UNITED STATES of America, Plaintiff-Appellee, v. Anthony Willard JOHNSON, Defendant-Appellant.
No. 14-10390
United States Court of Appeals, Eleventh Circuit.
Dec. 2, 2015.
Non-Argument Calendar.
Michael Caruso, Aimee Ferrer, Margaret Y. Foldes, Federal Public Defender‘s Office, Miami, FL, for Defendant-Appellant.
Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Johnson appeals his conviction and 235-month sentence for possession of a firearm and ammunition by a convicted felon, in violation of
I
We review the denial of a request for a continuance for an abuse of discretion. United States v. Baker, 432 F.3d 1189, 1248 (11th Cir.2005). The Sixth Amendment right to have the assistance of counsel encompasses the right of a criminal defendant who has the means to retain counsel to choose who will represent him. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006). The Supreme Court has held that deprivation of the right to counsel of choice is a structural error, and a defendant need not show prejudice or ineffectiveness to prove a violation of this right. Id. at 148, 150-51, 126 S.Ct. at 2563-65.
Nevertheless, the right to counsel of choice is not absolute, and trial courts have wide latitude to balance the right to counsel of choice against thе needs of fairness and the demands of the court‘s calendar. Id. at 152, 126 S.Ct. at 2565-66. Accordingly, not every denial of a request for a continuance will violate the right to counsel of choice. See Baker, 432 F.3d at 1248 (citing Ungar v. Sarafite, 376 U.S. 575, 589-91, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964)). Thus, a defendant is entitled only to a fair or reasonable opportunity to select the attorney of their choice. Id. In determining whether the denial of a continuance violated a defendant‘s opportunity to choose counsel, we consider several factors including the length of the requested delay, whether alternative counsel is available and prepared for trial, the inconven
Here, the district court did not abuse its discretion in denying Johnson‘s last-minute motion for a continuance to retain new counsel. The delay Johnson requested was not insignificant, and would have inconvenienced the court, the witnesses, and the citizens called for jury duty. Furthermore, appointed counsel was present аnd prepared to proceed to trial. Accordingly, we affirm.
II
It is a Fourteenth Amendment violation to compel a criminal defendant to stand trial before a jury in identifiable prison garb. United States v. Graham, 643 F.3d 885, 895 (11th Cir.2011). If such a constitutional error has occurred, we review to determine whether that error is harmless beyond a reasonable doubt. Id. We have statеd that overwhelming evidence of a defendant‘s guilt renders the error occasioned by a defendant‘s appearance in prison clothes at trial harmless beyond a reasonable doubt. United States v. Harris, 703 F.2d 508, 512 (11th Cir.1983).
It is undisputed that the district court erred when it failed to briefly delay the trial so that Johnson might change into civilian clothing. Nevertheless, we hold that the evidence of Johnson‘s guilt presented at trial was overwhelming, and that the district court‘s error was therefore harmless beyond a reasonable doubt. Accordingly, we affirm.
III
We review a district court‘s rejection of a defendant‘s Rule 403 challenge for an abuse of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir.2003).
The decision whether to impose sanctions for discovery violations lies within the district court‘s discretion, and we review such rulings for an abuse of discretion. United States v. Yates, 733 F.3d 1059, 1063, 1065 (11th Cir.2013), cert. granted in part, --- U.S. ----, 134 S.Ct.
Viewing the evidence in the light most favоrable to admission, the district court did not abuse its discretion by admitting the 911 call and evidence regarding the shooting over Johnson‘s
IV
Under the cumulative error doctrine, an aggregation of nonreversible errors can result in the denial of a defendant‘s right to a fair trial, warranting reversal. United States v. King, 751 F.3d 1268, 1277 (11th Cir.2014). However, where there is no error or only a single error, there can be no cumulative errоr and reversal is not warranted. Id. at 1277-78. In addressing a claim of cumulative error, we examine the trial as a whole to determine whether the defendant was afforded a fair trial. United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir.2009).
The only error that Johnson has demonstrated is the district court‘s failure to provide him the opportunity to change into civilian clothing before standing trial. As discussed above, this error was harmless and the remaining trial errors alleged by Johnson lack merit. Accordingly, because Johnson has only demonstrated a single error, the cumulative error doctrine does not apply and we affirm.
V
We review constitutional challenges to a sentence raised before the district court de novo. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir.), cert. denied, --- U.S. ----, 134 S.Ct. 311, 187 L.Ed.2d 220 (2013). However, issues raised for the first timе on appeal are reviewed only for plain error. United States v. Day, 465 F.3d 1262, 1264 (11th Cir.2006). Under the plain error standard, the defendant must demonstrate four factors: (1) there was an error, (2) the error is plain, (3) the error affects substantial rights, and, if the foregoing three factors are met, (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).
An error is plain if it is clear from either the plain meaning of a statute or constitutional provision, or from a holding of the Supreme Court or this Court. United States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir.2011). An error affects substantial rights when it is prejudicial to the defendant, meaning the defendant must show that the error affected the outcome of the district court proceedings. Olano, 507 U.S. at 734, 113 S.Ct. at 1778. Finally, an error seriously affects the fairness, integrity, and public reputation of the judicial proceedings if failure to correct the error would result in a miscarriage of justice. Id. at 736, 113 S.Ct. at 1779.
In Shepard v. United States, 544 U.S. 13, 16, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005), the Supreme Court held that in determining whether a prior conviction qualifies as an ACCA predicate offense, sentencing courts may only consider a limited set of documents. Thе documents on which a court may rely under Shepard are the charging document, a written plea agreement, the transcript of the plea colloquy, any explicit factual finding by the trial judge to which the defendant consented, or some comparable judicial record of this information. Id. at 16, 26, 125 S.Ct. at 1257, 1263. In addition to Shepard documents, we have held that sentencing courts mаy rely on undisputed facts contained in a presentence investigation report (“PSI“). United States v. Ramirez-Flores, 743 F.3d 816, 820 (11th Cir.2014). We have also held that sentencing courts are limited to Shepard documents in determining whether prior felonies were committed on different occasions. Sneed, 600 F.3d at 1332-33.
Johnson argues for the first time on appeal that, after Descamps v. United States, 570 U.S. ----, 133 S.Ct. 2276, 2284-85, 186 L.Ed.2d 438 (2013), the sole purpose of an inquiry under Shepard documents is to discern the elements of the prior offense of which a defendant was convicted, and any “factual” inquiry pursuant to Shepard is limited to facts constituting the elements of the prior offense. Because the date and time of the prior offense are not elements, Johnson argues that Shepard documents cannot be used to prove them. We cannot conclude that the district court committed plain error in this regard. Descamps itself did not address how courts should determine whether prior felonies were сommitted on different occasions. Prior to Descamps, this court has consistently held that district courts may determine whether prior crimes were committed on separate dates, so long as they limit themselves to Shepard-approved documents, United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir.2013), and post-Descamps Weeks itself implicitly so held although it did not address the precise argument now raised by Johnson.
Again for the first time, Johnson argues in the alternative, even if use of Shepard documents is permissible as proof of date and time, the district court nevertheless erred in relying on the PSI‘s statement of facts indicating that at least three of the qualifying convictions occurred on different dates. Johnson cites as error the fact that the PSI itself relied on allegedly impermissible Shepard documents. Again, we cannot conclude that plain error has occurred. Our cases prior to Descamps consistently held that district courts could consider for ACCA enhancement purposes facts stated in the PSI to which a defendant did not object. Such facts were deemed admitted. Ramirez-Flores, 743 F.3d at 823 (“we have held that a sentencing court applying the modified categorical approach may consider undisputed facts contained in the PSI.“). Descamps did not address this issue. And, post-Descamps this Court held that a district court properly relied on unobjected-to facts, although not addressing the precise issue now raised by Johnson. Id. at 823-24.
In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the government may use the fact of a prior conviction to enhance a defendant‘s sentence without charging that prior conviction in the indictment or proving it to a jury beyond a reasonable doubt. United States v. Beckles, 565 F.3d 832, 846 (11th Cir.2009). Subsequently, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), the Supreme Court held that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Although the Court has expressеd doubts about its holding in Almendarez-Torres, it has declined to overrule that decision. Id.; see also Alleyne v. United States, 570 U.S. ----, 133 S.Ct. 2151, 2160 n. 1, 186 L.Ed.2d 314 (2013). We have consistently held that Almendarez-Torres remains binding law and that a district court may properly rely on a defendant‘s prior convictions to enhance his sentence. Beckles, 565 F.3d at 846; see also, e.g., United States v. King, 751 F.3d 1268, 1280 (11th Cir.2014). Because Almendarez-Torres remains good law, we reject Johnson‘s argument that a jury must find that he had the three predicate felonies.
A penal statute is void for vagueness if it is not sufficiently definite such that ordinary people cannot understand what conduct is prohibited and it encourages arbitrary and discriminatory enforcement. Skilling v. United States, 561 U.S. 358, 402-03, 130 S.Ct. 2896, 2927-28, 177 L.Ed.2d 619 (2010). The residual clause of ACCA provides that a crime is a violent felony if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Johnson‘s void-for-vagueness challenge is foreclosed by the fact that his predicate felonies all fall under the elements clause. Each of his predicate felonies was an armed robbery, which had as an element “the threatened use of force against the person of another.” United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir.2011).1 Johnson‘s remaining challenge likewise lacks merit, because he has failed to demonstrate that the district court plainly erred in relying on the undisputed facts оf the PSI to determine the dates of his prior offenses. Descamps itself did not address the propriety of reliance on undisputed facts in the PSI, or how courts should determine whether prior felonies were committed on different occasions.2 Accordingly, Johnson cannot demonstrate that any potential error committed by the district court was plain, and we affirm.
We review the reasonableness of a sentence under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). First, we ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines or failing to consider the
The district court must impose a sentence that is “sufficient, but not greater than necessary” to comply with the purposes of sentencing set forth in
Although we do not presume that a sentence falling within the guideline range is reasonable, we ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). A sentence imposed well below the statutory maximum penalty also indicates that the sentence is reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (holding that a within-guideline sentence was reasonable in part because it was well below the statutory maximum).
Here, Johnson‘s sentence is not procedurally unreasonablе because, as discussed above, the ACCA enhancement was properly applied in this case. Likewise, Johnson‘s sentence is not substantively unreasonable because the district court did not abuse its discretion in giving greater weight to Johnson‘s criminal history than to his mitigating circumstances. Furthermore, the sentence imposed was within the
AFFIRMED.
Notes
The Presentence Investigation Report lists Anthony Johnson‘s predicates as Florida convictions for robbery with a firearm or deadly weapon pursuant to