Case: 17-15020 Date Filed: 08/30/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15020 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cr-00068-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRELL ANTONIO ROBERTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(August 30, 2018)
Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
Jerrell Antonio Roberts appeals his sentence of 87 months imprisonment and Case: 17-15020 Date Filed: 08/30/2018 Page: 2 of 8
36 months supervised release. He contends that the district court improperly
applied the United States Sentencing Guidelines.
I.
In September 2016 officers with the Violent Crimes Task Force arrested
Roberts and Aston Manor in Chatham County, Georgia. During the arrest, the
officers found a firearm that Roberts had dropped on the ground and $1,000 on his
person. On Manor they found a firearm and a small quantity of marijuana. And in
Roberts’ car, which the two men had fled from before the arrest, the officers found
33 Xanax pills in an unlabeled prescription bottle in the passenger door. When
asked, Manor told the officers that the pills “were not his” and were “not in his
possession.” A Georgia grand jury returned a three count indictment against
Roberts, charging him with: (1) possession of a firearm by a convicted felon;
(2) possession of a controlled substance (Xanax) with intent to distribute; and
(3) possession of a firearm in furtherance of a drug trafficking crime.
A few days after his arrest, Roberts made multiple telephone calls to Manor
from the Chatham County Jail asking him to provide an affidavit taking
responsibility for one of the charges against Roberts because Manor did not have a
record and would receive only a probation sentence. Manor responded to the
request by asking “How? They weren’t even around me” and repeating “How am I
gonna tell them folks that’s my shit? I mean how? How? The shit wasn’t even
2 Case: 17-15020 Date Filed: 08/30/2018 Page: 3 of 8
around me or by me.” 1 Roberts told Manor that he was Roberts’ “guardian angel”
and that Roberts “need[ed Manor] like Christians need Jesus.” Roberts asked
Manor if he was scared of being sentenced to probation and told him that “you’re
either going to take my lick or leave me high and dry, one of the two.”
Ten months later Manor signed an affidavit claiming the Xanax were his.
He swore that he possessed the pills without Roberts’ knowledge and that he had
not been threatened or coerced to make that statement. After that the government
sought to add an obstruction of justice charge against Roberts and called Manor to
testify before a federal grand jury. When asked about the affidavit that he had
signed only two weeks earlier, Manor said that he could not remember who was
with him at the time it was signed. When asked whether there was a reason for his
inability to remember, Manor responded, “I don’t want to say.” And he invoked
the Fifth Amendment when asked where he got the Xanax; whether he
remembered denying ownership of the pills when talking to police; who was with
him when he signed the affidavit; whether Roberts was present; and whether he
talked to Roberts while Roberts was in jail.
Roberts later entered a written plea agreement, in which he pleaded guilty to
possession of a firearm by a felon, and the remaining counts were dismissed. For
1 Roberts did not explicitly reference Xanax during the phone call, but it was not clearly erroneous for the court to find that Manor’s comment that “[t]hey weren’t even around me,” could have been made only in reference to the Xanax pills. 3 Case: 17-15020 Date Filed: 08/30/2018 Page: 4 of 8
sentencing, Roberts’ presentence investigation report assigned him a base offense
level of 20 under United States Sentencing Guideline § 2K2.1(a)(4)(A) (Nov.
2016). It applied a four-level increase because Roberts possessed the firearm in
connection with another felony offense, id. § 2K2.1(b)(6)(B), and a two-level
increase for obstruction of justice, id. § 3C1.1. With a total offense level of 26 and
a criminal history category of II, his guidelines range was 70 to 87 months
imprisonment. Roberts objected and argued that neither enhancement was
warranted because the Xanax belonged to Manor. The probation officer responded
that recorded jail telephone calls showed that Roberts possessed the Xanax pills
and convinced Manor to take responsibility for them.
Roberts filed a presentencing memorandum reasserting his objections and
disagreeing with the probation officer’s analysis of his conversations with Manor.
At the hearing, the district court acknowledged Roberts’ objections to the PSR and
invited Roberts to present any further argument. Roberts called Manor as a
witness, and Manor testified that he had been charged with possession of Xanax,
that the Xanax pills belonged to him, and that no one had made threats to get him
to the hearing. But when asked about his conversations with Roberts, Manor
testified that he remembered Roberts calling him from jail, but had no memory of
the contents of their conversations. He also said that he did not recall telling the
officers on the night of the arrest that the pills were not his.
4 Case: 17-15020 Date Filed: 08/30/2018 Page: 5 of 8
The district court found that Manor was evasive in his grand jury testimony
and that it was impossible to determine whether the statements in his affidavit were
true. It also found that a preponderance of the evidence showed that Roberts
encouraged Manor to give an affidavit taking responsibility for the Xanax. Based
on those findings, the court denied Roberts’ objections and adopted the PSR in its
entirety.
The court sentenced Roberts to 87 months imprisonment and 36 months
supervised release. This is his appeal. Roberts contends that the district court
misapplied the guidelines when it adopted the two sentence enhancements.
II.
“We review de novo the district court’s interpretation and application of the
sentencing guidelines” and its decision “applying enhancements to specific offense
characteristics.” United States v. Amedeo, 370 F.3d 1305, 1312 (11th Cir. 2004)
(quotation marks omitted). But we review only for clear error the court’s
factfindings related to the imposition of an enhancement, id., giving “substantial
deference to the court’s credibility determinations at sentencing,” United States v.
Plasencia, 886 F.3d 1336, 1343 (11th Cir. 2018) (quotation marks omitted). A
district court’s finding that a firearm was possessed “in connection with” another
felony offense is a factfinding that this Court reviews only for clear error. United
States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995).
5 Case: 17-15020 Date Filed: 08/30/2018 Page: 6 of 8
A.
First, Roberts contends that the court erred by applying a two-level
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Case: 17-15020 Date Filed: 08/30/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15020 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cr-00068-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRELL ANTONIO ROBERTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
(August 30, 2018)
Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
Jerrell Antonio Roberts appeals his sentence of 87 months imprisonment and Case: 17-15020 Date Filed: 08/30/2018 Page: 2 of 8
36 months supervised release. He contends that the district court improperly
applied the United States Sentencing Guidelines.
I.
In September 2016 officers with the Violent Crimes Task Force arrested
Roberts and Aston Manor in Chatham County, Georgia. During the arrest, the
officers found a firearm that Roberts had dropped on the ground and $1,000 on his
person. On Manor they found a firearm and a small quantity of marijuana. And in
Roberts’ car, which the two men had fled from before the arrest, the officers found
33 Xanax pills in an unlabeled prescription bottle in the passenger door. When
asked, Manor told the officers that the pills “were not his” and were “not in his
possession.” A Georgia grand jury returned a three count indictment against
Roberts, charging him with: (1) possession of a firearm by a convicted felon;
(2) possession of a controlled substance (Xanax) with intent to distribute; and
(3) possession of a firearm in furtherance of a drug trafficking crime.
A few days after his arrest, Roberts made multiple telephone calls to Manor
from the Chatham County Jail asking him to provide an affidavit taking
responsibility for one of the charges against Roberts because Manor did not have a
record and would receive only a probation sentence. Manor responded to the
request by asking “How? They weren’t even around me” and repeating “How am I
gonna tell them folks that’s my shit? I mean how? How? The shit wasn’t even
2 Case: 17-15020 Date Filed: 08/30/2018 Page: 3 of 8
around me or by me.” 1 Roberts told Manor that he was Roberts’ “guardian angel”
and that Roberts “need[ed Manor] like Christians need Jesus.” Roberts asked
Manor if he was scared of being sentenced to probation and told him that “you’re
either going to take my lick or leave me high and dry, one of the two.”
Ten months later Manor signed an affidavit claiming the Xanax were his.
He swore that he possessed the pills without Roberts’ knowledge and that he had
not been threatened or coerced to make that statement. After that the government
sought to add an obstruction of justice charge against Roberts and called Manor to
testify before a federal grand jury. When asked about the affidavit that he had
signed only two weeks earlier, Manor said that he could not remember who was
with him at the time it was signed. When asked whether there was a reason for his
inability to remember, Manor responded, “I don’t want to say.” And he invoked
the Fifth Amendment when asked where he got the Xanax; whether he
remembered denying ownership of the pills when talking to police; who was with
him when he signed the affidavit; whether Roberts was present; and whether he
talked to Roberts while Roberts was in jail.
Roberts later entered a written plea agreement, in which he pleaded guilty to
possession of a firearm by a felon, and the remaining counts were dismissed. For
1 Roberts did not explicitly reference Xanax during the phone call, but it was not clearly erroneous for the court to find that Manor’s comment that “[t]hey weren’t even around me,” could have been made only in reference to the Xanax pills. 3 Case: 17-15020 Date Filed: 08/30/2018 Page: 4 of 8
sentencing, Roberts’ presentence investigation report assigned him a base offense
level of 20 under United States Sentencing Guideline § 2K2.1(a)(4)(A) (Nov.
2016). It applied a four-level increase because Roberts possessed the firearm in
connection with another felony offense, id. § 2K2.1(b)(6)(B), and a two-level
increase for obstruction of justice, id. § 3C1.1. With a total offense level of 26 and
a criminal history category of II, his guidelines range was 70 to 87 months
imprisonment. Roberts objected and argued that neither enhancement was
warranted because the Xanax belonged to Manor. The probation officer responded
that recorded jail telephone calls showed that Roberts possessed the Xanax pills
and convinced Manor to take responsibility for them.
Roberts filed a presentencing memorandum reasserting his objections and
disagreeing with the probation officer’s analysis of his conversations with Manor.
At the hearing, the district court acknowledged Roberts’ objections to the PSR and
invited Roberts to present any further argument. Roberts called Manor as a
witness, and Manor testified that he had been charged with possession of Xanax,
that the Xanax pills belonged to him, and that no one had made threats to get him
to the hearing. But when asked about his conversations with Roberts, Manor
testified that he remembered Roberts calling him from jail, but had no memory of
the contents of their conversations. He also said that he did not recall telling the
officers on the night of the arrest that the pills were not his.
4 Case: 17-15020 Date Filed: 08/30/2018 Page: 5 of 8
The district court found that Manor was evasive in his grand jury testimony
and that it was impossible to determine whether the statements in his affidavit were
true. It also found that a preponderance of the evidence showed that Roberts
encouraged Manor to give an affidavit taking responsibility for the Xanax. Based
on those findings, the court denied Roberts’ objections and adopted the PSR in its
entirety.
The court sentenced Roberts to 87 months imprisonment and 36 months
supervised release. This is his appeal. Roberts contends that the district court
misapplied the guidelines when it adopted the two sentence enhancements.
II.
“We review de novo the district court’s interpretation and application of the
sentencing guidelines” and its decision “applying enhancements to specific offense
characteristics.” United States v. Amedeo, 370 F.3d 1305, 1312 (11th Cir. 2004)
(quotation marks omitted). But we review only for clear error the court’s
factfindings related to the imposition of an enhancement, id., giving “substantial
deference to the court’s credibility determinations at sentencing,” United States v.
Plasencia, 886 F.3d 1336, 1343 (11th Cir. 2018) (quotation marks omitted). A
district court’s finding that a firearm was possessed “in connection with” another
felony offense is a factfinding that this Court reviews only for clear error. United
States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995).
5 Case: 17-15020 Date Filed: 08/30/2018 Page: 6 of 8
A.
First, Roberts contends that the court erred by applying a two-level
enhancement for obstruction of justice. An obstruction of justice enhancement
applies when “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction” and the obstruction
relates to the defendant’s offense of conviction or related conduct. U.S.S.G.
§ 3C1.1. Obstruction conduct includes “threatening, intimidating, or otherwise
unlawfully influencing” a witness or “suborning, or attempting to suborn, perjury.”
Id., cmt. n.4(A), (B). One way that a defendant unlawfully influences a potential
witness is by urging the witness to lie. United States v. Amedeo, 370 F.3d 1305,
1319 (11th Cir. 2004). And he suborns perjury by knowingly procuring another to
provide false testimony, which tends to influence or affect the issue under
determination. Plasencia, 886 F.3d at 1346.
The district court did not clearly err when it found that Roberts encouraged
Manor to give an affidavit taking responsibility for the Xanax. The recorded
phone conversations show that Roberts called Manor from jail, asked him to file an
affidavit, and when Manor pushed back, told him that “you’re either going to take
my lick or leave me high and dry, one of the two.” Before and during that
conversation Manor denied owning the Xanax and repeatedly asked Roberts how
6 Case: 17-15020 Date Filed: 08/30/2018 Page: 7 of 8
he could expect Manor to claim the pills were his. But after talking with Roberts,
Manor changed course and signed the affidavit claiming the pills, which was
intended to lower Roberts’ sentence. Those facts support the court’s conclusion
that Roberts “unlawfully influenc[ed]” Manor and “willfully obstructed . . . the
administration of justice with respect to the investigation, prosecution, or
sentencing” of Roberts’ case. The district court did not err by applying a two-level
enhancement under § 3C1.1. 2 See Amedeo, 370 F.3d at 1319.
B.
Next, Roberts contends that the district court erred by applying a four-level
enhancement for using or possessing a firearm in connection with a drug
trafficking offense. See U.S.S.G. § 2K2.1(b)(6)(B); id. cmt. n.14(B) (explaining
that the enhancement applies when “a firearm is found in close proximity to
drugs . . . because the presence of the firearm has the potential of facilitating
another felony offense or another offense”). Roberts argues that the district court
erred when it found that the Xanax belonged to him, and for that reason, erred
2 At the end of the sentence hearing, the court asked Roberts if he would like to make a personal statement for mitigation of his sentence. Roberts responded that the phone calls with Manor were not about the Xanax pills but about Roberts’ firearm. The court asked whether Roberts meant that he had asked Manor to claim the firearm, and Roberts said yes. It then questioned why it was not obstruction if Roberts was trying to get Manor to take responsibility for Roberts’ firearm, and Roberts replied, “[d]ue to his record, sir.” That exchange also shows that the court did not clearly err when it found the obstruction of justice enhancement was warranted. See Plasencia, 886 F.3d at 1346. 7 Case: 17-15020 Date Filed: 08/30/2018 Page: 8 of 8
when it found that his possession of a firearm was “in connection with” the
unlawful possession of Xanax.
Notwithstanding Manor’s affidavit, the district court did not clearly err in
finding that the Xanax actually belonged to Roberts. Throughout Manor’s
testimony before the grand jury and at the sentence hearing, he invoked the Fifth
Amendment or claimed that he could not remember facts from the night of the
arrest and the day that he prepared his affidavit. As for the affidavit, Manor waited
10 months before filing it and did so only after Roberts insisted. His confessions
are inconsistent with what he told officers on the night of the arrest. Given those
inconsistencies, the district court did not clearly err when it found that Manor’s
testimony was not credible, decided that the Xanax actually belonged to Roberts,
and applied the enhancements. See id. § 2K2.1(b)(6)(B); id. § 3C1.1.
AFFIRMED.