United States v. Eileen Smith

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 14, 2021
• Docket: 20-10428
• Status: Unpublished

Opinion

USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10428 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-00190-SPC-MRM-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EILEEN SMITH,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 14, 2021)

Before JILL PRYOR, BRANCH and LUCK, Circuit Judges.

PER CURIAM:

Eileen Smith pled guilty to conspiracy to distribute and possession with

intent to distribute cocaine base, heroin, and fentanyl, and she was sentenced to USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 2 of 14

168 months’ imprisonment. On appeal, Smith challenges her conviction and

sentence. As to her conviction, Smith argues that she should be permitted to

withdraw her plea because it was not knowingly and voluntarily entered; Smith

contends that she did not understand the sentencing consequences of her plea when

she entered it. As to her sentence, Smith argues that it is procedurally and

substantively unreasonable because the district court did not consider the 18 U.S.C.

§ 3553(a) factors and imposed upon her an excessive punishment given her limited

participation in the conspiracy and her background.

We reject Smith’s challenges. Smith’s plea was knowing and voluntary

even though she was not expressly informed by the district court that her co-

conspirators’ conduct might influence her sentence. And her sentence is

procedurally and substantively reasonable because the record demonstrates that the

district court considered the § 3553(a) factors and imposed upon Smith a sentence

within the bounds of its discretion. We therefore affirm.

I. BACKGROUND

Smith pled guilty to one count of conspiracy to distribute and possession

with intent to distribute cocaine base, fentanyl, and heroin in violation of 21 U.S.C.

§§ 841(b)(1)(B), 846. Her conviction came after a grand jury indicted Smith and

nine co-conspirators for their participation in a large drug organization in the

Suncoast Estates area of North Fort Meyers, Florida.

2 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 3 of 14

Smith participated in the conspiracy for at least 48 days. During that time,

Smith conspired with Tony Wilson, Jr., the organization’s leader, and others, to

distribute and possess with intent to distribute controlled substances. On numerous

occasions, Smith delivered controlled substances to, and sold those substances

from, the organization’s hub, which was referred to by Smith’s co-conspirators as

the “big house.” On one occasion, Smith was present at the big house when

members of Wilson’s organization, equipped with firearms, brawled with members

of a rival drug distribution organization.

Smith was also present when authorities executed a search warrant at the big

house and seized over 330 grams of cocaine base and over 65 grams of a heroin

and fentanyl mixture, which was to be distributed by Smith and her co-

conspirators. A few weeks after the seizure, during a traffic stop, Smith was found

in possession of cocaine base that she intended to distribute on behalf of the

organization. Two days after the traffic stop, an individual Smith suspected of

being a confidential informant arrived at a house in Suncoast Estates that was used

by the organization to distribute controlled substances. Smith and at least one

other individual confronted the suspected confidential informant then struck her

repeatedly, including on the head. As the suspected confidential informant fled,

Smith accused her of assisting authorities and threatened her with death as

retribution for that assistance.

3 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 4 of 14

After Smith was apprehended and indicted, she waived her right to have her

plea directly heard by the district court and proceeded to a plea colloquy with a

magistrate judge. The magistrate judge explained to Smith that he would inform

her of the consequences of entering a guilty plea and ask her questions to

determine whether her decision was knowing and voluntary.

Among other things, the magistrate judge informed Smith that: the penalty

for her offense included a “mandatory minimum term of imprisonment of at least

five years up to forty years,” the United States Sentencing Guidelines applied to

her case, the district court would determine her sentence, and the district court

would calculate the guidelines range. Doc. 437 at 16–18. 1 The magistrate judge

also informed Smith that the guidelines range was only advisory, the district court

could impose “any sentence up to the maximum allowed by law,” and Smith would

remain bound by her plea even if her sentence exceeded “any estimated sentence

that [her] attorney or anyone else ha[d] given [her]” and was “higher than [she

expected].” Id. at 18–19. Smith confirmed that she understood the information

presented to her by the magistrate judge and that she had discussed the sentencing

guidelines with her counsel and “how they might apply.” Id. at 17. The magistrate

judge issued a report and recommendation that included his factual findings that

1 “Doc.” numbers refer to the district court’s docket entries.

4 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 5 of 14

Smith’s guilty plea was knowing and voluntary and recommended that the district

court accept Smith’s plea, which the district court did.

The case proceeded to sentencing. At sentencing, the district court found

that Smith’s offense involved 1.53 kilograms of crack cocaine and 960 grams of

heroin. Based on this drug quantity, Smith’s base offense level was 32. She

received a two-level enhancement because she was present at the big house when

her co-conspirators were armed in furtherance of the conspiracy and another two-

level enhancement because she made credible threats of violence to the suspected

confidential informant based on her belief that the individual was acting as an

informant. See U.S.S.G. § 2D1.1(b)(1), (2). She received a three-level reduction

of her offense level for acceptance of responsibility. See id. § 3E1.1(a), (b). Based

on Smith’s total offense level of 33 and her criminal history category of I, her

guidelines range was 135 to 168 months, the calculation of which is unchallenged

on appeal.

Smith sought a sentence below the guidelines range. She argued that the

mandatory minimum term of imprisonment, five years, would be an appropriate

sentence because of her difficult upbringing: her parents were incarcerated when

she was a minor, she was placed in foster care, was abused by her stepfather, and

developed substance abuse problems. She also pointed out that she did not

actually possess a weapon, participated in the conspiracy for only 48 days,

5 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 6 of 14

cooperated with authorities, and was influenced by her romantic relationship with

the organization’s leader.

The district court denied Smith’s request for a sentence below the guidelines

range and sentenced her to a 168-month term of imprisonment. 2 The district court

considered § 3553(a) and based the sentence on a variety of factors, including: the

nature of the conspiracy and the extent of Smith’s participation in it, her family

history and background, her motive, her relationship to the organization’s leader,

her presence during the altercation involving firearms, her knowledge of the

conspiracy’s ends, and the threats she made to the suspected confidential

informant.

This is Smith’s appeal.

II. STANDARD OF REVIEW

The parties disagree on what standard of review applies when a defendant

challenges her plea as involuntary for the first time on appeal. Compare

Appellant’s Br. at 7–8 (citing United States v. Frye, 402 F.3d 1123, 1126–27 (11th

Cir. 2005)) with Appellee’s Br. at 18 (citing United States v. Rodriguez, 751 F.3d

1244, 1251 (11th Cir. 2014)). We need not resolve that disagreement in this case

2 The court ruled that Smith was to receive 12 months’ credit based on time she had served in prison on a related state battery charge.

6 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 7 of 14

because Smith’s argument that her plea was involuntary fails under any standard of

review.

We review for an abuse of discretion the procedural and substantive

reasonableness of a sentence. Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Cabezas-Montano, 949 F.3d 567, 610 (11th Cir. 2020).

III. DISCUSSION

Smith argues that her guilty plea was not knowing and voluntary, and is

therefore invalid, because she was unaware that her co-conspirators’ conduct could

influence the length of her sentence. She also argues that the sentence imposed by

the district court is procedurally and substantively unreasonable. We discuss

Smith’s challenge to her conviction before turning to her sentencing challenge.

A guilty plea “cannot support a judgment of guilt unless it was voluntary in

a constitutional sense.” Frye, 402 F.3d at 1127 (internal quotation marks omitted).

“A plea is voluntary in a constitutional sense if the defendant receives real notice

of the charge against [her] and understands the nature of the constitutional

protections [she] is waiving.” Id. The district court must establish that (1) the

guilty plea is free from coercion, (2) the defendant understands the nature of the

charges, and (3) the defendant knows and understands the consequences of her

guilty plea. Id.

7 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 8 of 14

Smith argues that her plea did not satisfy the third requirement because she

“did not receive real notice of the true consequences of entering a guilty plea to the

charged crime.” Appellant’s Br. at 15. Smith did not understand and consent to

the consequences of her plea, she contends, because “the [district] court never

indicated to [her] that she could be sentenced based on the conduct of co-

conspirators,” and the court “in fact relied extensively on co-conspirator conduct”

at sentencing when it increased Smith’s sentence based on her co-conspirator’s use

of a firearm and imposed the maximum sentence under the guidelines. Id.

We reject this argument. The magistrate judge explained to Smith that

before imposing a sentence the district court would calculate her guidelines range,

and Smith attested that her counsel “explained to [her] the various factors the

[district court could] consider in determining a guidelines range.” Doc. 437 at 18.

She was also aware that the range was “only advisory” and that the district court

could impose a sentence “more severe” than the range’s ceiling. Id. Smith does

not argue that the guidelines range was erroneously calculated or that the district

court legally erred by relying on co-conspirator conduct in calculating that range.

Nor does she argue that it was unlawful for the district court to consider the nature

of the conspiracy in weighing the § 3553(a) factors in determining her sentence.

In effect, then, Smith’s challenge to her conviction amounts to an argument

that her plea was involuntary because she was not informed, in advance of her

8 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 9 of 14

plea, which sentencing enhancements would influence the guidelines calculation or

how the district court would exercise its discretion in determining her sentence.

This argument is foreclosed by settled law. See United States v. Bozza, 132 F.3d

659, 661–62 (11th Cir. 1998) (holding that a district court has no obligation to

inform a defendant that a specific sentencing enhancement may be applied so long

as the defendant had notice of the possible enhancement); United States v. Pease,

240 F.3d 938, 941 & n.2. (11th Cir. 2001) (rejecting defendant’s argument that his

plea was “involuntary” because he “did not understand how severe the sentence

under the plea agreement might be”); see also Fed. R. Crim P. 11 advisory

committee’s note to 1989 amendment (explaining that district courts are not

required to “specify which guidelines will be important or which grounds for

departure might prove to be significant” because it is “impracticable, if not

impossible, to know which guidelines will be relevant prior to the formulation of a

presentence report and resolution of disputed facts”). We are therefore

unpersuaded that Smith’s plea was involuntary in the constitutional sense and we

thus affirm her conviction. 3

3 Citing our decision in United States v. Garcia-Sandobal, 703 F.3d 1278, 1283 (11th Cir. 2013), the government contends that Smith waived the argument that her plea was invalid “because [she] did not object to the report and recommendation that found her guilty plea was knowing and voluntary.” Appellee’s Br. at 21. We need not consider the limits of Garcia- Sandobal’s reach because Smith’s argument that her plea is invalid is meritless.

9 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 10 of 14

Smith also argues that her sentence is both procedurally and substantively

unreasonable. As the party challenging the sentence, she bears the burden of

showing it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010).

First, Smith argues that her sentence is procedurally unreasonable. A

sentence is procedurally unreasonable if the court fails to correctly calculate the

guidelines range, treats the guidelines as mandatory, fails to consider the § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails to adequately

explain the chosen sentence. United States v. Gonzalez, 550 F.3d 1319, 1323–24

(11th Cir. 2008) (citing Gall, 552 U.S. at 51).4 The district court “does not need to

discuss or state each factor explicitly.” Id. at 1324. “An acknowledgement the

district court has considered the defendant’s arguments and the § 3553(a) factors

[suffices].” Id.

Smith contends that her sentence was procedurally unreasonable because the

district court failed to consider the sentencing factors set forth in § 3553(a), instead

4 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, protect the public from the defendant’s future criminal conduct, and effectively provide the defendant with educational or vocational training, medical care, or other correctional treatment. Id. § 3553(a)(2). The court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

10 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 11 of 14

fashioning a sentence based on her co-conspirators’ conduct. That contention is

belied by the record. The district court expressly stated that it “consider[ed]” the

§ 3553(a) factors. Doc. 619 at 65. And it based the sentence on the “nature and

circumstances of the offense,” the “seriousness” of the offense, the need to

“promote respect for the law,” the need to “provide just punishment,” and the

“need to avoid unwarranted sentencing disparities.” 18 U.S.C. § 3553(a)(1)–(2),

(6); see Doc. 619 at 59–63 (basing the sentence on an equitable comparison of

Smith’s sentence to that of her co-conspirators and Smith’s motive, relationship to

the conspiracy’s leader, contribution to the conspiracy’s violent nature, and

apparent lack of remorse). It also considered Smith’s mitigating arguments. See

Doc. 619 at 59–63 (acknowledging Smith’s substance abuse problems, her difficult

childhood, and the length of her participation in the conspiracy). We therefore

disagree with Smith that the district court “considered none of the 3553(a) factors”

and thus reject her argument that the sentence was procedurally unreasonable.

Appellant’s Br. at 16.5

5 We also reject Smith’s related argument that her sentence was procedurally unreasonable because the district court’s analysis was influenced by the conduct of her co- conspirators. Appellant’s Br. at 19. No authority supports the proposition that a district court may not consider a co-conspirator’s conduct when weighing the § 3553(a) factors. We thus cannot say the district court erred by considering the nature of the conspiracy that Smith participated in, given the district court’s obligation to consider the “nature,” “circumstances,” and “seriousness” of the offense, which in this case was conspiracy to distribute and possession with intent to distribute controlled substances. 18 U.S.C. § 3553(a)(1)–(2).

11 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 12 of 14

Second, Smith argues that her sentence is substantively unreasonable. When

reviewing a sentence for substantive reasonableness, we examine the totality of the

circumstances, including “whether the statutory factors in § 3553(a) support the

sentence in question.” Gonzalez, 550 F.3d at 1324. “We will not second guess the

weight (or lack thereof)[] that [a district court] accorded to a given factor . . . as

long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (alterations adopted) (internal quotation marks omitted). We may vacate a

sentence only if we “are left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (internal quotation marks omitted). We may not set aside a sentence

“merely because we would have decided that another one is more appropriate.” Id.

at 1191.

Smith argues her sentence of 168 months’ imprisonment, followed by five

years of supervision, is substantively unreasonable because the sentence does not

“fit the crime” given that Smith participated in the conspiracy for only 48 days.

Appellant’s Br. at 21 (quoting Irey, 612 F.3d at 1206). She contends that the

district court, instead, should have granted her motion for a sentence reduction and

12 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 13 of 14

imposed a sentence well below her guidelines range. We cannot say that the

district court abused its discretion.

In arriving at the sentence, the district court balanced the fact that Smith

“participated in the offense for . . . 48 days” against a multitude of other factors,

including her close relationship with the conspiracy’s leader, involvement in

threatening individuals whom she suspected of endangering the criminal

organization, presence at the episode where a rival drug dealer was threatened with

automatic firearms, and knowledge of the “phenomenal” amount of drugs being

distributed by the enterprise. Doc. 619 at 62–63. The district court also considered

whether the sentence was fair relative to the sentences imposed upon Smith’s co-

conspirators and other related defendants. Id. at 59–61 (considering the extent to

which Smith and her co-conspirators participated in the conspiracy, their different

criminal histories, the assistance they provided the government, and their

motivations).

The 168-month (14-year) sentence imposed by the district court was within

the guidelines range and well below the statutory maximum of 40 years. See

Gonazalez, 550 F.3d at 1324 (“We ordinarily expect a sentence within the

[g]uidelines range to be reasonable . . . .”). Given the facts discussed by the district

court at sentencing—particularly Smith’s participation in a group assault on, and

the violent threats she made to, a suspected confidential informant—we cannot say

13 USCA11 Case: 20-10428 Date Filed: 04/14/2021 Page: 14 of 14

with a definite and firm conviction that the district court’s sentence was

unreasonable because Smith participated in the conspiracy for only 48 days. See

Gall, 552 U.S. at 51. Regardless of whether we would have imposed the same

sentence, we must therefore reject Smith’s argument that the district court abused

its discretion in determining her sentence.

AFFIRMED.