United States v. Paul James Taylor

IV. REVERSED and below is judgment to the District is REMANDED

this case judgment to enter instructions with

Court $273,294.00. in the amount of appellants America, STATES

UNITED

Plaintiff-Appellee, TAYLOR,

Paul James

Defendant-Appellant.

No. 90-7098. Appeals, States Court

Eleventh Circuit. appellants are determination that required question decision Court’s within to reach the attorneys' reasoning fees nothing entitled to reimbursement in the herein. defending John Doe’s suit. any way incurred them in at odds with this the Ninth Circuit is in revoking his sentencing re- sulting from two in convictions 1986for the possession with the intent to distribute and distribution of cocaine. He is currently incarcerated, serving 30-year prison sen- tence, for those appeal offenses. On he (1) complains that the district court did not have the to revoke since the sentence of had not commenced; (2) the court erred admit- ting hearsay testimony into evidence at the hearing revocation in violation of his sixth right amendment to confront and cross ex- witnesses; (3) amine the court abused its by denying discretion a motion for a contin- uance at the hearing; (4) revocation delay between the issuance of the war- hearing rant and the process. violated due We affirm.

BACKGROUND May 1981, In Taylor was convicted of possession of cocaine with intent to distrib- ute and was sentenced to years three prison plus a five-year special parole term. serving After eighteen pris- months of his sentence, Taylor on paroled on October parole 1982. His prison under the 1981 expired on June 1984 and he began serving five-year special parole term for the 1981 offense the next day, Expiration June 1984. of the term was scheduled for June 10, 1986, special parole 1989. On March term violator warrant was issued based on Madden, Soto, Mobile, Peter J. Madden & alleged possession and sale of cocaine. Ala., defendant-appellant. later, 19, 1986, Three months on June special parole was revoked. even- Moore, Richard W. Atty., Asst. U.S. Mo- tually pled guilty with the bile, Ala., plaintiff-appellee. intent to and the distribute sale of cocaine

in the United States District Court for the Southern District of Alabama on November given suspended 1986. He was placed tence and for five BIRCH, Before CLARK Circuit years.1 guilty Probation from the 1986 HENDERSON, Judges, and Senior plea begin completed was not to until he Judge. service of all sentences out conviction, including parole. He was PER CURIAM: custody released from to finish Taylor appeals Paul James special parole term from 1981 case on judgement of the May Expiration United States District was still sched- Court for the Southern District of Alabama uled for June suspended 1. The record does not state the terms of sentence. 1988, Taylor positive ings drug-related tested crimes. Alston’s tes- September timony Taylor’s

for cocaine use. On concerned search of that he discovery informed his officer had home resulted hospital suffering hearing from a all been self- cocaine. After the evidence the gunshot wound. He later inflicted told his district court revoked angry parole thirty years officer that he was shot tion and sentenced him to officer, According parole the girlfriend. prison.3 girlfriend Taylor did not tell about DISCUSSION they spoke first because he did not when The District Power To Revoke Court’s the other want his wife to know about Taylor’s Parole During regularly a scheduled woman. grant The district court’s officer, meeting with his after he solely or revoke derives from hospital, Taylor got out of the admitted Congress. v. 350 24, Affronti pistol. owning a .32 calibre On October 79, 83, 171, 174, 62, 100 L.Ed. 1988, special parole a term violator warrant authority The of the federal Taylor’s alleged pos- was issued based grant courts to or revoke is con drugs session and use of and unauthorized (West, tained in 18 3653. re U.S.C.A. § possession of a firearm. When he was 1987). limited, pealed authority That 28, 1988, arrested on October the marshals though, by the constitutional restraints of found crack cocaine in the kitchen of his separation powers. Affronti, pick-up home and in a truck owned 83, 173, atU.S. 76 S.Ct. at 100 L.Ed. at 66. Taylor. pis- The marshals never found the authority modify prisoner’s a sen owning, they tol he admitted however dis- begun serving tence after he has the sen covered numerous rounds of ammunition. branch, tence is reserved to the executive 20, 1989, January On after a full right grant parole as well as the hearing, parole term from the Id., 82, pardons. at 76 S.Ct. at 1981 conviction was revoked.2 L.Ed. at 66. The same is true of consecu 21,1989, February petition On for revo- arising tive sentences out of one trial. Id. probation imposed cation of the 1986 at at S.Ct. 100 L.Ed. at 66. alleging sentence was filed unauthorized “[Probationary power respect ceases with possession weapon of a possession to all composing single of the sentences day cocaine. The same the district court immediately upon cumulative sentence im signed a warrant and At detainer. prisonment any part of the cumulative point Taylor begun serving had not sentence.” 76 S.Ct. at probation sentence from the 1986 case. He L.Ed. at 67. was still the sentence Prior to the enactment of the Federal 1, 1990, February 1981 case. On the dis- Guidelines, Sentencing the courts were trict court held a revocation hear- sentencing, vested with much discretion in ing. government’s case was based on including grant testimony witnesses, revocation of of two John Lin- dell, guidelines, tion. The Taylor’s parole which took effect No- officer and James Al- ston, deputy vember limited much of the discre- United States Marshal. tionary power Much testimony hearsay. of Lindell’s district courts (West 1990). relating tencing. App. Besides to the court the 18 U.S.C.A. conversa- Taylor, Sentencing tion he had with Lindell testi- Here Federal also Guidelines are applicable fied he received information from unnamed criminal linking Taylor sources prior to numerous shoot- acts occurred to November challenging validity possession is not of that of a controlled substance as defined hearing. 841(a). by 21 U.S.C.A. § maximum allow- person able sentence for a convicted a second or prior 3. For cases out of acts committed third time of of a controlled sub- implementation Sentencing to the Guidelines, of the Federal years imprisonment. stance was 30 841(b)(1)(A) (West 21 U.S.C.A. § 1981) proscribed the allowable sentences for James, v. See United States consecutive sentences as one continuous Cir.1988). (11th posture, 162 n. 2 In that sentence. of review for standard revo- The Fifth Circuit Appeals Court of con- cation is abuse of discretion. See United cluded that the decision permits Affronti O’Quinn, F.2d 1359 States courts to a sentence if the defen- dant commits another crime to serv- disputed language ing of section 3653 the sentence. United States v.

provides probation may be revoked for Relying on the occurring probationary per acts “within the ambiguous language of section 3653 and (West, iod.”4 18 U.S.C.A. Re decision the Fifth and Elev- 1987). pealed court This and the Fifth enth approved Circuits have revocation of Appeals consistently probation Circuit Court of have for conduct occurring prior to interpreted section 3653 to allow a district commencement of service of the sentence. probation Ross, court to revoke a sentence for (5th United States v. 503 F.2d 940 sentencing prior Cir.1974); acts committed after but James, United States v. serving (11th the sentence. See United F.2d 160 policy “Sound James, (11th requires States v. 848 F.2d 160 Cir. that courts should be able to re- 1988); Ross, United States v. voke for a defendant’s offense commences; committed before the sentence an immediate return to activity criminal is language of section 3653 does not reprehensible more than one which occurs expressly provide for revocation Ross, aat later date.” 503 F.2d at 943. service of the sentence and while a previous Ross, sentence for another crime. the court a sentence of Af- by negative inference years imprisonment seems to indi three and three-year a fronti cate power. that a district court has such special parole term conspiring for to dis- reasoning The Court's Ross, marijuana. was tribute 503 F.2d at 941. Affronti separation powers. based on the suspended years court the three im- Af v. prisonment in favor of incarceration for fronti S.Ct. 100 L.Ed. 62 However four provided months. court also precludes decision the courts years Ross should serve five from modifying a sentence after service of after he custody. was released from Exe- begun. a term Specifically, Id. cution of the stayed sentence was for a Court held that a court cannot get con week to allow Ross to his affairs in secutive sentences once service of the first order. He was arrested after he returned sentence has commenced. Essentially charge Id. home on a state for Court, purposes, for modification treats pro- narcotics. The court then revoked his paragraphs 4. any third and fourth of 18 U.S.C.A. be arrested in district other than that in § 3653 read as follows: supervised, which he was last he shall be any probation period, At probation time within the returned to the district in which the warrant may issued, officer for cause arrest jurisdiction was unless over him is found, probationer wherever without war- provided as transferred above to the district any probation peri- rant. At od, time within the found, in which he is and in that case he shall probation period or within the maximum pending proceedings be detained further title, permitted by section 3651 of this such district. probationer court district in which the speedily possible proba- As after arrest the being supervised longer or if he is no under tioner shall be taken before the court for the supervision, the court for the district in which having jurisdiction district over him. There- supervision, may he was last under issue a upon may the court revoke the warrant for his arrest for violation of require imposed, him to serve the sentence occurring during probation period. sentence, and, any imposition lesser if of sen- may any Such warrant by be executed in district suspended, may impose any tence was officer or the United States might originally tence which have been im- marshal of the district in which the warrant (West, posed. Repealed 18 U.S.C.A. 3653 was issued or of probationer district in which the 1987). probationer is found. If the shall Wright our conclusion on or Ross imprisonment his and ordered bation at 942. the same. years. Id. the result would be three receiving pos pled guilty to James Affronti, Wright, as was case released sessing mail. The court stolen a sentence with the modification of dealt investigation. presentence pending already serving. the defendant was he was sentenced to five Two months later sentenced to consecutive sen- afterwards years probation. Soon indictment. tences out the same during the interim of his court learned F.2d at 1128. He was sen- Wright, 744 sentencing, James had com guilty plea and years imprisonment on Count tenced to five and there was mitted a state offense 2 he was sentenced to five On Count The district for his arrest. warrant out suspended imprisonment which was years and sentenced court revoked years supervised probation. The to five years prison. him to four “ 2 was ‘to run consecu- sentence on Count James, 160-61 Cir. ”1.’ as to Count tive to sentences 1988). paroled prison, and before com- While Taylor maintains that Ross James mencing on Count he committed service facts and there- distinguishable are on their to three a state offense and was sentenced applicable. points He out that fore not years imprisonment penitentia- in the state begun to serve Ross had not court, relying on ry. Id. The district suspended sentence was re- his before Wright’s probation as to Count 2. revoked voked, serving Taylor already was a while court, relying appellate Affronti, on parole term for his 1981 conviction. district court. Id. at 1131. reversed the hand, James, on the other started to serve the court his sentence of before to mean that a The court took Affronti aware that he had committed became modify consecutive sentences court cannot time of his conviction crime between the begun the first sen- once service has court, applying sentence. The while (citing v. tence. Id. Affronti its decision to revoke section based 171, 173, U.S. 76 S.Ct. sentence on a fraud on the court James' 62, 67). 100 L.Ed. district court was “[T]he Thus, theory. Taylor argues, is also James power, without once the defendant com- inapplicable. menced service of the first cumulative sen- However, serving Taylor begun had not tences, grant or revoke as to a probation term for the 1986 sentence. sentence, though it had consecutive even In sense his situation is similar to that yet The court noted commenced.” Id. James, giving the offense rise of Ross. only that a district court the revocation of James’ was pursuant 35 to to Fed.R.Crim.P. serving committed before he commenced and then sentence once service has started Taylor charged with the sentence. only days. within cocaine and of a possession of ambiguous language Wright in There is firearm a convicted felon before he be- probation. may have gan implies the 1986 sentence of the Fifth Circuit progeny to their facts limited Ross and its Taylor a Fifth case also cites or to “fraud on the court” scenarios. Id. argues he limits the decision. which Ross However, reading a close of 1130-1131.5 Wright, v. language that the relied on Wright reveals However, (5th Cir.1984). Taylor’s analysis by Taylor speculation the least is at about Wright holding Wright is flawed. may react in cases how the court somewhat actually holding reaffirms the in Ross. language Thus, similar to Ross. At the most it does not matter whether we base defendant, previously exception but un- apparent known to the [re- 5. The rationale for this court, ferring that would have altered a "fraud at known to the to Ross is in the nature of ] sentencing sentencing" concept, whereby decision. de- the court’s —before origi- (emphasis Wright, F.2d at fendant commences service of sentence nal) (citations omitted). district court learns a fact —the reality Taylor reaffirms the little doubt that is dicta. The court knew the terms of holding of Ross. and future He knew (see "supposed was not to have a weapon decisions note

If our circuit su- decided, then, illegal drugs correctly they and that pra) were further infractions of exception stand for a limited to the law would send him prison. back to [ifoss] application wording of the literal Hearsay Claim probation statute: where the defen- Taylor asserts the district court sentence, it dant receives in admitting erred into hearsay evidence illegal may be revoked because of an act testimony of the United States Probation committed to its commencement and Parole Officer. Both government only when the defendant has not com- Taylor agree that a revoca menced actual service of hearing analogous sentencing to a cumulatively imposed. hearing. judge A trial has broad discretion Wright, 744 F.2d at 1131. deciding appropriate criminal sent Thus, see, Wright as we can follows the Reme, ence.6 United States v. Like the rationale (11th Cir.1984), Affronti. denied, cert. bar, Wright case and unlike the case at 85 L.Ed.2d 850 involved modification of consecutive long As as the sentence is within arising out of the same indictment. tences limit, statutory appellate court will However, since decided in our James was not review the sentence. approvingly circuit and cites we process by court will review which a ambiguous language are not bound goes imposing district court about a sen purports which to limit Ross. tence. Id. at 1167. See United States Clements, was on for the 1981 of F.2d fense. The sentence of was for sentencing hearings in pro and the offense. He was not scheduled to hearings, Congress bation revocation begin service of the 1986 sentence until given the trial court wide latitude in the completed serving after he had the 1981 may information the court receive in reach dealing we are sentence. Unlike ing its hearsay decision.7 Admission of separate separate with crimes and sen probation hearings evidence in does not resulting separate tences trials. Af- process, long violate due as as it bears held courts cannot fronti Reme, reliability. some indicia of 738 F.2d cumulative sentence out of the hearsay at If admission evidence begun. same indictment once service has process, has violated due the defendant Only power the executive branch has the to showing the that the court bears burden modify such a sentence. v. Unit explicitly relied on the information. 79, 171, ed 350 U.S. 76 S.Ct. “(1) The defendant must show the (1955). Taylor L.Ed. 62 the materially challenged evidence is false or sentence for the 1981 conviction and had unreliable, (2) actually that it served as and yet begin serving to the sentence for a the basis for the sentence.” Id. Hence, separate 1986 the conviction. dis trict court had the to revoke the though Even some of the state 1986 sentence of by probation concerning ments officer by Taylor alleged crimes committed and foregoing, say Based on the we cannot may officer not reported that the district court its to the abused discretion evidence, there is no by revoking term. There is be as reliable as direct earlier, person convicted of an offense 6. As noted this discretion has been since conduct of by may limited the enactment of the Federal Sen- States receive which a court of the United (18 (West tencing U.S.C.A.App. Guidelines purpose imposing and consider for the 1990)). appropriate sentence.” 18 U.S.C.A. (West 1985). placed 7. "No limitation shall be on the informa- character, concerning background, and explicit that the district court re- in denying evidence erred a motion to dismiss the There lied on those statements. was suffi- hearing revocation since it was year held a concerning weap- cient direct evidence after the warrant and service of the detain- drug charges Taylor’s past on and Taylor acknowledges er. that revocation support judge’s criminal behavior to hearings prosecutions are not criminal un decision to revoke and sentence thus, der the sixth amendment and Taylor thirty years imprisonment.8 to See defendant constitutionally guaran not Reme, 1167; 738 F.2d at United States v. speedy teed a hearing. Gagnon v. Scar Clements, 183, 634 F.2d pelli, 93 S.Ct. Lastly, requirement there is no in a 1759-60, 36 L.Ed.2d 661-62 hearing prove beyond tion revocation a However, Supreme Court has held that that the reasonable doubt defendant com- process due protect liberty does inter alleged mitted the acts. that is re- “[A]ll probationer parolee. est of a Id. at quired reasonably is that the evidence sat- at S.Ct. 36 L.Ed.2d at 661. isfy judge pro- that the conduct of the Though the sixth amendment does good required bationer has not been as guarantee speedy hearing proba by probation.” the conditions of parolees, court, tioners or urges this Rice, States v. analogy, apply Therefore, speedy analysis trial we find that the dis- trict court hearings. Taylor neither violated revocation sixth asks us to right amendment of confrontation adopt speedy nor ex- balancing trial test the plicitly relied hearsay on the evidence. Supreme Court set out Barker v. Wingo, 407 U.S. 92 S.Ct. 33 L.Ed.2d 101 Request For A Continuance (1972).9 This involves a balance of three assigns also as error the de factors addition length to the nial of the district court for a continuance delay: “the delay, reason for the the defen once the court allowed the officer dant’s right, assertion of his prejudice testify to out-of-court statements. Be 530-33, to the defendant.” Id. at cause we find that there is no evidence that 2191-93, 33 L.Ed.2d at 116-118. Even if hearsay district court relied on the evi we adopt were to this criteria dence, Taylor suffered no harm when the hearings, revocation we find court denied the continuance. Further that defendant suffered no harm by the more, Taylor showing made no year delay one it deny did not granting a continuance “substantial fa opportunity the vigorously to contest the vorable evidence would be tendered [a] Williams, violation. See United States v. witness, that witness available [a] [was] (5th Cir.1977). Also, Taylor’s willing testify, to and that the denial of process argument due premised on the the materially prejudice continuance would hearsay allegations. Since we have al the Miller, defendant.” United States v. ready found that there showing was no 513 F.2d The dis judge that the explicitly relied on the hear trict court did not abuse its discretion in say process violations the due claim must denying the continuance. fail. Accordingly, judgement Due the Process of the dis- trict court is Taylor next claims that he was de process nied due the when district court AFFIRMED. government argues

8. The it recently adopted if were not for Seventh Circuit this test plea agreement Taylor the received in would have deciding probationer as a framework if a thirty years prison in instead of a sus- prompt hearing received a Scott, in United States v. pended probation. sentence and There is no (7th Cir.1988) (thirteen support clear-cut evidence in the record to this delay process). month found not to violate due argument, plea agreement but the is referred to government during the revocation hear- ing. tion). (Transcript R2-57-58 of Probation Revoca- cases, leading CLARK, Judge, dissenting in those the conduct to the rev- prior ocation of occurred to the part: start of the sentence that included the im- parts those of I concur in all of position of these holding opinion except the court’s majority provide any guidance cases do not on the jurisdiction to district court had before us. Neither nor issue Ross James sentence and to Taylor’s probation revoke involving dealt with circumstances the ov- thirty years. him a term of re-sentence to judicial erlap powers. of executive and In and re-sen- of the revocation At the time during the defendant was arrested custody in of the tencing, Taylor was grace period the the one-week district court supervi- Attorney and under General given put in had to affairs order pursu- of the U.S. Parole Commission sion being imprisoned.4 The defendant Tay- revocation of ant to the Commission’s Attorney had not surrendered to the thus parole term. The revocation special lor’s General, previ- and the defendant had not parole term had as its basis special charges. ously been convicted of other was the very criminal act which same Similarly, in the defendant was re- James revocation of of the district court’s basis pending comple- after leased conviction clear that the probation. The law is presentencing report.5 The defen- the Parole Commission district court and serving any dant was not then other sen- pun- jurisdiction concurrent cannot have granted dis- tence. Both Ross James reason is also parolee. an errant ish power to revoke trict courts Congress provided otherwise clear— discussed in the interstices between conviction and Supreme by the United States Attorney surrender to the General. Nei- v. United States.1 Court Affronti proposition ther case stands for the federal courts have the to intervene serving a five- In 1986 while November exercise of its in the executive branch’s was to ex- year special parole term which parole powers. Taylor was convicted pire on June by the selling cocaine and sentenced ineffectually majority valiantly but years probation to five district court attempts distinguish the Fifth Circuit’s expiration special commence on the Wright.6 decision in special parole term was parole term. The had Wright involved a defendant who been by the U.S. Parole Commission revoked count on two counts. The first sentenced time of arrest and the second imprisonment a term of the re- Taylor was released to serve probation. The terms count was a term of parole term outside mainder of his consecutively. While on to run were again Tay- prison. Erring late imprisonment, from the sentence of special parole lor’s term was revoked crime, a state and the defendant committed by the Parole January Commis- probation.7 revoked district court February while sion. On carefully differen- opinion Wright prison serving the balance of his was and probationary sentences tiated between term, court revoked the the district pa- imprisonment that lead to sentences of of five probation 1986 sentence November supervised by judi- are role. Probationers Taylor to a term of years and sentenced officers, and the cially appointed probation thirty years. probation arise powers impose to courts’ contrast, parol- legislation. solely from majority maintains that the cases The by the United States supervised are ees v. Ross2 United States Commission, agency of the exec- applicable, reasoning that Parole are v. James3 F.2d at 160-61. 5. 848 100 L.Ed. 62 1. 350 F.2d 940 2. Cir.1984). (5th F.2d 1127 F.2d 160 3. 848 Id. at 1128. 4. 503 F.2d at 942. branch, empowered grant

utive which is to and also to revoke the uncommenced parole persons or revoke to tion Here, sentenced to on a consecutive sentence.” prison. opinion Wright’s exactly The noted that we have the case in Wright, as the parole clearly subject same misdeed permit to revocation if was used to revoca- any during parole he committed crime tion of its term.8 quoted probation language from The from Wright Wright quoted by stat- ute, stated, majority is contrary. which then not to the period of This lan- “[t]he guage probation states probation, together “may any with be re- extension thereof, illegal voked because of an act shall not exceed five committed years,”9 prior to its commencement only when exception showed that the language to this defendant has not commenced actual created ser- Ross is not unlimited. The any vice of cumulatively sentence im- stated, Wright court “It is true that Ross posed.” The Wright court have, understood progeny despite and its express exception this as only applying wording probation upon statute “before any defendant commences service of relies, which excep- carved out an imposed.” tence Taylor’s proba- Because permitting sentencing court re- to tion was revoked begun had “ser- probation defendant, voke the of a even after imposed,” vice of sentence Wright, though yet begun he has not to serve his and the statute forbid district probationary sentence, when he commits an Affronti courts from revoking probation during the illegal act. in all of these deci- time when defendants are in the sions, custody of illegal act committed occurred the executive branch. prior to the commencement of service the defendant of sentence statutory language relevant states probationary the time the sentence was unambiguously probation may be re- opinion in Wright also voked only probation “within period.” imposed.”10 stated, “No decision of this circuit has held Supreme remarked, Court Affronti that it is within the discretion of a sentenc- judicial “Federal permit ing probation, court to revoke for an act springs solely legislative action. The prior committed probationary period, authority put a convict on for an act committed while a convicted term, an uncommenced after service of an person parole is on from another sentence begun, earlier term has has not been clear- before his consecutive probationary term ly given.” The same reasoning applies in indeed, commences. holding, Such a would where, here, a situation contrary be ruling to the Supreme been revoked before its term was com- Court in majority menced. The has failed to follow Affronti." requirement the usual that criminal stat- Wright then held that “overlap [between interpreted utes be strictly. judicial the executive and cer- branches] tainly occurs if the statute is provide facts of this case an excel- interpreted permit so as to pre- same example lent of the concrete harm that probation violation to serve as cause both overlap. occurs from such Appellant's pro- to revoke the prior on a explain bation officer did appellant 8. Id. at 1128-29. to revoke for a violation of a condi- tion that occurred before the term (repealed 1987). 9. 18 U.S.C. § 3651 commenced but while the defendant was on sentence.”). from a (footnote omitted). 10. 744 F.2d at 1130 13. 744 F.2d at 1131. (citation omitted). 11. Id. (emphasis original). 14. Id. 1130-31;

12. Id. at see Fryar, also United States v. (5th Cir.1990) ("To prevent 920 F.2d overlap 1987). (repealed 18 U.S.C. 3653 judicial between the and executive spheres power, Wright of held that when a court (citation sentence consecu- 16. 350 U.S. at 76 S.Ct. at 174 omit- sentence, ted). tive to another the court lacks appellant when terms of his May parole in released on subject to the terms appellant was probation, at time. parole, not that, Thus, warning appellant had no misbehave, parole and both his

should revoked.

probation would be

I reverse. would America,

UNITED STATES

Plaintiff-Appellee, MARTINEZ, Defendant-Appellant.

Jesus

No. 90-8743. Appeals,

United States Court

Eleventh Circuit. Kish, Federal Defender Stephen

Paul Atlanta, Ga., Inc., for defendant- Program, appellant. Atty., Mary Jane Whitley, D.

Joe Ga., Stewart, Atlanta, plaintiff-appellee. BIRCH, Before FAY and *, Senior District Judges, and HOFFMAN Judge.

* Hoffman, sitting by designation. U.S. Dis- Virginia, Honorable Walter E. Senior Judge for the Eastern District of trict

Case Details

Case Name: United States v. Paul James Taylor

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 20, 1991

Citation: 931 F.2d 842

Docket Number: 19-10474

Court Abbreviation: 11th Cir.