[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 1, 2012
No. 11-10510
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 1:09-cr-00030-WLS-TQL-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DEXTER GRIFFIN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 1, 2012)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Dexter Griffin appeals his conviction and sentence for distributing crack
cocaine within 1,000 feet of a public housing location and using a person under the
age of 18 to commit the offense and to assist in avoiding detection or apprehension
for that offense. After a thorough review of the record, we affirm.
Griffin and two codefendants were charged by superseding indictment with
multiple drug-related offenses. Griffin agreed to plead guilty to a single count of
distributing crack cocaine within 1,000 feet of a public housing location and to
using a person under the age of 18 to commit and to assist in avoiding detection or
apprehension for that offense, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a)
and (c). Griffin admitted that on several occasions, a confidential informant
purchased crack from him within close proximity to different public housing
facilities. During one purchase, Griffin used a five-year-old child to avoid
suspicion and hide the location of the drugs.
At the change-of-plea hearing, Griffin stated that he understood the charges
against him and the terms of the plea agreement, and that he was satisfied with his
counsel. The plea agreement contained a waiver-of-appeal provision, in which
Griffin agreed he could not directly appeal or collaterally challenge his sentence
unless it exceeded the advisory guidelines range or if the government appealed.
The court explained the waiver-of-appeal provision at the hearing, and Griffin
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indicated that he understood it.
The probation officer calculated Griffin’s advisory guideline range as 92 to
115 months’ imprisonment, based on an adjusted offense level of 23 and a criminal
history category VI. Prior to sentencing, Griffin advised the court that his attorney
violated his Fifth and Fourteenth Amendment rights by acting in bad faith. Griffin
alleged that he suffered from depression and that his attorney and the government
coerced him into pleading guilty by promising him that the government would file
a motion for a reduction in sentence under U.S.S.G. § 5K1.1. But, according to
Griffin, they never intended to do so.
At sentencing, the court addressed Griffin’s allegations, noting that he had
expressed satisfaction with counsel during the change-of-plea hearing and that he
had stated that no one had coerced him into pleading guilty. Griffin testified that
counsel had told him that his depression was not a legal defense and that the
§ 5K1.1 motion would reduce his sentence. When confronted with his statements
from the plea hearing, Griffin admitted that he lied at the change-of-plea hearing.
Nevertheless, Griffin informed the court that he did not want to withdraw his plea
and he confirmed that he was guilty. Griffin’s counsel testified that he had advised
Griffin that the government had discretion to file the § 5K1.1 motion. None of the
other witnesses who testified could corroborate Griffin’s testimony about the
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§ 5K1.1 motion.
Although the court concluded that counsel had not done anything improper,
it appointed new counsel and took the matter of Griffin’s depression under
advisement.
The probation officer revised the sentencing calculation to add an
enhancement for obstruction of justice based on Griffin’s perjury during the prior
hearing. The application of the enhancement also rendered Griffin ineligible for
the acceptance-of-responsibility reduction. The revised adjusted offense level was
28, which yielded a guideline range of 140 to 175 months’ imprisonment. Griffin
filed objections to the new calculations.
At sentencing, the court confirmed that Griffin did not wish to withdraw his
guilty plea. Griffin then objected to the perjury enhancement, arguing that any
statements he made were in the context of his request for new counsel and thus
were made without the benefit of counsel. The court overruled the objections,
applying the enhancement not on the basis of Griffin’s admission that he lied, but
rather based on Griffin’s statement that the government had promised him a 5K1.1
reduction. The court sentenced Griffin to 157 months’ imprisonment, which was
the middle of the guideline range.
Griffin now appeals, raising three issues. First, he argues that he was denied
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counsel during a critical stage of the proceedings, and he was sentenced more
harshly because of statements he made to the court when he had no counsel.
Alternatively, he argues that he was denied effective assistance of counsel during a
critical stage. Second, he argues that the district court erred by increasing his
offense level for alleged obstruction of justice and by failing to reduce his offense
level for acceptance of responsibility. He asserts that his sentence appeal waiver
does not bar these challenges. Third, he argues that the district court violated his
right against double jeopardy by convicting him of three crimes, two of which were
lesser-included offenses of the third, and that he received multiple punishments for
the same offense. We address each point in turn.
I.
We review the district court’s legal conclusions de novo and its factual
findings for clear error. United States v. Villarreal, 613 F.3d 1344, 1349 (11th Cir.
2010). Where a defendant fails to raise a claim in district court, we review only for
plain error. United States v. Davila, 664 F.3d 1355, 1358 (11th Cir. 2011). To
establish plain error, a defendant must show that there was (1) error, (2) that was
plain, (3) that affected his substantial rights, and (4) that seriously affected the
fairness, integrity, or public reputation of judicial proceedings. Id. (citation
omitted).
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The Sixth Amendment provides that in all criminal prosecutions, “the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. Once the right to counsel attaches, the accused
is entitled to counsel during any “critical stage” of the post-attachment
proceedings. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). A petitioner
claiming that he was denied counsel at a critical stage must show that he was
“actually or constructively . . . denied counsel by government action.” Hunter v.
Moore, 304 F.3d 1066, 1071 (11th Cir. 2002) (citing Bell v. Cone, 535 U.S. 685,
696 n.3 (2002)).
The Sixth Amendment also guarantees every criminal defendant the right to
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(1984). Nevertheless, we “will not generally consider claims of ineffective
assistance of counsel raised on direct appeal where the district court did not
entertain the claim nor develop a factual record.” United States v. Patterson, 595
F.3d 1324, 1328 (11th Cir. 2010) (citation omitted). The preferred means for
deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255
motion “even if the record contains some indication of deficiencies in counsel’s
performance.” Id. at 1328-29 (citing Massaro v. United States, 538 U.S. 500, 504
(2003)). We will, however, consider those claims on direct appeal “if the record is
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sufficiently developed.” Id. (citation omitted).
Here, it is unnecessary to decide whether Griffin properly raised in the
district court his argument that he was denied counsel at a critical stage, because
under any standard of review, his argument lacks merit. His attorney was present
and represented him up until the district court decided, without finding any
wrongdoing by his attorney, that it would appoint new counsel. Moreover, Griffin
has not shown that he was denied counsel by government action, because neither
the court nor the prosecutor did anything to prevent his attorney from objecting to
questions or from consulting with him at any time. See Hunter, 304 F.3d at 1071.
We do not address Griffin’s argument that he was denied effective assistance
of counsel because such claims are more properly brought in a § 2255 motion
where, as here, the record was not sufficiently developed. Patterson, 595 F.3d at
1328.
II.
We review the validity of a sentence appeal waiver de novo. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence appeal waiver will be
enforced if it was made knowingly and voluntarily. Id. To establish that the
waiver was made knowingly and voluntarily, the government must show that either
(1) the district court specifically questioned the defendant about the waiver during
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the plea colloquy, or (2) the record makes clear that the defendant otherwise
understood the full significance of the waiver. Id. We have repeatedly enforced
broad appeal waivers that prevent an appellant from challenging a district court’s
guideline calculations, regardless of its calculations. See, e.g., United States v.
Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United States v. Benitez-Zapata,
131 F.3d 1444, 1445-47 (11th Cir. 1997).
Here, the record reflects that Griffin knowingly and voluntarily entered into
a sentence appeal waiver. Because the sentencing challenges Griffin raises fall
within the waiver, they are barred and we will not consider them.
III.
We normally review a double jeopardy challenge de novo. United States v.
Smith, 532 F.3d 1125, 1126 (11th Cir. 2008). Generally, a guilty plea waives all
non-jurisdictional challenges to a conviction. Id. at 1127. Where a defendant fails
to raise a double jeopardy claim in the district court, we review only for plain error.
Smith, 532 F.3d at 1126.
The Fifth Amendment’s Double Jeopardy Clause guarantees that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. This guarantees against a second prosecution for the same
offense after acquittal, a second prosecution for the same offense after conviction,
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and multiple punishments for the same offense. United States v. Bobb, 577 F.3d
1366, 1371 (11th Cir. 2009). Only the prohibition against multiple punishments
for the same offense is relevant here.
Generally, when a defendant has violated two different criminal statutes, the
Double Jeopardy Clause protects him from being convicted under both when the
statutes prohibit the same act or when one act is a lesser-included offense of the
other. Id. at 1371-72. “The proper remedy for convictions on both greater and
lesser included offenses is to vacate the conviction and the sentence of the lesser
included offense.” United States v. Boyd, 131 F.3d 951, 954–55 (11th Cir. 1997).
The relevant statutes at issue in this case are 21 U.S.C. §§ 841(a)(1), (b),
860(a), and 860(c). Under § 841(a)(1), it is unlawful for any person knowingly or
intentionally to distribute a controlled substance. 21 U.S.C. § 841(a)(1). Section
841(b) establishes the penalties for violating § 841(a)(1). Id. § 841(b). Under
§ 860(a), any person who violates § 841(a)(1) by distributing a controlled
substance within 1,000 feet of a housing facility owned by a public housing
authority is subject to twice the maximum punishment authorized by § 841(b). Id.
§ 860(a). Finally, § 860(c) provides that any person at least 21 years of age who
knowingly and intentionally uses a person under 18 years of age “to violate this
section” or uses a person under 18 years of age “to assist in avoiding detection or
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apprehension for any offense under this section . . . is punishable by a term of
imprisonment, a fine, or both, up to triple those authorized by section 841 of this
title.” Id. § 860(c).
We have held that 21 U.S.C. §§ 841(a)(1) and 860 constitute the same
offense for double-jeopardy purposes. United States v. Freyre-Lazaro, 3 F.3d
1496, 1507 (11th Cir. 1993). In addition, § 841(a)(1) is a lesser-included offense
of § 860, and § 860 should apply in lieu of § 841(b) when the offense occurs
within 1,000 feet of a school. Id. Furthermore, § 860 “is a substantive criminal
statute, not a mere sentence enhancer for section 841(a).” United States v.
Anderson, 200 F.3d 1344, 1347 (11th Cir. 2000) (citation omitted).
Here, Griffin failed to raise his double jeopardy argument in district court,
and under plain error review, his argument fails. The district court did not find
Griffin guilty in separate counts for the same offense. Rather, the court
adjudicated him guilty of only one count, and imposed only one sentence. It
appears that all of the statutes were included in the same count of the indictment,
and again in the judgment, because § 860(c), standing alone, does not state all of
the elements of the offense. See 21 U.S.C. § 860(c). The district court provided all
of the sections to provide context for the criminal conduct. This does not create
multiple punishments.
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Accordingly, for the foregoing reasons, we affirm Griffin’s conviction and
sentence.
AFFIRMED.
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