to the facts underlying a plea as the documents allowed by Taylor
were to the facts underlying a guilty verdict. Id. at 20-21, 125 S. Ct. at 1259-60. A plurality of
the Court reinforced its limitation on the amount of evidence allowable to the sentencing court by
reasoning that in the absence of documents with the “conclusive significance of a prior judicial
record” the district court would be forced to engage in fact finding as to the nature of the
predicate offense which could offend the Sixth Amendment, but the Court’s holding was
squarely grounded on Taylor’s interpretation of the ACCA. Id. at 25-25, 125 S. Ct. at 1262-63.
36
States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007) (“Shepard does not
apply when determining whether the government has satisfied its burden of proof
as to the existence of a prior conviction.”); United States v. Zuniga-Chavez, 464
F.3d 1199, 1204 (10th Cir. 2006) (“The [Shepard] [C]ourt did not address what
documents can be used to prove the fact of a prior conviction, but was concerned
only with what documents can be used to prove the facts underlying a conviction
where the elements of the state crime do not precisely mirror the federal
definition.”). Brown’s argument is focused solely on whether the court violated his
constitutional rights by relying on the docket sheets to find that he was convicted
of aggravated burglary, i.e., he objects to the use of the docket sheets at the first
stage of the district court’s analysis of his prior offenses. Brown does not argue
that aggravated burglary, as defined by Ohio Rev. Code Ann. § 2911.11, is not a
crime of violence under U.S.S.G. § 4B1.1 and that the district court erred in relying
on the docket sheets to determine the facts underlying his convictions.25 Thus,
Brown’s reliance on Shepard is entirely misplaced and our decision in Cantellano
forecloses his claim.
Brown similarly misunderstands our decision in United States v. Spell, 44
25
Brown, additionally, does not argue that the docket sheets lacked “sufficient indicia of
reliability to support [their] probable accuracy” as evidence of the prior convictions. See United
States v. Andrews, 953 F.2d 1312, 1319 (11th Cir. 1992) (quotation and citation omitted).
37
F.3d 936 (11th Cir. 1995). He argues that Spell stands for the proposition that a
prior conviction must be demonstrated by “a judgment or comparable record of the
disposition of charges.” Spell simply held, however, that the district court erred in
relying upon a judgment of conviction to award a career offender enhancement to
the defendant, because the text of the judgment did not clearly state what specific
offense the defendant had pled guilty to. Id. at 939-40. Spell said nothing about
requiring a certain type of document to prove the evidence of a prior conviction,
nor were the docket sheets in this case unclear as to the offense to which Brown
had pled guilty.
Brown further contends that the Government failed to establish “with
conclusive judicial documents” the dates for which he was incarcerated as a result
of his conviction on May 29, 1980, and therefore violated his Sixth Amendment
rights as elucidated in Shepard. For the reasons discussed above, this claim is
without merit.
C.
Brown objects to the reasonableness of his sentence on the grounds that the
court failed to consider two § 3553(a) factors: (1) the “unwarranted disparity”
created between defendants convicted under § 2422(b) who were subject to the
retroactive application of Searcy and those who were not, because they were
38
sentenced before Searcy was handed down, see 18 U.S.C. § 3553(a)(6); and (2)
Brown’s traumatic childhood and efforts to live a law abiding life after he was
released from prison in 1999.
The district court did not abuse its discretion in sentencing Brown to prison
for 235 months. As for Brown’s first argument, we construe statutory language as
to avoid absurd results, see Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188
(11th Cir. 1997), and Congress could not have intended that “unwarranted
disparities” in sentencing include disparities caused by the application of statutory
enhancements to defendants vis-à-vis defendants who, having been sentenced
earlier, were not subject to those enhancements. Congress adds statutory
enhancements and increased statutory maximums frequently; courts regularly
interpret enhancements to expand or constrict their reach. Congress did not intend
to prevent courts from imposing such laws or interpretations.
We find our recent decision in United States v. Amedeo, 487 F.3d 823, 832-
34 (11th Cir. 2007), instructive as to Brown’s second argument. Amadeo
contended that his sentence was unreasonable because the court “improperly
ignored” various mitigating factors. We explained that “in imposing a reasonable
sentence, the district court need only acknowledge that it considered the § 3553(a)
factors,” as the district court did during its sentencing colloquy with Brown, and
39
“need not discuss each of these factors in either the sentencing hearing or in the
sentencing order.” Id. at 833 (quotation and citation omitted). Thus, we
concluded that “although the district court’s sentencing order made no mention of
evidence that arguably mitigated in Amedeo’s favor under § 3553(a), we cannot
say that the court’s failure to discuss this mitigating evidence means that the court
erroneously ignored or failed to consider this evidence in determining Amedeo’s
sentence.” Id. (quotation omitted). We reach the same conclusion as to Brown’s
sentencing hearing.
Brown’s sentence was within the correctly calculated Guidelines range. See
Talley, 431 F.3d at 788. (“Although either a defendant or the government can
appeal a sentence within the Guidelines range and argue that it is unreasonable,
ordinarily we would expect a sentence within the Guidelines range to be
reasonable.”). Although the court’s justification for its sentence could have been
more extensive and detailed, it appears clear to us that it based its sentence on
Brown’s lengthy criminal history and the need to deter Brown from committing
future offenses. See 18 U.S.C. § 3553(a)(2)(C). As such, the sentence was not
unreasonable.
D.
Finally, Brown contends that the district court displayed “pervasive bias”
40
and a “high degree of antagonism towards Brown” during the sentencing colloquy,
thereby denying him his due process right to a fair and impartial sentencing
hearing. See Cross v. State of Ga., 581 F.2d 102, 104 (5th Cir. 1978) (“Due
process requires a fair trial before a fair and impartial judge.”).26 Brown seeks as
his remedy the reversal of his sentence and remand to a different judge for re-
sentencing.
When counsel fails to preserve an objection to the court’s allegedly biased
statements, that objection may not be raised on appeal unless the appellant can
demonstrate fundamental error. United States v. Ramos, 933 F.2d 968, 974 (11th
Cir. 1991). We have suggested that fundamental error may be demonstrated by
showing “such pervasive bias and prejudice that it unfairly prejudices one of the
parties.” Id. at 973.
Brown offers three examples of the district court’s behavior which, he
alleges, indicate the court’s pervasive bias towards him: (1) the court’s lengthy
statement to Kreiss in response to his Ex Post Facto objection, which Brown
characterizes as demonstrating the court’s predetermined intent to sentence him as
a career offender; (2) the court’s statements to the prosecutor that he should get
26
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted, as
binding precedent in the Eleventh Circuit, all decisions of the former Fifth Circuit announced
prior to October 1, 1981.
41
the documents necessary to substantiate Brown’s December 21, 1979, conviction
“in case this comes back,” and (3) what Brown characterizes as the court’s
“ridicule” of Kreiss for his objections to the use of the Ohio convictions as
predicate offenses, such as the court asking Kreiss whether he thought the docket
sheet “said he was charged with jaywalking.”
Brown focuses his attention on the following segment of the court’s
colloquy with Kreiss, recited in whole supra part I.D, regarding his Ex Post Facto
objection: “then we’ll just put them aside and accept the guidelines as advisory,
including the career offender provision, and we will sentence him outside the
guidelines to the same sentence and say it’s reasonable.”
If the court’s statement to Kreiss indicated that the court had reached some
unshakeable conclusion as to Brown’s sentence prior to the hearing, it would be
cause for concern. The statement, though, taken in its full context, is simply the
court’s attempt to explain to Kreiss why his Ex Post Facto objection was without
merit by discussing the procedure under which Brown would be sentenced. To
paraphrase, the court was stating that the Guidelines were no longer mandatory
and therefore Brown’s classification as a career offender was not determinative as
to the sentence he would receive; rather, the court could award any reasonable
sentence.
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After making the statement to which Brown objects, the court considered
Kreiss’s challenge to the admission of the three Ohio convictions as predicate
offenses, ruling in his favor as to one conviction. The court then heard argument
from Kreiss as to Brown’s horrific upbringing and attempts to raise his family and
start a business after his release from prison in 1999 and testimony to the same
effect from Brown and Cathleen Nunez, his sister. Thus, “nothing in the record of
this case compels us to conclude that the district judge closed his mind to evidence
favorable to the appellant before the sentencing proceedings were concluded.”
United States v. Greenman, 700 F.2d 1377, 1379 (11th Cir. 1983) (holding that
judge’s comment “[I] had already made a decision as to what the sentence should
be in this case” in response to appellant’s objection to admission of evidence in
sentencing hearing did not evidence bias when the comment, understood in
context, referred to the specific objection made by appellant and “[t]he judge
below did not refuse or fail to consider any evidence or argument favorable to
appellant. He reviewed all relevant reports and gave appellant an opportunity to
speak before imposition of the sentence.”) (quotation omitted); see United States
v. Vernier, 152 Fed. Appx. 827, 833-834 (11th Cir. 2005) (unpublished) (holding
that district court’s announcement that it intended to depart from the Guidelines,
made at the start of sentencing hearing, did not evidence bias when court allowed
43
“defense to argue both the facts and the law at the hearing”).
Brown’s two other examples of bias do not warrant extended discussion.
As the Supreme Court has explained, “judicial remarks during the course of a trial
that are critical or disapproving of or even hostile to counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge . . . they will do so if
they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct.
1147, 1157, 127 L. Ed. 2d 474 (1994). The comments that Brown calls to our
attention do not reveal such a “high degree” of antagonism on behalf of the district
judge. Cf. Sandstrom v. Butterworth, 738 F.2d 1200, 1213-14 (11th Cir. 1984)
(holding that judge’s statements that petitioner was “rude and nasty” and “acting
like an animal” were sufficient to indicate bias to the degree that it denied
petitioner a fair tribunal).
IV.
For the reasons herein stated, the judgment of the district court is
AFFIRMED.
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