United States v. Jeffery Lewis

302 F. App'x 860
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 3, 2008
Docket07-15622
StatusUnpublished
Cited by1 cases

This text of 302 F. App'x 860 (United States v. Jeffery Lewis) 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. Jeffery Lewis, 302 F. App'x 860 (11th Cir. 2008).

Opinion

PER CURIAM:

Jeffrey L. Lewis appeals his 180-month sentence imposed for distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Lewis contends that the district court erroneously failed to consider his minimal conduct and apply a two-level minor role adjustment pursuant to U.S.S.G. § 3B1.2(b). We AFFIRM the sentence of the district court.

I. BACKGROUND

On 8 January 2005, Lewis arranged the purchase of crack cocaine by two confidential informants. R3 at 30. Lewis then drove with the confidential informants to another location where he acted as the middleman for a second purchase of crack cocaine. Id. at 30-31. The total amount of crack cocaine involved was 52.12 grams. Id. at 31.

Lewis was indicted for one count of distribution of 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), which carried a statutory minimum of ten years to life imprisonment'. Rl-1, 2. The government agreed to let Lewis plead guilty to a lesser included offense of distribution of an unspecified quantity of cocaine base, which subjected him to a significantly reduced sentence of not more than twenty years imprisonment with no minimum mandatory imprisonment. Rl-37; R3 at 20. Although there would be no drug quantity threshold for penalty enhancing purposes, Lewis acknowledged in the written plea agreement that he knowingly distributed 52.12 grams of cocaine base and that this total drag quantity would be used for sentencing purposes. Rl-37 at 6. In addition, the government promised to recommend a two-level reduction for being a minor participant based on Lewis’s understanding that such a reduction was “completely within the sentencing court’s discretion.” Id. at 3, 5.

At his guilty plea hearing in May 2006, Lewis admitted that he willingly helped the confidential informants purchase cocaine two times. R3 at 31. The government advised the court that it would recommend a two-level reduction as a minor participant based upon Lewis’s role as essentially a middleman. Id. at 24. Lewis affirmed that he understood the plea agreement. Id. at 25.

At the sentencing hearing in August 2006, Lewis objected to the probation officer’s inclusion of a prior offense in his criminal history calculation. R2 at 4-7; *862 Addendum to the Presentence Report. Lewis did not object to the probation officer’s determination that no role reduction applied. Nor did Lewis object to the court’s establishment of Lewis’s offense level without a role reduction, which set the advisory guidelines range between 151 to 188 months of imprisonment. Id. at 12. Although Lewis argued the court should consider his minimal role in the offense as a mitigating factor, he did not specifically argue that he was entitled to a § 3B1.2 reduction. Id. at 13. The prosecutor noted that Lewis would have been eligible for life without parole under the original charge, and that the favorable plea bargain recognized Lewis’s role as a middleman. Id. at 15-16. Lewis acknowledged that he had “received some benefit from that” and asked the court to “give him somewhat of a break on the number of months.” Id. at 16-17. The sentencing judge stated that he had examined all factors of 18 U.S.C. § 3553. Id. at 17. Based on Lewis’s lengthy criminal record, the sizable quantity of crack cocaine distributed, and the very favorable plea bargain he received, Lewis was sentenced to 180 months of imprisonment. Id. at 17-18. Besides his previous objections to the presentence report, Lewis made no further objections to the district court’s findings of fact or conclusions of law. Id. at 19-20.

II. DISCUSSION

On appeal, Lewis argues that the district court clearly erred in failing to analyze Lewis’s role and make factual findings as to why Lewis was not entitled to a two-level § 3B1.2(b) minor role reduction. Because Lewis did not object on these grounds in the district court, our review is limited to plain error. See United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). We have “discretion to correct an error under the plain error standard where (1) an error occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.

Under § 3B1.2(b), a defendant’s base offense level may be decreased two levels “[i]f the defendant was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b) (Nov. 2002). A defendant’s role in the offense should be evaluated based on all relevant conduct and not just on the acts cited in the count of conviction. United States v. Rodriguez De Varon, 175 F.3d 930, 940-41 (11th Cir.1999). This means a defendant’s role must be measured against the relevant conduct attributed to the defendant in calculating his base offense level. Id. at 941. The amount of drugs involved is a relevant factor and, under some circumstances, may be dispositive. Id. at 943. In addition, the defendant’s culpability as compared to that of any other participants is germane. Id. at 944; see U.S.S.G. § 3B1.2 cmt. n. 5 (minor role reduction appropriate if the defendant was “less culpable than most other participants”).

A district court is not bound by the government’s recommendation in a plea agreement. See Federal Rule of Criminal Procedure 11(c)(1)(B). Nor is a district court required to make any specific factual findings “other than the ultimate determination of the defendant’s role in the offense.” De Varon, 175 F.3d at 940. “So long as the basis of the trial court’s decision is supported by the record and does not involve a misapplication of a rule of law, we believe that it will be rare for an appellate court to conclude that the sentencing court’s determination is clearly erroneous.” Id. at 945 (emphasis in original). A district court’s failure to make specific factual findings or conclusions of law will not preclude appellate review *863 where there is adequate evidence to support the district court’s summary rejection of the defendant’s arguments. See United States v. Villarino, 930 F.2d 1527, 1529 (11th Cir.1991).

Here, the district court did not make specific factual findings or conclusions of law about whether Lewis was entitled to a § 3B1.2(b) reduction because Lewis did not specifically request such a reduction.

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

Related

Guerra v. United States
858 F. Supp. 2d 1321 (S.D. Florida, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
302 F. App'x 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeffery-lewis-ca11-2008.