UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENNETH EUGENE THOMAS, JR., Defendant-Appellant.
No. 19-11175
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(March 30, 2020)
Before NEWSOM, GRANT, and TJOFLAT, Circuit Judges.
[DO NOT PUBLISH] Non-Argument Calendar. D.C. Docket No. 1:18-cr-20683-DMM-6. Appeal from the United States District Court for the Southern District of Florida.
I.
The facts relevant to Thomas‘s guilty pleas in this case are as follows. Thomas came to the attention of law enforcement as part of an investigation into a
Law enforcement saw Thomas leave a house associated with the ring, and pulled Thomas‘s vehicle over. A narcotics K-9 that was brought to the stop alerted to the vehiclе. While Thomas initially denied that there were any drugs in the vehicle, he later acknowledged that he had drugs in the steering wheel. Law enforcement eventually recovered approximately 39.9 grams of crack cocaine from the column of the steering wheel. A few months later, Thomas was named as a co-defendant in a multi-defendant indictment against the distribution ring. He entered a plea of not guilty.
Thomas later filed a motion to suppress the recovered drugs, arguing that the officers unlawfully stopped his vehicle. A magistrate judge held an evidentiary hearing regarding the motion before issuing a Report and Recommendation that the motion be denied. As part of that recommendation, the magistrate fоund: (1) that Thomas was a participant on over 100 phone calls to wiretapped phones that were connected to the conspiracy and used coded language that reasonably appeared to refer to drug transactions; (2) that a particular member of the conspiracy, Johnny
Thomas filed objections to the Report аnd Recommendation, arguing against (1) the finding that he conducted hand-to-hand transactions in front of the Quick Way Mart; (2) the finding that the K-9 “walked around the vehicle immediately after the vehicle stop“; (3) the finding that he was not a credible witness; and (4) the conclusion that he was involved in illegal drug transactions. With admittedly odd timing, he then notified the court that he would change his plеa to guilty.
At the plea hearing, the magistrate inquired into Thomas‘s competency to proceed. Thomas indicated that he was suffering from mental health issues, including schizophrenia. Thomas also stated that he was taking drugs that helped manage his mental health issues. The magistrate ultimately concluded that Thomas was able to understand what the judge told him and fоund him competent to make a guilty plea.
The magistrate then engaged in an extensive colloquy with Thomas regarding his guilty plea. As part of that discussion, Thomas agreed that he visited alleged coconspirator Martin on the date he was spotted by the police with an
Thomas proceeded to sentencing. The cоurt began by addressing a motion to withdraw that Thomas‘s counsel had filed the night before. Thomas‘s counsel indicated that he had filed the motion because Thomas had said that he was ineffective, but that Thomas now did not want him to withdraw as counsel. Thomas verbally affirmed to the court that he wanted to keep his counsel. The court denied the motion as moot.
Thе district court then reviewed the presentence investigation report (PSR). The PSR had calculated Thomas‘s offense level as 34 after adding two levels for obstruction at his suppression hearing and eight levels for his designation as a career offender. Thomas was also found to be in criminal history category VI.1 That meant Thomas‘s advisory Guidelines range wаs 262 months to 327 months of imprisonment. The district court sustained an objection to the obstruction enhancement, explaining that it would not count toward the Guidelines range but
II.
Thomas argues that the court plainly erred by accepting his guilty plea. He first asserts that the fаctual basis for the plea was insufficient. “Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
After reviewing the district court‘s Rule 11 colloquy, we conclude that the district court certainly did not plainly err by finding a sufficient factual basis under Rule 11. “Sections 841(a)(1) and 846 make it unlawful for a person tо conspire to ‘manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.‘” United States v. Civil, 758 F. App‘x 874, 876 (11th Cir. 2019) (citation omitted). During his change of plea hearing, Thomas admitted that he had agreed with Martin to possess cocaine with the intent to distribute it to other individuals. The court did not plainly err in finding that admission sufficient to establish a factual basis.
Thomas also argues that the district court erred in finding him competent to enter a plea despite his mental illness. The “due process clause prohibits the trial
Here there was no indication that Thomas was incompetent because of his medication or that he was unable to communicate with defense counsel. The court‘s opinion based on its conversations with Thomas was that Thomas understood what was happening, and Thomas‘s counsel informed the court that Thomas understood their conversations and that he did not believe that Thomas was incompetent. Thomas explained that he was taking drugs to treat his mental illness. The court therefore reasonably concluded that Thomas wаs competent (and certainly did not plainly err in its finding). The district court‘s questioning on this point also established that there was no Rule 11 violation, as Thomas understood the nature of the charges against him and the potential consequences and entered a
III.
Because he was properly sentenced under the career-offender provision, Thomas was not entitled to a minor-role reduction. See id. Even if he had not been sentenced under that provision, the district court would not have clearly erred in denying the reduction. To determine whether a minor-role adjustment is appropriate, “the court must compare the defendant‘s role in the offense with the relevant conduct attributed to him in calculating his base offense level” and “the
IV.
Generally, we lack jurisdiction to review a district court‘s refusal to impose a downward departure, unless it appears that the district court erroneously believed that it lacked the authority to do so. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). Where, as here, nothing in the record suggests otherwise, we assume that the district court understood that it had authority to depart downward. Id. Accordingly, we do not have jurisdiction to review Thomas‘s argument on that issue.
V.
We review the reasonableness of a sentence under an abuse-of-discretion standard. United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc). The party challenging the sentence bears the burden to show that the
In reviewing a sеntence for reasonableness, we first consider whether the district court committed any significant procedural error, and then consider whether the sentence was substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is procedurally unreasonable if the district court commits an error such as improperly calculating the Guidelines range, failing to consider the § 3553(a) factors, sentencing based on erroneous facts, or failing to explain the sentence given. Id. We have explained that a district court is not required to state on the record that it has explicitly considered or discussed each § 3553(a) factor; the court‘s acknowledgment that it considered the § 3553(a) factors and the defendant‘s arguments is sufficient. United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009).
The district court must impose a sentence that is not greater than necessary to satisfy the purposes listed in
In evaluating the substantive reasonableness of a sentence, we consider the totality of the circumstances and whether the sentence achieves the sentencing purposes stated in § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). The weight given to any specific § 3553(a) factor is committed to the sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). When the ultimate sentence is reasonable considering all the circumstances, we have stated that we will not second guess the weight the district court placed on a particular factor or factors. United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010).
The district court need not specifically address every mitigating factor raised by the defendant for the sentence tо be substantively reasonable. Id. at 873. However, a district court abuses its discretion when it (1) does not consider significant, relevant factors, (2) gives an improper or irrelevant factor significant weight, or (3) unreasonably balances proper factors such that there is a clear error of judgment. Irey, 612 F.3d at 1189. The district court may consider a defendant‘s uncharged оr acquitted conduct. United States v. Watts, 519 U.S. 148, 154 (1997). Further, a claim based on unwarranted sentencing disparities assumes that the
Here, thе district court did not abuse its discretion in sentencing Thomas to 168 months’ imprisonment because his total sentence was substantively and procedurally reasonable. The district court properly considered the
We review a claim of ineffective assistance of counsel de novo. Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008). To show ineffective assistance, a defendant must establish that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant. Id. at 1297.
Thomas asserts that he should have received a three-level reduction for acceptance of responsibility and suggests that his attorney is responsible for failing to pursue that reduction in a timely fashion. He also argues that his attorney gave him poor advice on the consequences of pleading guilty. “Except in the rare instance when the record is sufficiently developed, we will not address claims for ineffective assistance of counsel on direct appeal.” United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005) (citing United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000)). “The preferred means for deciding a claim of ineffective assistance of counsel is through a
AFFIRMED.