[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14886 JUNE 8, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00448-CR-T-26-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM HERMAN DORMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 8, 2007)
Before ANDERSON, MARCUS and COX, Circuit Judges.
MARCUS, Circuit Judge:
William Herman Dorman appeals his 300-month sentence for conspiracy to
possess with intent to distribute 100 kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and 846. For the first time on appeal, he argues that the
district court denied him his right of allocution at his sentencing hearing, in
violation of due process. He also contends that his sentence was unreasonable
under United States v. Booker, 543 U.S. 220 (2005), based on the district court’s
failure to consider all relevant mitigating factors. After thorough review, we
affirm.
I.
“[A] district court’s failure to afford a defendant the right of allocution will
be reviewed only for plain error where the defendant did not timely object.”
United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). We will correct
plain error only where (1) there is an error; (2) the error is plain or obvious; (3) the
error affects the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) the error seriously affects the fairness, integrity, or public
reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,
307 (11th Cir. 1996).
We review a district court’s interpretation of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Jordi, 418 F.3d 1212,
1214 (11th Cir.), cert. denied, 546 U.S. 1067 (2005). After a district court has
calculated a defendant’s advisory Guidelines range, it “may impose a more severe
2
or more lenient sentence,” which we review only for reasonableness. United States
v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). In conducting our
reasonableness review, which is highly deferential, we do not apply the
reasonableness standard to each individual decision made during the sentencing
process; instead, we review only the final sentence for reasonableness, in light of
the § 3553(a) factors. United States v. Martin, 455 F.3d 1227, 1237 (11th Cir.
2006). The district court need not state on the record that it has explicitly
considered each factor and need not discuss each factor. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005) (per curiam). Rather, an acknowledgment by
the district court that it has considered the defendant’s arguments and the § 3553(a)
factors will suffice. Id.
II.
The relevant facts are straightforward. On December 15, 1998, Dorman and
a co-defendant, John J. Cercena, were indicted for conspiring to possess with intent
to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count One), and attempting to actually possess with intent
to distribute the same amount, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count Two). Pursuant to a written plea agreement, Dorman pled guilty to Count
One and the government dismissed Count Two. At the subsequent plea colloquy,
3
among other things, Dorman testified that he had never been treated for any type of
mental illness. Dorman also stated that he understood where he was and why he
was in court at the plea colloquy, and the importance of the proceeding. The
district court accepted Dorman’s guilty plea and he was released on conditions of
an existing bond, pending sentencing.
The probation officer prepared a presentence investigation report (“PSI”),
which assigned Dorman a base offense level of 26, pursuant to U.S.S.G. §
2D1.1(c)(7), and recommended a two-point upward adjustment for obstruction of
justice, pursuant to U.S.S.G. § 3C1.1, and a six-level upward adjustment based on
Dorman’s status as a career offender (he had two prior felony convictions for
controlled substance offenses), for an adjusted offense level of 34. With a criminal
history category III (based on six criminal history points), which was enhanced to a
VI to account for Dorman’s status as a career offender, U.S.S.G. § 4B1.1,
Dorman’s Guidelines range was 262 to 327 months’ imprisonment. In the
“Offender Characteristics” section, the PSI noted, inter alia: “The defendant states
that he has no history of emotional health problems and has undergone no
treatment for such problems.”
Dorman objected to the drug quantity attributed to him and the base offense
level recommended by the PSI, arguing that he had agreed to purchase less
4
marijuana than the PSI reported. Dorman also objected to the two-level increase
for obstruction of justice, requested an adjustment for acceptance of responsibility,
and objected to his career-offender status.
Before the sentencing hearing, Dorman absconded. On March 31, 1999, the
district court issued a warrant for Dorman’s arrest for violating conditions of his
release. He also was indicted for failing to appear to serve his sentence, a violation
of 18 U.S.C. § 3146(a)(1). Over five years later, Dorman was arrested in Puerto
Vallarta, Mexico and eventually extradited to the United States to face the failure-
to-appear charge. Notably, on June 7, 2004, which was only about two-and-a-half
months before the hearing at which Dorman asserts the allocution error occurred,
at a hearing before the United States District Court for the Central District of
California, Dorman stated that he understood what he was charged with and that he
was in court based on the failure-to-appear charge. The district court then ordered
Dorman be remanded to the custody of the United States Marshals Service for
transport back to the United States District Court for the Middle District of Florida.
Dorman returned to the Middle District of Florida and, on August 27, 2004,
the district court conducted a sentencing hearing on the marijuana-conspiracy
charge to which Dorman had pled guilty in 1998. At the start of the hearing, when
the court asked the parties to state their appearances, Dorman interjected, “[h]e’s
5
fired, he is not my attorney.” Dorman then said that he had fired counsel because
counsel refused to sign an “affidavit -- a contract.” The district court asked
Dorman to state what counsel had done to be ineffective, to which Dorman
responded, “you will release me because nobody has proven that --.” The district
court observed, “[l]et the record reflect that Mr. Dorman once again is engaging in
nonsensical jibberish behavior.”
The district court then stated its intent to proceed with the sentencing
hearing as scheduled and allowed counsel to remain. Dorman again interjected,
this time saying that “[t]here is no proof of any contract which means that this
Court does not have jurisdiction over me.” In response to the court’s query
concerning whether, prior to the sentencing hearing, Dorman had reviewed the PSI
with counsel, Dorman refused to answer, instead stating, “Objection, Your Honor,
my name is William Herman Dorman.” The district court overruled Dorman’s
objections to the offense-level computations and then heard argument on Dorman’s
criminal-history computation. At this point, Dorman again interrupted and stated,
“Objection, Your Honor, my name is William Herman Dorman.”
The district court later observed that while Dorman’s counsel made his
argument in support of a downward departure, “Mr. Dorman has repeatedly and in
a raised voice continued on with his nonsensical jibberish. I want the record to
6
reflect [what] . . . [Dorman] is saying while I’m having this dialogue with [defense
counsel] and . . . [government counsel], but he has continued in his disruptive
behavior . . . .” The government argued against a downward departure based on
the PSI’s description of how Dorman had engaged in continual criminal activity
each time he was released from prison.
The district court subsequently overruled Dorman’s objections to his
criminal-history calculation, including the career-offender enhancement. The court
also overruled Dorman’s request for a downward departure under U.S.S.G. §
4A1.3, noting that Dorman continued to commit drug offenses as he got older. The
court then adopted the PSI’s recommendation of an offense level of 34 and a
criminal history category VI, thus yielding a Guidelines range of 262-327 months.
The court then advised Dorman of his right to address the court in mitigation, and
right to allocution, and the following exchange took place:
DORMAN: There is a lack of a verified complaint and lack of a verified
complaint.
COURT: Start taking that down, please.
DORMAN: - - under oath. The court on its own can dismiss this alleged
case and all alleged cases. In view of this, I cannot accept the
contract and will not sign the contract. I do not accept, I do not
understand, I did not sign, I will not accept the contract and I
will not sign the contract.
COURT: Can you tell me what contract you are talking about, Mr.
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Dorman?
DORMAN: Hopefully, today, somebody will follow procedure, somebody
will not address it to me.
COURT: All right, it’s obvious to me that he wants to continue on with
his nonsensical statements.
The government urged the court to impose a high-end sentence given Dorman’s
lack of respect for the court and absconding before the original sentencing hearing.
Another exchange between the court and Dorman then took place:
COURT: Mr. Dorman, why don’t you talk to me instead of the Marshal .
...
DORMAN: - - it’s just pathetic.
COURT: It is pathetic. You’re a pathetic person. You are a career
criminal and you’re going to jail for a long time.
DORMAN: For the record, my name is William Herman Dorman, live flesh
and blood man.
The district court sentenced Dorman to a 300-month term of imprisonment,
followed by five years of supervised release, and stated:
this is a mid-level sentence, and the reasons are obvious, he fled from
the jurisdiction of this Court to avoid sentencing for several years. He
is a career criminal, really -- he deserves the top of the guidelines, but
I’m going to give him credit for that year you were talking about, Mr.
Farmer, okay.
8
Dorman’s counsel then renewed all previous objections. After the court remanded
Dorman to the custody of the United States Marshals Service, Dorman made an
objection, specifically, “[h]opefully, somebody will follow procedure.” The court
observed that it had followed procedure and that was why Dorman was “going to
prison for 25 years.” Dorman stated, “[t]his proceeding is illegal” and the court
observed,
he continues to, in a loud voice, talk about some contract that’s
nonsensical, and he’s also given me no just reason why I should
discharge his very fine lawyer, Mr. Farmer. I’ve given him an
opportunity to tell me what it is Mr. Farmer has done besides not
signing some contract and he hasn’t done it.
At the end of the hearing, Dorman stated, “[t]his is an illegal proceeding,” and
“[l]et it be acknowledged all over the world, people will know in many walk of
lifes [sic] authority of this country . . .” The district court entered final judgment
on September 17, 2004.
Dorman timely appealed. Dorman’s counsel moved to withdraw from
representation due to an appearance of conflict of interest, which we granted.
After substitute counsel was appointed for Dorman, but before briefing was
completed, we remanded the case to the district court for the limited purpose of
determining whether Dorman wished to pursue the appeal, whether he was
9
competent to make that decision, and whether a guardian ad litem was necessary to
pursue the appeal.
On remand, a magistrate judge responded by ordering Dr. George M.
Northrup, an expert in the field of psychiatry, to examine Dorman to determine his
competency to appeal, his ability to understand the nature and consequences of the
proceedings against him, and his ability to assist counsel properly in his appeal.
On September 30, 2005, at a competency hearing, Dr. Northrup opined that
Dorman was not competent to make the decision as to whether he wanted to pursue
the instant appeal, but that Dorman could become competent with the correct
medication within three to twelve months. Dr. Northrup explained that his opinion
was based, in part, on Dorman’s conspiracy theories concerning the government
and his uncooperativeness. The magistrate judge, after hearing Dr. Northrup’s
testimony and considering her own interactions with Dorman, indicated she was
not prepared to accept Dr. Northrup’s opinion but rather determined that further
evaluations were warranted. Accordingly, the magistrate judge ordered that
Dorman be transferred to the Federal Correctional Institution in Butner, North
Carolina to be evaluated further and to determine whether he was competent to
proceed with the appellate proceedings.1
1
Contrary to Dorman’s suggestion that he was deemed incompetent, after the first
competency hearing, the magistrate judge did not find Dorman to be incompetent. The
10
A little over five months after the first competency hearing, on March 9,
2006, the magistrate judge held another competency hearing at which Dr. Tanya
Cunic, a forensic psychologist, testified. Dorman had undergone psychological
examinations, and Dr. Cunic had assessed his competency during the course of
numerous informal interviews. Dr. Cunic opined that Dorman’s behavior and
beliefs, although “out of the norm,” were not symptomatic of mental illness.
Rather, according to Dr. Cunic, Dorman’s behavior and expressed beliefs were
consistent with “free-men” theories, such as the Montana Freemen or Republic of
Texas, but were not indicative of delusional or disordered thought processes. In
Dr. Cunic’s opinion, Dorman was competent to understand the instant appellate
proceedings and to assist his counsel in those proceedings.
Based on this testimony and having had an opportunity to observe Dorman,
the magistrate judge found that Dorman was not suffering from a mental disease
and was competent to proceed. The magistrate judge noted Dr. Northrup’s earlier
opinion that Dorman was incompetent, but found “the more recent competency
evaluation of Defendant by Dr. Cunic conducted in a custodial setting over an
extended period of time is entitled to greater weight.” The magistrate judge also
noted that at the most recent competency hearing, Dorman had unequivocally
magistrate judge expressly indicated she wanted more information before making any finding as
to Dorman’s competence.
11
requested continued representation by the Federal Public Defender’s Office,
thereby indicating his wish not to forego his right to appeal. Accordingly, the
magistrate judge issued a Report and Recommendation (“R&R”) stating that
Dorman was competent to proceed in the appellate court, that he should continue to
be represented by counsel, and that appointment of a guardian ad litem was
unnecessary. The district court adopted the R&R. Shortly thereafter, the case
returned to this Court for further proceedings.
III.
Dorman argues, for the first time on appeal, that the district court violated
his allocution and due-process rights at the sentencing hearing when, after giving
Dorman the opportunity to allocute and present mitigating evidence, the district
court interrupted Dorman’s statements, although they did not concern allocution or
mitigation. Dorman urges that the district court erroneously interpreted his
conduct as deliberately disruptive, as opposed to the result of a mental illness.
Dorman asks us to order a new sentencing hearing based on Dr. Northrup’s
determination that Dorman was not competent. We are unpersuaded.
Again, because Dorman raises this claim for the first time on appeal, our
review is only for plain error. We can find no plain error. “Allocution is the right
of the defendant to make a final plea on his own behalf to the sentencer before the
12
imposition of sentence.” Prouty, 303 F.3d at 1251. Rule 32(i)(4)(A)(ii) of the
Federal Rules of Criminal Procedure provides that the court, prior to imposing
sentence, must “address the defendant personally in order to permit the defendant
to speak or present any information to mitigate the sentence.” The allocution
process affords a criminal defendant “an opportunity to plead personally to the
court for leniency in his sentence by stating mitigating factors and to have that plea
considered by the court in determining the appropriate sentence.” United States v.
Gerrow, 232 F.3d 831, 833 (11th Cir. 2000) (per curiam) (internal quotation marks
omitted), overruled in part on other grounds, United States v. Sanchez, 269 F.3d
1250, 1277 n.51 (11th Cir. 2001) (en banc).
Here, there is little question that the district court, on numerous occasions,
addressed Dorman personally and provided him with the chance to he heard and to
present mitigating evidence, to which Dorman provided non-responsive answers.
The court also expressly afforded Dorman the opportunity to make a final plea on
his own behalf, to which Dorman again provided wholly non-responsive answers.
Moreover, the district court heard mitigating argument from Dorman’s counsel,
during which Dorman continued to interrupt with comments that, again, did not
relate to allocution or mitigation. On this record, it is clear that the district court
complied with the requirements for a valid allocution, and neither our case law nor
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Rule 32(i)(4)(A)(ii) requires more. Simply put, a review of this record reveals
neither error nor plain error based on allocution.
Moreover, where, as here, a defendant asserts a due-process violation that is
rooted in the sentencing court’s misunderstanding of his behavior at sentencing, he
must establish (1) that the disputed information is materially false or unreliable,
and (2) that the sentencing judge relied on that information. United States v.
Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989) (per curiam). First, from our
thorough review of the record, there is no evidence that at the time of sentencing,
the district court had a materially false understanding of Dorman’s mental
condition. See id. At his plea hearing, Dorman testified that he had never been
treated for any type of mental illness and that he fully understood the charges he
faced. After he absconded and was extradited from Mexico to the Central District
of California, only two-and-a-half months before the allocution procedure he now
challenges, Dorman again indicated that he understood why he was before the
court and the charges against him. According to the PSI, Dorman reported having
no history of mental or emotional health problems and had undergone no treatment
for such problems in the past. Although at sentencing, the district court observed
that Dorman made “nonsensical jibberish” statements and engaged in “disruptive
behavior,” the court made no finding one way or the other as to whether those
14
statements indicated an irregular mental condition. In short, the record does not
reveal an error on the first Giltner prong -- disputed information that is materially
false or unreliable concerning Dorman’s behavior at the sentencing hearing -- let
alone plain error.
Likewise, on the second prong, there is no evidence that the district court
relied on Dorman’s mental condition when imposing sentence. That is to say, even
if Dorman could satisfy the first prong of Giltner, there is no indication in the
record that his mental condition had anything to do with his sentence. Rather, the
record reflects that the district court relied both on the fact that Dorman fled from
the jurisdiction of the court to avoid sentencing for several years and on his
criminal history to impose a sentence in the middle of the applicable Guidelines
range. Dorman’s mental condition was not mentioned in connection with the
imposition of sentence. Moreover, the subsequent competency evaluations and the
unambiguous findings of the magistrate judge determined Dorman to be
competent. Notably, Dorman has not objected to the competency proceedings nor
to the competency findings. On this record, Dorman cannot satisfy his burden to
establish a due-process error, let alone a plain error. See id.2
2
Because Dorman has not satisfied the first two prongs of the plain error test -- (1) error,
(2) that was plain -- we need not, and do not, reach the other prongs. It is for this reason that our
decision in Prouty is inapposite. In Prouty, the parties agreed that the district court had not
afforded Prouty any opportunity to allocute before sentencing, and thus there was error and it
15
IV.
We likewise are unpersuaded by Dorman’s argument that his sentence was
unreasonable. After Booker, we have held that the district court first must
correctly calculate the defendant’s Guidelines range, and then, using the § 3553(a)
sentencing factors, may impose a more severe or more lenient sentence, as long as
it is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).
The relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
(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 . . . [treatment] . . . ; (3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . .; (6) the need to
avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and (7) the
need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); see also Booker, 543 U.S. at 260-61. As we have observed,
“nothing in Booker or elsewhere requires the district court to state on the record
that it has explicitly considered each of the § 3553(a) factors or to discuss each of
was plain. See 303 F.3d at 1251 (“Both parties in this case agree that the court did not comply
with [the prior version of Rule 32(i)(4)(A)(ii)], which requires the court to afford the defendant
an opportunity to allocute before sentence is imposed.”). We then concluded that Prouty had
satisfied his burden on the third and fourth prongs of the plain error test, where Prouty had not
received the lowest sentence possible under his Guidelines range. Id. at 1253. Here, by contrast,
Dorman was afforded the rights to which he is entitled under Rule 32(i)(4)(A)(ii), and
accordingly, there was no error, plain or otherwise.
16
the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005).
The record does not support Dorman’s contention that his sentence is
unreasonable. Rather, the district court considered the § 3553(a) factors,
accurately calculated the Guidelines range, and sentenced Dorman within that
range. See Scott, 426 F.3d at 1330. Despite the district court’s failure to explicitly
articulate that it had considered the § 3553(a) factors, by virtue of the court’s
consideration of Dorman’s objections and his motion for a downward departure,
the court did, in fact, consider a number of the sentencing factors: (1) the court’s
review of the amount of drugs attributable to Dorman implicated the nature and
circumstances of the offense, 18 U.S.C. § 3553(a)(1); (2) the court’s observation
that Dorman had continuously committed criminal activity each time he was
released from prison concerned the need for the sentence imposed to afford
adequate deterrence to criminal conduct and to protect the public from further
crimes of the defendant and took into account Dorman’s history, id. § 3553(a)(1),
(2); and (3) the court’s consideration of the PSI, the advisory Guidelines range, and
the parties’ arguments implicated the types of sentences available, id. § 3553(a)(3).
Dorman’s assertion that his sentence is unreasonable because his
co-conspirators received lesser sentences, which implicates § 3553(a)(6), is
17
without merit because, as even Dorman acknowledges, in the co-defendants’ cases
the government filed substantial-assistance motions. The government,
understandably, did not file a motion for substantial assistance on Dorman’s behalf
in light of his decision to abscond to Mexico in 1999 prior to his sentencing and his
return for sentencing only after having been arrested and extradited. Moreover,
Dorman was sentenced at the middle of the Guidelines range and below the
maximum statutory sentence of life imprisonment. Cf. United States v. Winingear,
422 F.3d 1241, 1246 (11th Cir. 2005) (per curiam). In short, Dorman has not
shown that his sentence was unreasonable under Booker.
AFFIRMED.
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United States v. William Herman Dorman
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-06-08
Citations: 488 F.3d 936
Copy CitationsCombined Opinion