United States v. James Mikel Lee Fowler

213 F. App'x 788
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 4, 2007
Docket06-10794
StatusUnpublished

This text of 213 F. App'x 788 (United States v. James Mikel Lee Fowler) 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. James Mikel Lee Fowler, 213 F. App'x 788 (11th Cir. 2007).

Opinion

PER CURIAM:

James Mikel Lee Fowler appeals his 66-month sentence after being convicted of six counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of wire fraud, in violation of 18 U.S.C. § 1343. A jury found Fowler guilty of defrauding one victim out of $1.3 million by convincing him to invest in a nonexistent company dedicated to developing sports memorabilia. He challenges his sentence on three grounds: (1) he contends that the district court abused its discretion in refusing to accept his guilty plea thereby denying him a sentence reduction for accepting responsibility; (2) he contends that the district court erred when it applied a sophisticated means sentence enhancement; and (3) he contends that his sentence was unreasonable. After considering all three arguments, we affirm the sentence imposed by the district court.

We first consider the district court’s rejection of Fowler’s guilty plea and the resulting denial of a 2-level sentence reduction for accepting responsibility. Fowler contends that had the district court allowed him to plead guilty, he would have been entitled to a reduced sentence. We find that even if the district court had accepted Fowler’s plea, his refusal to characterize his conduct as fraudulent during his Rule 11 colloquy would have foreclosed the sentence reduction, making any error harmless.

We review a trial judge’s decision to reject a guilty plea for an abuse of discretion. Un ited States v. Gomez-Gomez, 822 F.2d 1008, 1010 (11th Cir.1987). We also note that a “defendant has no absolute right under the United States Constitution or under Fed.R.Crim.P. 11 to have his guilty plea accepted by the court.” Id. *790 (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971)). Before a court can accept a guilty plea, it must personally address the defendant in open court. Fed.R.Crim.P. 11(b)(1). During this address, the court must ensure that (1) the plea is voluntary and (2) that a factual basis for the plea exists. Id. 11(b)(2), (3).

During the Rule 11 colloquy, Fowler admitted there was “some merit” to the charges against him but characterized the situation as a “business venture that went wrong.” After the government presented the facts it intended to prove at trial, Fowler conceded that what the government said was “true and correct” but then attempted to “explain” some of the facts asserted against him. He argued that many of the false statements he allegedly made were, in fact, true. He claimed that his “business partners” in this venture were legitimate. He argued that the money he spent was his agreed upon “salary” and that the government mischaracterized him as “running wild” and “frivolously tak[ing] the money and go[ing] out and spending] it.” He “spent the monies that were paid to [him] as a result of [his] payroll and the agreement that was arrived at between [the victim] and [him]self.” He also claimed that, “before any monies were ever spent,” the victim “was advised fully as to what they were being spent for.” Finally, Fowler stated: “And if you’re asking me whether it’s true that ... there are misrepresentations, [the victim] had every opportunity during the five-year period of time that we did business together to come and stay with me in Orlando to review the books, to go over all the information, to meet the people, to come to the venues that we were a part of.”

Based on these statements, the district court concluded that Fowler did not believe he was guilty of fraud and refused to accept his guilty plea. Fowler said that he was “guilty of some of the factors of the crimes” but that the government’s case mischaracterized him. He refused to fully admit to the allegations. He characterized the entire situation as a business deal gone bad and suggested that the onus was on the victim to prevent any fraud. Fowler’s statements indicate that he thought he was entitled to the money he took as part of his salary for managing a legitimate business venture.

Thus, we will not disturb the district court’s decision to reject Fowler’s guilty plea because any resulting error was harmless. Fowler did not fully accept responsibility for his conduct and would not have been entitled to a sentence reduction even if his plea had been accepted. United States v. Brown, 47 F.3d 198, 203 (7th Cir.1995) (denying the defendants’s request for a reduction based on acceptance of responsibility where defendants refused to admit to engaging in a scheme to defraud); United States v. Speck, 992 F.2d 860, 863 (8th Cir.1993) (“A defendant who maintains innocence, blames others, and expresses regret only for the consequences of criminal conduct does not accept responsibility within the meaning of § 3E1.1.”). The comments to the Guidelines make clear that a defendant’s acceptance of responsibility “may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.” U.S.S.G. § 3El.l(a) cmt. n. 3 (2001). To determine whether Fowler adequately accepted responsibility, we base our review on his pretrial statements and conduct. Id. cmt. n. 2. Based on his statements set out above, it is clear that he did not fully accept responsibility at the Rule 11 colloquy, and he would not have been entitled to a sen *791 tence reduction regardless of whether the district court accepted his guilty plea. Therefore, there was no error.

Second, we consider whether the two-level enhancement for use of a sophisticated means to effectuate the fraud was warranted. We review the district court’s findings of fact for clear error, but we review de novo its application of the sentencing Guidelines to those facts. United States v. Humber, 255 F.3d 1308, 1311 (11th Cir.2001). A two-level enhancement is appropriate under U.S.S.G. § 2B1.1(b)(8) (2001) if “the offense otherwise involved sophisticated means.” Comment six defines “sophisticated means” as “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” Id. cmt. n. 6. Sophisticated means necessitates “more than minimal planning.” Humber, 255 F.3d at 1314 (stating that minimal planning and sophisticated means enhancements are mutually exclusive).

Fowler contends that because he did not attempt to hide the funds, the sophisticated means enhancement does not apply. But the note to the rule makes clear that the enhancement is proper when the execution,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Scott A. Winingear
422 F.3d 1241 (Eleventh Circuit, 2005)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Felix Esteban Thomas
446 F.3d 1348 (Eleventh Circuit, 2006)
Santobello v. New York
404 U.S. 257 (Supreme Court, 1971)
United States v. Michael Allen Speck
992 F.2d 860 (Eighth Circuit, 1993)
United States v. Steven E. Brown and Gary L. Knox
47 F.3d 198 (Seventh Circuit, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
213 F. App'x 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-mikel-lee-fowler-ca11-2007.