United States v. Corey Timmons

602 F. App'x 735
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 4, 2015
Docket14-10643
StatusUnpublished

This text of 602 F. App'x 735 (United States v. Corey Timmons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Corey Timmons, 602 F. App'x 735 (11th Cir. 2015).

Opinion

PER CURIAM:

Corey Timmons appeals his conviction for one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.§ 1962(d).

I.

Timmons argues that, because he did not have the requisite mens rea, there was not a sufficient .factual basis for his guilty plea in violation of Federal Rule of Criminal Procedure 11(b)(3). He also argues that the district court did not adequately explain the charges against him, as is required by Federal Rule of Criminal Procedure 11(b)(1)(G). Upon review of the record and consideration of the parties’ briefs, we affirm.

Timmons pleaded guilty to conspiring to participate in the conduct of an enterprise through a pattern of racketeering activity, which in his case involved the purchase and sale of previously stolen goods. At the plea hearing, Timmons, his attorney, and the district court had a number of exchanges about what was included in the plea and the extent to which Timmons would be held responsible for acts of the enterprise which occurred before he became involved. Timmons also crosséd out several phrases in the government’s account of the facts which indicated that he knew the electronics were stolen. Still, after hearing several different explanations of the elements of the offense and the scope of his culpability, Timmons said that he did not have any more questions and entered his plea of guilty. He was sentenced to 35 months’ imprisonment and a period of supervised release, and he was directed to pay $68,496.03 in restitution. Timmons never attempted to withdraw his ■ guilty plea.

II.

Timmons first claims that there was not a sufficient factual basis for his guilty plea under Rule 11(b)(3). When a defendant does not object to a plea agreement or move to withdraw his plea in the district court, we review a Rule 11 challenge for plain error. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir.), cert. denied, — U.S. -, 135 S.Ct. 310, 190 L.Ed.2d 225 (Oct. 6, 2014). The defendant bears the burden of establishing plain error, and must show “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1251 (quotation omitted). If the defendant satisfies all three conditions, we may exercise our discretion to reverse only where the error “seriously affects the fairness, integrity or public reputation of judicial .proceedings.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.2005) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993)).

First, to show error when reviewing a claim of insufficient factual basis for a guilty plea, we evaluate “whether the trial court was presented with evidence from which it could reasonably find that the defendant was guilty.” United States v. Frye, 402 F.3d 1123, 1128 (11th Cir.2005) (per curiam) (quotation omitted). We need not find uncontroverted evidence of guilt, and we may affirm even where a reasonable factfinder could have ruled in favor of the defendant after a trial. United States v. Owen, 858 F.2d 1514, 1516-17 (11th Cir.1988) (per curiam).

Timmons pleaded guilty to a RICO conspiracy, under which the government must prove that the defendant objectively mani *738 fested, through words or actions, an agreement to participate in the underlying conspiracy. United States v. Starrett, 55 F.3d 1525, 1543 (11th Cir.1995) (per curiam). This agreement can be (1) an agreement on an overall objective, or (2) an agreement to personally commit two predicate acts participating in the single objective conspiracy. Id. at 1544. “There is rarely any direct evidence of an agreement to join a criminal conspiracy, so that a defendant’s assent can be inferred from acts furthering the conspiracy’s purpose.” United States v. Gianni, 678 F.2d 956, 959 (11th Cir.1982). The government can prove an agreement on overall objective through circumstantial evidence showing a defendant must necessarily have known that others were participating in the same racketeering enterprise. Starrett, 55 F.3d at 1544. The government need not prove that the defendant knew his co-conspirators or was aware of all the details of the conspiracy. Id.

The district court did not plainly err when it found “ample evidence” that Timmons agreed to participate in the underlying conspiracy to sell stolen property. Owen, 858 F.2d at 1516. Throughout sentencing, Timmons repeatedly claimed that he did not know the property was stolen and was merely a businessman. Yet many facts in the record cast considerable doubt on his protestations. For example, in November 2011, Timmons orchestrated the sale of a shipment of computers and televisions. The circumstances of the sale were highly suspicious. Timmons met the purchaser in a storage unit parking lot and received nearly fifty thousand dollars in cash, which Timmons immediately distributed to three of his co-conspirators. The woman who made the electronics purchase later called Timmons, and in that recorded call he told her not to talk to law enforcement officers about the sale. Enterprise leader Jason Spellen told Timmons in a recorded call that he shipped items that were “on fire” out of the country, and that he never stored inventory at his house to avoid police detection. Once Spellen was under investigation, Timmons offered to stop an incoming shipment of merchandise to Spellen, who agreed because he couldn’t take “any more damage.” All of this together is ample evidence to support the finding that Timmons knowingly participated in the conspiracy to sell stolen goods.

Even if Timmons were able to show that the district court committed error in accepting his plea, he still would not Succeed in showing that the error affected his substantial rights. To show that an error affected substantial rights in the guilty plea context, a defendant “must show a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). This is a “daunting obstacle” that is very difficult to satisfy, and if the record shows that “it is as likely that the error had no effect on his decision, he cannot prevail.” United States v. Davila, 749 F.3d 982

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Related

United States v. Depace
120 F.3d 233 (Eleventh Circuit, 1997)
United States v. Wiggins
131 F.3d 1440 (Eleventh Circuit, 1997)
United States v. Jason M. Moriarty
429 F.3d 1012 (Eleventh Circuit, 2005)
United States v. Bonilla
579 F.3d 1233 (Eleventh Circuit, 2009)
United States v. Brown
586 F.3d 1342 (Eleventh Circuit, 2009)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Dominguez Benitez
542 U.S. 74 (Supreme Court, 2004)
United States v. Thomas A. Owen and Jacqueline L. Owen
858 F.2d 1514 (Eleventh Circuit, 1988)
United States v. Anthony Davila
749 F.3d 982 (Eleventh Circuit, 2014)
United States v. Nelida Rodriguez
751 F.3d 1244 (Eleventh Circuit, 2014)
United States v. Starrett
55 F.3d 1525 (Eleventh Circuit, 1995)

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Bluebook (online)
602 F. App'x 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-corey-timmons-ca11-2015.