United States v. Antonio U. Akel

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 11, 2019
• Docket: 17-14707
• Status: Unpublished

Opinion

Case: 17-14707 Date Filed: 09/11/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14707 Non-Argument Calendar ________________________

D.C. Docket No. 3:07-cr-00136-LC-EMT-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO U. AKEL,

Defendant-Appellant.

________________________

Appeals from the United States District Court for the Northern District of Florida ________________________

(September 11, 2019)

Before WILSON, EDMONDSON, and HULL, Circuit Judges. Case: 17-14707 Date Filed: 09/11/2019 Page: 2 of 11

PER CURIAM:

Antonio Akel, a federal prisoner proceeding pro se, 1 appeals the district

court’s resentencing order and the district court’s denial of several motions related

to Akel’s resentencing and post-conviction proceedings. No reversible error has

been shown; we affirm. 2

In 2008, Akel was convicted by a jury of conspiracy to distribute drugs in

violation of 21 U.S.C. §§ 841(a)(1), 846 (Count 1); possession of a controlled

substance with intent to distribute in violation of 21 U.S.C. § 841(b)(1)(D) (Count

2); and being a felon in possession of a firearm in violation of 18 U.S.C. §§

922(g)(1), 924(a)(2), (e) (Count 7). The district court sentenced Akel to a term of

480 months’ imprisonment on each count, to run concurrently. Akel’s convictions

and total sentence were affirmed on direct appeal. See United States v. Akel, 337

F. App’x 843 (11th Cir. 2009) (unpublished).

In 2011, Akel filed a 28 U.S.C. § 2255 motion to vacate. The district court

denied the motion, and we denied Akel’s motion for a certificate of appealability

(“COA”). In July 2017 -- on remand from the Supreme Court -- we vacated the

1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Akel’s motion to certify questions to the United States Supreme Court is DENIED. 2 Case: 17-14707 Date Filed: 09/11/2019 Page: 3 of 11

district court’s denial of Akel’s section 2255 motion and remanded “for the district

court to reconsider the sentence on Count 7 in light of Mathis [v. United States,

136 S. Ct. 2243 (2016)].”

On remand, the district court determined that Akel no longer qualified as an

armed career offender after Mathis. The district court thus resentenced Akel

(without the career offender enhancement) to 120 months’ imprisonment on Count

7.

The district court also recognized and corrected a jurisdictional error in

Akel’s sentence on Count 2. The district court explained that the presentence

investigation report (“PSI”) stated incorrectly that Akel had been convicted “as

charged” in Count 2 of the superseding indictment of possession with intent to

distribute both cocaine and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(B)(ii)

and 841(b)(1)(D). The jury found, however, that the offense charged in Count 2

involved only marijuana and no cocaine. Akel’s sentence on Count 2 was thus

subject to a statutory maximum sentence of 60 months.

The district court entered an amended judgment sentencing Akel to 480

months’ imprisonment on Count 1, 60 months’ imprisonment on Count 2, and 120

months’ imprisonment on Count 7, to be served concurrently. The district court

denied the remainder of Akel’s section 2255 motion.

3 Case: 17-14707 Date Filed: 09/11/2019 Page: 4 of 11

I. Resentencing Issues

On appeal, Akel contends that the district court erred in failing to vacate his

total sentence and to resentence him on all counts. Akel also appeals the district

court’s denial of Akel’s pro se motions (1) “to amend in light of the ‘new facts’

unveiled by the district court” in the resentencing order and (2) to void the

resentencing order as premature.

We first reject Akel’s argument that the district court should have

resentenced Akel on all counts of conviction. We remanded this case to the district

court solely for the district court to consider Akel’s sentence on Count 7 in the

light of Mathis. When -- as in this case -- “the appellate court issues a limited

mandate . . . the trial court is restricted in the range of issues it may consider on

remand.” See United States v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). On

remand, however, the district court also recognized that Akel had identified a

jurisdictional error in his sentence on Count 2. Because lack of jurisdiction may be

raised at any time, the district court had authority to correct Akel’s sentence on

Count 2 -- even though that issue fell outside the scope of our limited remand. See

United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998). But given

4 Case: 17-14707 Date Filed: 09/11/2019 Page: 5 of 11

the procedural posture of this case, the district court committed no error in

declining to also reconsider Akel’s sentence on Count 1.

Nor did the district court err in denying Akel’s motion to amend the

resentencing order in the light of “new facts,” in which Akel sought resentencing

on all counts. In his motion, Akel argued that the error contained in the PSI also

affected the base offense level underlying Akel’s sentence on Count 1. In

calculating the drug quantity for which Akel was accountable, the PSI included --

mistakenly -- the quantity of cocaine charged in Count 2 despite the jury’s finding

that no cocaine was involved in the offense. As a result, the PSI concluded that

Akel was accountable for a total converted drug weight of 1,594.85 kilograms of

marijuana: without the cocaine alleged in Count 2, the total converted drug weight

would have been 1,396.19 kilograms. Because Akel would have been assigned a

base offense level of 32 using either drug quantity, the error in the PSI had no

impact on Akel’s guidelines sentence for Count 1. See U.S.S.G. § 2D1.1(c)(4)

(assigning a base offense level of 32 to drug offenses involving at least 1000

kilograms but less than 3000 kilograms of marijuana).

The district court also denied correctly Akel’s motion to void the

resentencing order as premature. On remand and before resentencing, the district

5 Case: 17-14707 Date Filed: 09/11/2019 Page: 6 of 11

court ordered the parties to “brief the applicability of Mathis to Defendant’s

sentence on Count Seven.” The district court’s order contained this language:

Accordingly, it is ORDERED: 1 Within TWENTY-ONE (21) DAYS from the date of this order, the Government shall file a supplemental brief addressing the applicability of Mathis to Defendant’s sentence on Count Seven, as set forth herein.

2 Defendant may file a reply within TWENTY-ONE (21) DAYS from the date of the Government’s response.

The government filed its supplemental brief in accordance with the district

court’s order. Akel filed his supplemental brief on the same day that the

government filed its brief. Having heard from both sides (briefing from both

parties), the district court committed no error then in proceeding to rule on the

Mathis issue and to enter its resentencing order. Akel was not required to use all

the time he was allowed to file a brief. And nothing in the district court’s order

suggested Akel could or permitted Akel to file more than one brief. That Akel

might have misunderstood the district court’s express order about supplemental

briefing did not render the district court’s judgment premature, once the court had

heard from both sides. The sentencing order’s timing did not actually clash with

the earlier briefing order’s terms. We see no reversible error. 6 Case: 17-14707 Date Filed: 09/11/2019 Page: 7 of 11

Akel later -- after the sentencing order had issued -- submitted a second brief

in “reply” to the government’s supplemental Mathis brief. Akel’s second brief

presented no new arguments: each of the arguments had either been raised in

Akel’s first brief or already been addressed by the district court’s resentencing

order. Thus, any error that might have occurred in the timing of the supplemental

briefing and the district court’s resentencing order would have been harmless.

II. Recusal Issues

Akel also appeals the district court’s orders (1) denying Akel’s pro se

motion to recuse the district court judge and (2) denying Akel’s motion for

reconsideration of that order.

We review for abuse of discretion the district court’s rulings on a

defendant’s motions for recusal and for reconsideration. See United States v.

Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (motion for recusal); Wilchombe v.

TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (motion for

reconsideration). We will affirm a judge’s refusal to recuse unless “the

impropriety is clear and one which would be recognized by all objective,

reasonable persons.” Bailey, 175 F.3d at 968.

7 Case: 17-14707 Date Filed: 09/11/2019 Page: 8 of 11

A district court judge “shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned” or “[w]here he has a personal bias

or prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1). “Bias sufficient to

disqualify a judge under section 455(a) and section 455(b)(1) must stem from

extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias and

prejudice that it unfairly prejudices one of the parties.” Bailey, 175 F.3d at 968

(quotations omitted). Rulings adverse to a party generally do not constitute

pervasive bias. Liteky v. United States, 510 U.S. 540, 555 (1994).

Akel first contends that the district court judge should have recused himself

because the judge purportedly berated members of the jury for finding Akel not

guilty on some charges. Akel first raised this argument in his October 2013 motion

to recuse. We rejected the argument on appeal, concluding that Akel’s

unsupported allegations -- based on double hearsay -- were insufficient to mandate

recusal. See United States v. Akel, 610 F. App’x 875 (11th Cir. 2015)

(unpublished). Akel offers no new admissible evidence to support his claim. This

argument is thus barred by the law-of-the-case doctrine. See Schiavo ex rel.

Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005) (“Under the law of the

case doctrine, the resolution of an issue decided at one stage of a case is binding at

later stages of the same case.”).

8 Case: 17-14707 Date Filed: 09/11/2019 Page: 9 of 11

Akel also contends that recusal was warranted based on (1) Akel’s criticism

of the district court judge; (2) Akel’s requests that the Department of Justice

investigate the district court; and (3) the district court judge’s issuance of several

rulings adverse to Akel. We disagree.

We are extremely slow to allow recusal to be triggered by what the party

seeking recusal has said or done. That approach -- looking much at the movant’s

own acts -- gives the moving party too much potential control over recusal.

Besides, we expect federal judges to have thick skins, anyway. Cf. Ungar v.

Sarafite, 376 U.S. 575, 584 (1964) (concluding no recusal was warranted based on

a party’s “contemptuous remarks” and personal criticism of the presiding judge:

“[w]e cannot assume that judges are so irascible and sensitive that they cannot

fairly and impartially deal with resistance to their authority or with highly charged

arguments about the soundness of their decision.”).

Akel has failed to demonstrate either bias stemming from extrajudicial

sources or that the district court judge’s orders showed such pervasive bias that he

was unfairly prejudiced. See Liteky, 510 U.S. at 555. Nor has Akel demonstrated

a clear impropriety that “would be recognized by all objective, reasonable

persons.” See Bailey, 175 F.3d at 968. We affirm the district court’s denial of

9 Case: 17-14707 Date Filed: 09/11/2019 Page: 10 of 11

Akel’s motion to recuse and the denial of Akel’s motion seeking reconsideration of

that order.

III. Remaining Issues

Akel contends that the district court erred in denying his motion to amend --

pursuant to Fed. R. Civ. P. 15(a) and (c) -- his January 2011 section 2255 motion.3

In his motion to amend, Akel sought to allege additional facts and argument in

support of his ineffective-assistance-of-counsel claims.

“We review a district court’s denial of a request for leave to amend a § 2255

motion for abuse of discretion.” Farris v. United States, 333 F.3d 1211, 1214 (11th

Cir. 2003).

The district court committed no abuse of discretion in denying Akel’s

motion to amend: the motion was filed after the district court entered judgment

denying Akel’s section 2255 motion. Rule 15 does not allow for post-judgment

amendment of pleadings in this case. See Fed. R. Civ. P. 15; Jacobs v. Tempur-

Pedic Int’l, Inc., 626 F.3d 1327, 1344-45 (11th Cir. 2010) (“Rule 15(a), by its plain

3 To the extent Akel seeks to challenge the denial of claims raised in his section 2255, those claims are outside the scope of this appeal. Neither this Court nor the district court has granted Akel a COA on these issues. 10 Case: 17-14707 Date Filed: 09/11/2019 Page: 11 of 11

language, governs amendment of pleadings before judgment is entered; it has no

application after judgment is entered.”). Because there was no pending section

2255 motion in the district court, Akel’s “motion to amend” could correctly be

construed instead as an unauthorized second or successive section 2255 motion.

See Hubbard v. Campbell, 379 F.3d 1245, 1246-47 (11th Cir. 2004) (concluding

that the district court lacked subject-matter jurisdiction to consider petitioner’s

motion to amend his 28 U.S.C. § 2254 petition -- filed after final judgment had

been entered against him on the original petition -- explaining that the motion was

really a successive habeas application).

We also reject Akel’s argument that the district court failed to comply with

Danley v. Allen, 480 F.3d 1090, 1091 (11th Cir. 2007). The district court’s

explanations in the pertinent orders were sufficient to allow for meaningful

appellate review.

AFFIRMED.