USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-12082 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERMAINE TERRELL HADLEY, a.k.a.TANK,
Defendant-Appellant. ____________________
Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cr-00045-MW-MAF-1 ____________________ USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 2 of 9
2 Opinion of the Court 21-12082
No. 21-12083 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERMAINE TERRELL HADLEY, a.k.a. TANK,
Defendant-Appellant.
Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cr-00061-MW-MAF-1 ____________________
Before NEWSOM, LUCK, and LAGOA, Circuit Judges. PER CURIAM: USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 3 of 9
21-12082 Opinion of the Court 3
Jermaine Hadley headed a gang-affiliated drug-trafficking organization, as well as a large-scale dogfighting ring, in the Florida panhandle. After he pleaded guilty or no contest to several dozen offenses, the district court imposed a bottom-of-the-Guidelines sentence of 360 months. On appeal, Hadley alleges three Sixth Amendment violations and raises two challenges to his sentence. Finding no merit to any of them, we affirm. I We review Hadley’s Sixth Amendment claims de novo. United States v. Smith, 928 F.3d 1215, 1225 (11th Cir. 2019). Hadley asserts that the district court erred by (1) applying certain Guide- lines enhancements based on facts found by a preponderance of the evidence, (2) admitting hearsay at sentencing, and (3) failing to ap- prise him of the Guidelines enhancements that might apply prior to accepting his plea. We take those in turn. A Hadley’s first argument is meritless. It’s true that where a fact is used to “increase the prescribed range of penalties to which a criminal defendant is exposed,” the Sixth Amendment requires that fact to be proven beyond a reasonable doubt—and to a jury if the defendant so chooses. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (quotation omitted). But “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” United States v. Booker, 543 U.S. 220, USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 4 of 9
4 Opinion of the Court 21-12082
233 (2005). So long as the trial judge’s findings do not increase the statutory maximum or minimum, he can “mak[e], under a prepon- derance-of-the-evidence standard, additional factual findings that go beyond a defendant’s admissions.” United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007). The district court properly fol- lowed this rule in finding that various provisions of the Sentencing Guidelines applied. B Next, Hadley argues that the Sixth Amendment right of con- frontation applies at sentencing. Therefore, he says, the district court couldn’t rely on hearsay to support certain Guidelines en- hancements. This argument, too, is foreclosed by binding precedent. In United States v. Cantellano, we squarely held that “[t]he right to confrontation is not a sentencing right.” 430 F.3d 1142, 1146 (11th Cir. 2005) (per curiam). Thus, we said, “a district court may use reliable hearsay at sentencing” in a non-capital proceeding. Id. Hadley doesn’t dispute the district court’s finding that the hearsay used here was reliable. Nevertheless, he urges that Cantellano is no longer good law in light of United States v. Haymond, 139 S. Ct. 2369 (2019). We disagree. For a Supreme Court decision to overcome our prior- precedent rule, it must be “squarely on point” and “actually abro- gate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 5 of 9
21-12082 Opinion of the Court 5
1255 (11th Cir. 2009). Haymond doesn’t fit the bill. Indeed, it wasn’t even a Confrontation Clause case. What’s more, we have continued to apply Cantellano in the wake of Haymond. See United States v. Rogers, 989 F.3d 1255, 1263–64 (11th Cir. 2021). Because there is no exception to our prior-panel-precedent rule “even if the prior panel completely overlooked a Supreme Court decision on point,” Rogers binds us in any event. United States v. Emmanuel, 565 F.3d 1324, 1332 (11th Cir. 2009). C In his final Sixth Amendment challenge, Hadley insists— with no citation to authority—that the government had to inform him early on about the Sentencing Guidelines that might apply to him. He concedes that he didn’t raise this claim before the district court, so our review is only for plain error. United States v. Dun- can, 400 F.3d 1297, 1301 (11th Cir. 2005). That means we may re- verse only if “(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. Hadley “has the burden of establishing each of the four require- ments.” Greer v. United States, 141 S. Ct. 2090, 2097 (2021). He fails to show that the asserted error is plain. The Sixth Amendment doesn’t explicitly require that defendants be informed of advisory sentencing enhancements that might apply to them, and Hadley fails to cite any caselaw in support of his argument. See United States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (per curiam) (“When the explicit language of a statute or rule does not USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 6 of 9
6 Opinion of the Court 21-12082
specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly re- solving it.” (quotation omitted)). II Now to the sentencing issues, which we review for abuse of discretion. United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016) (per curiam). Hadley submits that his sentence is procedur- ally unreasonable because the district court failed to award him a third point for acceptance of responsibility. Separately, he argues that his sentence is substantively unreasonable. Neither claim war- rants reversal. A We’ll begin with the alleged procedural error. At sentenc- ing, the government explained that it chose not to file a motion for a third acceptance-of-responsibility point reduction under U.S.S.G. § 3E1.1(b) because Hadley had filed “blanket objections . . . . to es- sentially minimize his role,” some of which were “largely frivo- lous.” The district court then noted its understanding of § 3E1.1(b) that the government must file a motion for a defendant to receive the additional one-level reduction. See U.S.S.G.
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USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 21-12082 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERMAINE TERRELL HADLEY, a.k.a.TANK,
Defendant-Appellant. ____________________
Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cr-00045-MW-MAF-1 ____________________ USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 2 of 9
2 Opinion of the Court 21-12082
No. 21-12083 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERMAINE TERRELL HADLEY, a.k.a. TANK,
Defendant-Appellant.
Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:19-cr-00061-MW-MAF-1 ____________________
Before NEWSOM, LUCK, and LAGOA, Circuit Judges. PER CURIAM: USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 3 of 9
21-12082 Opinion of the Court 3
Jermaine Hadley headed a gang-affiliated drug-trafficking organization, as well as a large-scale dogfighting ring, in the Florida panhandle. After he pleaded guilty or no contest to several dozen offenses, the district court imposed a bottom-of-the-Guidelines sentence of 360 months. On appeal, Hadley alleges three Sixth Amendment violations and raises two challenges to his sentence. Finding no merit to any of them, we affirm. I We review Hadley’s Sixth Amendment claims de novo. United States v. Smith, 928 F.3d 1215, 1225 (11th Cir. 2019). Hadley asserts that the district court erred by (1) applying certain Guide- lines enhancements based on facts found by a preponderance of the evidence, (2) admitting hearsay at sentencing, and (3) failing to ap- prise him of the Guidelines enhancements that might apply prior to accepting his plea. We take those in turn. A Hadley’s first argument is meritless. It’s true that where a fact is used to “increase the prescribed range of penalties to which a criminal defendant is exposed,” the Sixth Amendment requires that fact to be proven beyond a reasonable doubt—and to a jury if the defendant so chooses. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (quotation omitted). But “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” United States v. Booker, 543 U.S. 220, USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 4 of 9
4 Opinion of the Court 21-12082
233 (2005). So long as the trial judge’s findings do not increase the statutory maximum or minimum, he can “mak[e], under a prepon- derance-of-the-evidence standard, additional factual findings that go beyond a defendant’s admissions.” United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007). The district court properly fol- lowed this rule in finding that various provisions of the Sentencing Guidelines applied. B Next, Hadley argues that the Sixth Amendment right of con- frontation applies at sentencing. Therefore, he says, the district court couldn’t rely on hearsay to support certain Guidelines en- hancements. This argument, too, is foreclosed by binding precedent. In United States v. Cantellano, we squarely held that “[t]he right to confrontation is not a sentencing right.” 430 F.3d 1142, 1146 (11th Cir. 2005) (per curiam). Thus, we said, “a district court may use reliable hearsay at sentencing” in a non-capital proceeding. Id. Hadley doesn’t dispute the district court’s finding that the hearsay used here was reliable. Nevertheless, he urges that Cantellano is no longer good law in light of United States v. Haymond, 139 S. Ct. 2369 (2019). We disagree. For a Supreme Court decision to overcome our prior- precedent rule, it must be “squarely on point” and “actually abro- gate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 5 of 9
21-12082 Opinion of the Court 5
1255 (11th Cir. 2009). Haymond doesn’t fit the bill. Indeed, it wasn’t even a Confrontation Clause case. What’s more, we have continued to apply Cantellano in the wake of Haymond. See United States v. Rogers, 989 F.3d 1255, 1263–64 (11th Cir. 2021). Because there is no exception to our prior-panel-precedent rule “even if the prior panel completely overlooked a Supreme Court decision on point,” Rogers binds us in any event. United States v. Emmanuel, 565 F.3d 1324, 1332 (11th Cir. 2009). C In his final Sixth Amendment challenge, Hadley insists— with no citation to authority—that the government had to inform him early on about the Sentencing Guidelines that might apply to him. He concedes that he didn’t raise this claim before the district court, so our review is only for plain error. United States v. Dun- can, 400 F.3d 1297, 1301 (11th Cir. 2005). That means we may re- verse only if “(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. Hadley “has the burden of establishing each of the four require- ments.” Greer v. United States, 141 S. Ct. 2090, 2097 (2021). He fails to show that the asserted error is plain. The Sixth Amendment doesn’t explicitly require that defendants be informed of advisory sentencing enhancements that might apply to them, and Hadley fails to cite any caselaw in support of his argument. See United States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (per curiam) (“When the explicit language of a statute or rule does not USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 6 of 9
6 Opinion of the Court 21-12082
specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly re- solving it.” (quotation omitted)). II Now to the sentencing issues, which we review for abuse of discretion. United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016) (per curiam). Hadley submits that his sentence is procedur- ally unreasonable because the district court failed to award him a third point for acceptance of responsibility. Separately, he argues that his sentence is substantively unreasonable. Neither claim war- rants reversal. A We’ll begin with the alleged procedural error. At sentenc- ing, the government explained that it chose not to file a motion for a third acceptance-of-responsibility point reduction under U.S.S.G. § 3E1.1(b) because Hadley had filed “blanket objections . . . . to es- sentially minimize his role,” some of which were “largely frivo- lous.” The district court then noted its understanding of § 3E1.1(b) that the government must file a motion for a defendant to receive the additional one-level reduction. See U.S.S.G. § 3E1.1(b) (provid- ing for reduction “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecu- tion of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the govern- ment to avoid preparing for trial and permitting the government USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 7 of 9
21-12082 Opinion of the Court 7
and the court to allocate their resources efficiently”). In the court’s view, it couldn’t “second-guess the government’s decision not to file a motion unless” it was “completely arbitrary” or made “for an unlawful reason like race, [or] gender.” On appeal, Hadley claims that the only valid reason for the government to decline to file a motion is that the defendant forced it to prepare for trial. But we needn’t reach the merits of this argu- ment. Hadley “induced or invited the ruling he now claims was error.” United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam). His counsel said that he “agree[d] with [the district court’s] analysis of the law,” and he represented that he didn’t know of “a good-faith argument to object to the government’s de- nial [of] that extra point.” Because he “affirmatively agree[d]” with the district court, Hadley cannot now “complain on appeal” that the district court committed reversible error. United States v. Jer- nigan, 341 F.3d 1273, 1290 (11th Cir. 2003). Further, even if we were to review the merits, we’d do so only for plain error. And Hadley hasn’t shown that any error was plain. Section 3E1.1(b) “does not explicitly address whether the Government can properly refuse to file [an acceptance-of-responsi- bility] motion based on” the reason it offered here—a defendant’s frivolous objections that attempt to minimize his role in the of- fense. United States v. Johnson, 980 F.3d 1364, 1385 (11th Cir. 2020). Nor has Hadley identified any “precedent from the Supreme Court or this Court [that] directly resolves the issue.” Id. (quota- tion marks omitted). USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 8 of 9
8 Opinion of the Court 21-12082
B Last up, we address the substantive reasonableness of Had- ley’s sentence. We will overturn a sentence as substantively unrea- sonable only if we’re “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the [18 U.S.C.] § 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) (quotation omitted). That’s not the case here. At the outset, we note that Had- ley’s sentence “is at the very bottom of the advisory Guidelines range,” and it is also well below the statutory maximum of life in prison, “two factors which indicate reasonableness.” United States v. Carpenter, 803 F.3d 1224, 1234 (11th Cir. 2015). In addition, Hadley’s crimes were very serious. Employing “perhaps the most conservative” estimate of “weight that [it] could,” the district court found that Hadley was responsible for distributing approximately 15.5 kilograms of “ice”—i.e., methamphetamine of at least 80% pu- rity—in rural Florida. See U.S.S.G. § 2D1.1(c), Note (C). The court then emphasized “the quantity of the drugs, and the scope of th[e] drug conspiracy, and the pernicious nature of methamphetamine that is literally destroying rural communities” like the ones Hadley had exploited. See 18 U.S.C. § 3553(a)(1), (2)(A). The district court was entitled to weigh these factors heavily, favoring a stiff sen- tence. See United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014). USCA11 Case: 21-12082 Date Filed: 04/21/2022 Page: 9 of 9
21-12082 Opinion of the Court 9
Hadley responds only that, in his view, the drug quantity ta- ble’s ten-to-one ratio between “ice” and methamphetamine mix- tures of lesser purity is irrational.1 See U.S.S.G. § 2D1.1(c)(1). This is unavailing. The district court was certainly “empowered” to fac- tor in this policy consideration, but it was “not compelled to vary downward” based upon it. United States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014); see United States v. Williams, 19 F.4th 374, 378 (4th Cir. 2021); United States v. Heim, 941 F.3d 338, 340–41 (8th Cir. 2019). Additionally, the district court wasn’t required to explicitly rebut Hadley’s policy argument on the record—particu- larly given that he never raised that argument to the district court. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). In sum, we are satisfied that the district court did what it was supposed to do. After “fully consider[ing] all the [§ 3553(a)] fac- tors,” it found that a 360-month sentence was “sufficient, but not greater than necessary, to comply with the statutorily defined pur- poses of sentencing.” That was not an abuse of discretion. * * * We AFFIRM.
1 It appears, then, that Hadley’s challenge is only to his 360-month sentence for the methamphetamine-related counts. He doesn’t argue that either his 240-month sentence for the cocaine-related counts or his 60-month sentence for the dogfighting counts—both of which are running concurrently with the methamphetamine counts—is unreasonable.