UNITED STATES of America, Plaintiff-Appellee, v. Jacques MADDOX, Defendant-Appellant.
No. 14-15064
United States Court of Appeals, Eleventh Circuit.
Sept. 30, 2015.
1215
Finally, we do not take a position at this time regarding whether the Students in this case were “employees” for purposes of the FLSA.
IV.
With these factors in mind, we vacate the district court‘s entry of summary judgment for Defendants and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Joseph Robert Johnson, Law Offices of Joseph R. Johnson, PA, Ocoee, FL, for Defendant-Appellant.
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Jacques Maddox appeals his 78-month sentence, which was imposed after a jury convictеd him of aiding and abetting an attempted armed robbery, in violation of
I. Background
A. Underlying Offense Conduct
On September 2, 2013, Defendant and accomplice Joe Clinton attempted to rob a Walgreens drugstore. After casing the store, Clinton forced manager William Feeney into the manager‘s office, while Defendant served as a look-out. In the office, Clinton pointed a gun at Feeney‘s head and ordered him to open the safe. Feeney told Clinton that he was unable to do so because he did not have the key. Clinton grabbed Feeney‘s keys, but was unable to open the safe. Clinton threatened to shoоt Feeney if he did not get the money. After Clinton racked the gun several times in an effort to get it to work, Feeney pulled out a box cutter to defend himself against what appeared to be an imminent attack. Clinton then pistol-whipped Feeney, causing several cuts on Feeney‘s head. Clinton and Defendant then fled the store, with Clinton pointing the gun at another employee and at the store customers as he ran out.
B. Trial Testimony of Defendant and Clinton
At trial, both Defendant and Clinton testified. As relevant to this appeal, Clinton testified that he and Defendant had talked about robbing the Walgreens store three or four times prior to the actual day of the robbery. Clinton noted that they did not really have a plan, but both decided to bring guns because they “never [knew] what might happen.” On the night of the robbery, he and Defendant met up earlier and discussed “a few things,” including that Defendant would “watch [Clinton‘s] back” during the robbery. Clinton planned to bring a gun with him and showed the gun to Defendant. Defendant handled the gun and polished it with his t-shirt. Defendant also carried his own gun, a Glock .45. When the two men arrived at the Walgreens, they paced around the store for a few minutes, going in and out of the store to avoid suspicion. When he saw store manager William Feeney coming out of the office, Clinton forced Feeney back into the office. Prior to Clinton going into the office, Defendant told him to “go, go ahead and go,” which Clinton took to mean that he should go ahead and commit the robbery. While Clinton was in the office, he could see, through the office window, that Defendant was acting as a look-out to make sure no one else tried to come into the office. After Clinton assaulted Feeney, he ran out of the office. Then he and Defendant ran out of the store and drove away in the car that Clinton had driven to the scene. Clinton further admitted that, when arrested, he had lied to the police several times about the robbery of the Walgreens, including initially telling the police that another individual, not Defendant, had robbed the Walgreens with him.
On cross-examination, Clinton acknowledged that he was testifying pursuant to a plea agreement and that, as part of the agreement, the Government had agreed to drop the charges or reduce his sentence on the two robberies, which carried a cumulative mandatory-minimum sentence of 32 years’ imprisonment. He agreed that he would do whatever was in his best interest to reduce his sentence. Clinton further acknowledged that he had told the police that he was schizophrenic and bipolar, had memory problems, and used drugs that affected his memory.
Defendant testified in his own defense. He stated that he arrived at the Walgreens separately from Clinton, believing that he was to meet Clinton at the Walgreens before going to a club together. After going into the store once to ask an employee about some medication, Defendant continued to go in and out of the store: once to use the bathroom and other times because he did not like waiting outside. Defendant denied having any knowledge that Clinton planned to rob the store or that he was carrying a gun. (Defendant also denied that he wаs carrying a gun.) According to Defendant, as he was coming out of the bathroom, Clinton ran past him, at which point Defendant saw that Clinton was carrying a gun. Defendant became scared and ran out of the store with Clinton, but did not get into the car with him.
On cross-examination, Defendant acknowledged that his testimony conflicted with earlier testimony from a store employee about how many times he had been in and out of the bathroom.1 As to footage
As noted, the jury convicted Defendant of aiding and abetting an attempted armed robbery, but acquitted him of aiding and abetting the use of a firearm in furtherance of a crime of violence.
C. Presentence Investigation Report and Sentencing Hearing
After the jury‘s verdict, the probation office prepared Defendant‘s Presentence Investigation Report (“PSR“). The PSR calculated a base offense level of 20, pursuant to U.S.S.G. § 2B3.1(a). Because a firearm was brandished during the commission of the offense, the PSR applied a five-level enhancement under § 2B3.1(b)(2)(C). The PSR also applied a separate two-level enhancement, pursuant to § 2B3.1(b)(3)(A), because bodily injury was caused to a victim of the offense, yielding a total offense level of 27. Defendant had three criminal history points, which yielded a criminal history category of II. Based on a total offense level of 27 and his criminal history category of II, Defendant‘s guideline range was 78 to 97 months’ imprisonment.
Prior to and at his sentencing hearing, Defendant objected to any enhancement for brandishing a weapon or for causing bodily injury to a victim, both of which were based on Clinton‘s conduct. Defendant argued that the brandishing enhancement could be applied only if the Government had proved by a preponderance of the evidence that Defendant had advance knowledge that Clinton possessed a gun at the time of the robbery. And Defendant argued that the Government had failed to meet that burden because its evidence rested entirely on Clinton‘s testimony, which Defendant deemed not credible. He further contended that enhancing his sentence based on acquitted conduct violated his Sixth Amendment right to trial. Defendant similarly argued that the bodily injury enhancement was improperly applied to him because Feeney‘s injuries were inflicted by Clinton‘s use of his gun and, once again, Dеfendant argued that he had no advance knowledge that Clinton would have a gun.
The district court overruled both objections. The court determined that, for the above enhancements to apply, the Government had to prove by a preponderance of the evidence that the relevant conduct at issue was reasonably foreseeable. Looking at the totality of the circumstances of the robbery, along with the surveillance video and Clinton‘s and Defendant‘s testimony, the court concluded that the Governmеnt had proven by a preponderance of the evidence that it was reasonably foreseeable to Defendant that Clinton would brandish a gun during the robbery. As a logical extension of that conclusion, it was also reasonably foreseeable that Clinton might injure someone during the course of the robbery, particularly given the fact that he was carrying a gun. After considering the
II. Discussion
On appeal, Defendant argues that the district court should not have factored Clintоn‘s brandishing of a firearm and causing bodily injury into the Guidelines’ calculation for Defendant because Defen
A. Standard of Review
We review de novo the district court‘s interpretation and application of the Sentencing Guidelines. United States v. Ford, 784 F.3d 1386, 1395 (11th Cir. 2015). We review any constitutional challenges to the sentence under the same standard. United States v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006).
We review the district court‘s factual findings for clear error. Ford, 784 F.3d at 1396. We will therefore not disturb the district court‘s finding of fact unless we have “a definite and firm conviction that a mistake has been made.” Id. Among the factual findings a district court may make is whether a preponderance of the evidence supports the application of a sentence enhancement. See United States v. Victor, 719 F.3d 1288, 1290 (11th Cir. 2013) (reviewing as a finding of fact the district court‘s impositiоn of a sentence enhancement, and noting that the prosecution must establish applicability of enhancement by a preponderance of the evidence). Where the district court has made a determination as to a witness‘s credibility, we afford that determination substantial deference. United States v. Clay, 483 F.3d 739, 744 (11th Cir. 2007). We will accept a factfinder‘s credibility determination unless the proffered evidence is “contrary to the laws of nature” or is “so inconsistent or improbable on its face that no reasonable factfinder could аccept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). The fact that a witness is of dubious character does not, by itself, render his testimony incredible. United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009).
B. Application of Enhancements Notwithstanding Defendant‘s Acquittal on the Charge of Aiding and Abetting Another in the Violation of § 924(c)
Although the jury convicted Defendant of the count charging him with aiding and abetting the robbery of the Walgreens store, it acquitted him of the count charging him with aiding and abetting his accomplice in the latter‘s use and carrying of a firearm that was brandished during the robbery, in violation of
It is well settled, however, that the sentencing court may consider any fact for which a defendant has been acquitted as long as the Government proves, by a preponderance of the evidence, the occurrence of that conduct and as long as the enhancement results in a sentence below the maximum statutоry penalty authorized by the jury‘s verdict. See United States v. Faust, 456 F.3d 1342, 1347, 1348 (11th Cir. 2006); United States v. Poyato, 454 F.3d 1295, 1299 (11th Cir. 2006). As the Supreme Court has explained, “sentencing enhancements [under the Guidelines] do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction.” United States v. Watts, 519 U.S. 148, 154, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997).
Thus, the merits of Defendant‘s argument depends on whether the Government proved by a preponderance of the evidence that he engaged in conduct that would warrant the enhancements applied by the sentencing court. We agree with the district court that the Government met its burden.
In calculating a defendant‘s total offense level, a district court must consider all relevant conduct attributable to the defendant. The Guidelines, which explain the term “relevant conduct” in § 1B1.3, offer three ways in which relevant conduct may arise and be attributable to a defendant for purposes of applying an enhancement. First, relevant conduct includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the dеfendant.” U.S.S.G. § 1B1.3(a)(1)(A). Second, relevant conduct also includes the acts and omissions taken by a defendant “in concert with others” that were in furtherance of the jointly undertaken criminal activity and that were “reasonably foreseeable” to the defendant.
The district court concluded that the second trigger for relevant conduct, found in § 1B1.3(a)(1)(B), had been satisfied here. So the question becomes whether the Government proved that Defendant and Clinton had engaged in “jointly undertaken criminal activity” and whether Clinton had engaged in acts “in furtherance of that activity” that were reasonably foreseeable to Defendant. Clearly, Defendant and Clinton engaged together in criminal activity: they attempted to rob the Walgreens store, with Clinton doing the actual robbing and with Defendant acting as the lоok-out. Indeed, Defendant was convicted of the substantive attempted robbery count, and Clinton pled guilty. Second, it is undisputed that Clinton brandished a firearm while attempting to rob the Walgreens store manager and that the manager suffered bodily injury when Clinton pistol-whipped him. There is no question that these acts, which are the basis for the enhancements imposed by the district court, were done in furtherance of the jointly undertaken attempted robbery of the store.
The only question left then is whether the Government proved by a pre-
C. Whether the Guidelines Prohibit Application of the Above Enhancements
For the first time on appeal, Defendant argues that the Sentencing Guidelines prohibit any consideration of Clinton‘s brandishing of a firearm and causing bodily injury because U.S.S.G. § 3D1.2(d) prohibits the grouping of Defendant‘s attempted robbery count of cоnviction and therefore § 1B1.3(a)(2), which expands the applicability of relevant conduct in offenses that are groupable, does not apply.
We generally review de novo the district court‘s interpretation and ap-
Defendant‘s argument has no merit under either a plain error or de novo standard of review. This is so because, as explained above, § 1B1.3(a)(1)(B) clearly permitted the district court to consider the reasonably foreseeable acts of Clinton, and it was reasonably foreseeable that Clinton would brandish the gun that Defendant knew him to be carrying and that a victim might thereafter suffer a bodily injury. This is also so because § 1B1.3(a)(2), on which Defendant relies, is not remotely applicable in this case.
As to the inapplicability of § 1B1.3(a)(2),4 this subsection applies only to the type of offense that would be grouped under § 3D1.2(d) were there to be multiplе counts of conviction. Because a robbery offense is clearly not the type of offense that would be grouped,5 this subsection does not even make it out of the starting gate for purposes of analyzing the relevant conduct in this case. But even if it did apply, it would expand, not contract, the possible relevant conduct to include reasonably foreseeable acts that were “part of the same course of conduct or common scheme or plan as the offense of conviction.”
Seсond, the fact that § 1B1.3(a)(2) does not apply to the present offense of conviction does not mean that § 1B1.3(a)(1)(B), which clearly permits inclusion of the conduct at issue as relevant conduct, is thereby neutered. Indeed, § 1B1.3(a)(2) cannot even be triggered unless there are first acts that would fit within either § 1B1.3(a)(1)(A) or (B). Further, the fact that § 1B1.3(a)(2) will not apply to a particular count of conviction does not mean that other subsections of the relevant conduct provision cannot be given effect. As noted, § 1B1.3(a) expands the pоtential relevant conduct for groupable offenses. It does not contract use of relevant conduct for other type of offenses. Were that the case, relevant conduct would be an infrequent occurrence, given the specificity of the fact pattern that can give rise to § 1B1.3(a)(2). See United States v. Williams, 431 F.3d 767, 772-73 (11th Cir. 2005) (rejecting relevant conduct analysis undertaken by district court pursuant to § 1B1.3(a)(2) because offense did not re-
Indeed, the Guidelines make clear that more than one subsection of § 1B1.3 may apply to the same offense. See U.S.S.G. § 1B1.3, comment. (illus.(a)(1)) (stating that “[i]n certain cases, a defendant may be accountablе for particular conduct under more than one subsection of this guideline.“); id. § 1B1.3, comment. (illus.(b)(1)) (reiterating that “a defendant may be accountable for particular conduct under more than one subsection” and using as an example the fact that a bank robber who drove the getaway car could be accountable under § 1B1.3(a)(1)(A) for the money taken during the robbery because he aided and abetting the taking of the money (which was the specific objective of the conspiracy), and also be accountable for injury to the teller under subsection (a)(1)(B) because such conduct was reasonably foreseeable given the nature of the offense). See also United States v. Jones, 32 F.3d 1512, 1515, 1520 (11th Cir. 1994) (holding that enhancements based on Jones‘s accomplices’ reckless behavior, including brandishing a firearm, was relevant conduct under § 1B1.3(a)(1)(B) in sentence for aiding and abetting robbery).
In short, the fact that multiple provisions of the relevant conduct section may be potentially applicable in a given case does not mean that all provisions must apply in order fоr relevant conduct to be recognized. We therefore conclude that the district properly considered as relevant conduct the brandishing of a firearm by Defendant‘s accomplice and the injury suffered by a victim at the hand of that accomplice. This conclusion means that the court did not plainly err.
III. Conclusion
For the reasons stated above, Defendant‘s sentence is AFFIRMED.
HULL, ROSENBAUM, and JULIE CARNES
Circuit Judges