United States v. Sheldrick D. Singleton, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 29, 2021
• Docket: 20-10017
• Status: Unpublished

Opinion

USCA11 Case: 20-10017 Date Filed: 06/29/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10017 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cr-00155-GKS-GJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHELDRICK D. SINGLETON, JR.

Defendant-Appellant.

________________________

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

(June 29, 2021)

Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

Sheldrick Singleton, Jr., appeals his 100-month sentence for aiding and

abetting a carjacking, in violation of 18 U.S.C. §§ 2119, 2, and his 60-month USCA11 Case: 20-10017 Date Filed: 06/29/2021 Page: 2 of 12

consecutive sentence for aiding and abetting the use of a firearm during a crime of

violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2. On appeal, Singleton

argues that: (1) the district court erred in applying a one-level amount of loss

enhancement under U.S.S.G. § 2B3.1, in applying a two-level reckless

endangerment enhancement under U.S.S.G. § 3C1.2, and in computing his criminal

history points; (2) his sentence is procedurally and substantively unreasonable; and

(3) the district court plainly erred when it imposed a general sentence of five years’

supervised release that exceeded the maximum authorized supervised release term

for aiding and abetting a carjacking. The government concedes that the district court

plainly erred when it imposed the general sentence of five years’ supervised release.

After careful review, we affirm in part, and vacate and remand in part.

Ordinarily, we review a district court’s findings of fact for clear error, its

interpretation of a guideline provision de novo, and its application of the facts to the

guidelines de novo. United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004).

But we review unpreserved challenges for plain error. United States v. Vandergrift,

754 F.3d 1303, 1307 (11th Cir. 2014). Plain error requires a defendant to show (1)

an error, (2) that is plain, and (3) that affected his substantial rights. United States

v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satisfies these

conditions, we may exercise our discretion to recognize the error only if it seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id. To

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preserve an objection, the defendant must raise the argument in specific and clear

language to provide the district court with the legal basis of the objection. United

States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006).

We review the sentence the district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted). Procedural

reasonableness arguments that are not raised in the district court are reviewed for

plain error. Vandergrift, 754 F.3d at 1307.

First, we are unpersuaded by Singleton’s challenges -- raised for the first time

on appeal -- to the district court’s sentencing determinations about the amount-of-

loss enhancement, the reckless-endangerment enhancement, and his criminal history

points calculations. The sentencing guidelines provide for a one-level increase to an

offense level if the loss amount exceeds $20,000 but is less than $95,000. U.S.S.G.

§ 2B3.1(b)(7)(B). The guidelines commentary defines “loss” as “the value of the

property taken, damaged, or destroyed.” Id. § 2B3.1 cmt. n.3. In contrast, restitution

is based on the “full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A).

“[T]he amount of loss does not necessarily equal the amount of restitution to be paid

because a defendant’s culpability will not always equal the victim’s injury.” United

States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010) (quotation omitted). While

district courts “cannot simply make baseless presumptions” in assessing loss and

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restitution, United States v. Sheffield, 939 F.3d 1274, 1277 (11th Cir. 2019), “[a]

failure to object to allegations of fact in the [presentence investigation report

(“PSI”)] admits those facts for sentencing purposes.” United States v. Wade, 458

F.3d 1273, 1277 (11th Cir. 2006).

The guidelines provide for a two-level increase “[i]f the defendant recklessly

created a substantial risk of death or serious bodily injury to another person in the

course of fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. For this

enhancement, “the defendant is accountable for the defendant’s own conduct and for

conduct that the defendant aided or abetted, counseled, commanded, induced,

procured, or willfully caused.” Id. § 3C1.2 cmt. n.5. “But a defendant cannot be

held responsible for another’s conduct under § 3C1.2 without some form of direct

or active participation.” United States v. Dougherty, 754 F.3d 1353, 1360 (11th Cir.

2014). We “require[] a specific finding [] that the defendant actively caused or

procured the reckless behavior at issue.” Id. (quotations omitted). “Mere

foreseeability of the [reckless] conduct is insufficient” to apply § 3C1.2. Id.

Under the guidelines, a defendant has a criminal history category of VI if he

has 13 or more criminal history points. U.S.S.G. Chpt. 5, pt. A. Prior sentences of

imprisonment exceeding 13 months receive 3 points; prior sentences of at least 60

days but no more than 13 months receive 2 points; and sentences not otherwise

counted receive 1 point each, for a maximum of 4 points. U.S.S.G. § 4A1.1. Under

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§ 4A1.2(b)(1), a sentence of imprisonment means incarceration. Id. § 4A1.2(b)(1).

Offenses committed before age 18 receive 3 points if the defendant was convicted

as an adult and received a sentence of imprisonment for more than 13 months, 2

points if the defendant was sentenced to confinement for at least 60 days and was

released within 5 years of the instant offense, and 1 point if not otherwise covered

and the sentence was imposed within 5 years of instant offense. Id. § 4A1.2(d). If

the defendant received probation but probation was revoked, the original term of

imprisonment is added to the term of imprisonment imposed upon revocation. Id. §

4A1.2(k)(1). Revocation of probation may affect the time period of offenses

committed before the defendant’s 18th birthday. Id. § 4A1.2(k)(2). To determine

the applicable time period for confinement sentences other than adult terms of

imprisonment exceeding 13 months, the guidelines say to use the date of the

defendant’s last release from confinement on the sentence. Id.

The guidelines advise that a district court should only count a previous

conviction for trespass, resisting arrest, failure to obey a police officer, or providing

false information to a police officer if the sentence was a term of probation of more

than one year or a term of imprisonment of at least 30 days. Id. § 4A1.2(c)(1). And

district courts should not assess points for loitering. Id. § 4A1.2(c)(2). The district

court should aggregate the original sentence and the probation revocation sentence

to determine if the conviction is exempt from criminal history points under §

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4A1.2(c)(1). United States v. Coast, 602 F.3d 1222, 1223 (11th Cir. 2010). We’ve

held, however, that an alleged error in calculating criminal history points was

harmless when the defendant’s remaining criminal history points made him not

eligible for the Safety Valve, 1 and thus, would not have changed his sentence.

United States v. Monzo, 852 F.3d 1343, 1351-52 (11th Cir. 2017).

Here, Singleton has failed to show plain error as to the three sentencing

determinations he challenges for the first time on appeal. As for loss amount, the

unobjected to PSI facts show that the victim’s car had an estimated value of $25,000.

The guidelines include the value of the property taken as part of the amount lost.

U.S.S.G. § 2B3.1 cmt. n.3. And because Singleton did not object to the facts in the

PSI, the loss amount is admitted for sentencing purposes. Wade, 458 F.3d at 1277.

Thus, the district court did not plainly err in calculating loss at $25,000.

As for the reckless-endangerment enhancement, the district court did not

commit plain error in finding that Singleton actively committed, procured, or abetted

a dangerous flight form the police. See U.S.S.G. § 3C1.2; id. § 3C1.2 cmt. n.5.

Indeed, the undisputed factual statements from the PSI indicate that Singleton was

the driver -- the police arrested three men from a stolen car, one of whom was

Singleton, another claimed to be in the backseat, and a third man had possession of

1 Under the Safety Valve provision, a district court sentences a defendant without regard to any statutory minimum sentence if the court finds the defendant, inter alia, “does not have more than 1 criminal history point, as determined under the sentencing guidelines.” U.S.S.G. § 5C1.2(a). 6 USCA11 Case: 20-10017 Date Filed: 06/29/2021 Page: 7 of 12

the firearm found in the front passenger seat, and Singleton had fled from the police

in stolen cars on prior occasions. The undisputed facts also reveal that the car’s rate

of speed -- at least 20 to 30 miles per hour faster than the speed limit -- and the need

for a maneuver to stop the car displayed a risk of serious harm to others. See

U.S.S.G. § 3C1.2. On this record, the district court did not plainly err in applying

the reckless-endangerment enhancement.

As for his criminal history calculation, there also is no plain error. Singleton

has not offered any law to establish that a juvenile sentence to confinement imposed

on revocation of probation cannot be aggregated to an original sentence of 12

months’ probation, thereby resulting in the scoring of an offense listed in §

4A1.2(c)(1). See U.S.S.G. § 4A1.2; Coast, 602 F.3d at 1223. But even if these three

challenged points were removed, Singleton would still have two § 4A1.1(c)

convictions remaining, for a total of 18 criminal history points, and a criminal history

category of VI. See U.S.S.G. § 4A1.1; U.S.S.G. Chpt. 5, pt. A. Because Singleton’s

criminal history category would not change, his substantial rights were not affected,

and he has failed to establish plain error in his criminal history calculation.2

Next, we find no merit in Singleton’s argument that his sentence is

procedurally and substantively unreasonable. In reviewing sentences for

2 Because Singleton has not established plain error in any of his sentencing determinations, we need not address the government’s argument that Singleton invited any alleged errors by concurring with the guideline calculations in the PSI. 7 USCA11 Case: 20-10017 Date Filed: 06/29/2021 Page: 8 of 12

reasonableness, we perform two steps. Pugh, 515 F.3d at 1190. First, we “‘ensure

that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines range.’” Id. (quoting

Gall v. United States, 552 U.S. 38, 51 (2007)).3

If we conclude that the district court did not procedurally err, we consider the

“substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard,” based on the “totality of the circumstances.” Pugh, 515 F.3d at 1190

(quotation omitted). “[W]e will not second guess the weight (or lack thereof) that

the [court] accorded to a given [§ 3553(a)] factor . . . as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.” Id. at

1192 (quotation omitted). The district court is free to “attach great weight to one

factor over others.” United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.

2015) (quotation omitted). However, a court may abuse its discretion if it (1) fails

3 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 8 USCA11 Case: 20-10017 Date Filed: 06/29/2021 Page: 9 of 12

to consider relevant factors that are due significant weight, (2) gives an improper or

irrelevant factor significant weight, or (3) commits a clear error of judgment by

balancing a proper factor unreasonably. United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010) (en banc).

The party challenging the sentence bears the burden of showing that the

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

2010). While we do not automatically presume a sentence falling within the

guideline range to be reasonable, we ordinarily expect that sentence to be reasonable.

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well

below the statutory maximum penalty is another indicator of reasonableness. United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Here, Singleton’s sentence is reasonable. We review his arguments

concerning procedural reasonableness for plain error, since he did not make any

specific objection to procedural reasonableness in the district court, and can find no

error, plain or otherwise. For starters, as we’ve discussed, none of the guidelines

calculations found by the court were plainly erroneous. As for Singleton’s claim

that the district court rejected the expert testimony of psychologist Dr. Eddy Regnier,

we disagree -- the district court expressly relied on the expert’s testimony in

sentencing Singleton. As for Singleton’s claim that the district court relied on the

erroneous fact that he had already been evaluated for competency and found

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competent, we again disagree. The record reflects that the court acknowledged it

was unsure whether the evaluation happened; the court only used the possibility of

a prior competency hearing as a lead-in to the questions it asked Dr. Regnier, who

testified that even if Singleton had been deemed competent, that did not mean he

would thrive in a prison setting; and in any event, the court’s reasoning for the

sentence did not rely on an erroneous belief that Singleton had been evaluated.

As for Singleton’s claim that the court ignored his mitigation evidence, the

court expressly considered his difficult childhood, neighborhood, and mental health,

in addition to the other § 3553(a) factors, in reaching the conclusion that a low-end

guideline-range sentence was reasonable. Further, nothing in the record suggests

that the court treated the guidelines as mandatory. In short, Singleton has not shown

his sentence was procedurally unreasonable, plainly or otherwise.

Nor has Singleton shown that his sentence was substantively reasonable. As

we’ve noted, the district court considered the mitigating factors from Singleton’s

personal characteristics and history, including his youth and traumatic childhood,

his neighborhood, his mental health, and his intellectual impairments. The court also

considered the nature of the offense, Singleton’s criminal history, the need to protect

the public, and providing deterrence as rationale for its sentence. In so doing, the

court reasonably gave substantial weight to these factors because the offense

involved a high-speed flight from the police at 90-100 miles per hour, a gun was

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found at the scene, and Singleton had a substantial number of juvenile violations

with a history of violence. It then reasonably found that Singleton was a real risk to

the public who had not been adequately deterred by previous criminal punishment.

Under our case law, the district court was free to give great weight to these factors

over the mitigating evidence about Singleton’s personal history, see Rosales-Bruno,

789 F.3d at 1254, and Singleton has not shown that the district court’s weighing of

the factors was unreasonable. See Tome, 611 F.3d at 1378.

Moreover, the district court imposed a 100-month sentence at the bottom of

the guideline range and substantially below the statutory maximum of 15-years, two

indicators of reasonableness. See Hunt, 526 F.3d at 746; Gonzalez, 550 F.3d at

1324. And while the 60-month sentence for Count 2 was to be served consecutively,

that sentence was also well below the statutory maximum of life imprisonment. On

this record, Singleton has not shown that his sentence was unreasonable.

Finally, however, we agree with Singleton and the government that the district

court plainly erred when it imposed a general sentence of five years of supervised

release. “A general sentence is an undivided sentence for more than one count that

does not exceed the maximum possible aggregate sentence for all the counts but does

exceed the maximum allowable sentence on one of the counts.” United States v.

Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (quotation omitted). “Such

sentences are per se illegal in this circuit, and require a remand.” Id.

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The statutory-maximum term of supervised release for a Class A or Class B

felony conviction is five years. 18 U.S.C. § 3583(b)(1). The statutory-maximum

term of supervised release for a Class C or Class D felony is three years. Id. §

3583(b)(2). An offense is a Class A felony if the maximum term of imprisonment

is life. Id. § 3559(a)(1). An offense is a Class C felony if the maximum term of

imprisonment is “less than twenty-five years but ten or more years.” Id. §

3559(a)(3). A carjacking conviction under § 2119 has a maximum term of

imprisonment of 15 years. Id. § 2119(1). A conviction under § 924(c)(1)(A)(ii) has

a maximum term of life imprisonment. Id. § 924(c)(1)(A)(ii).

Here, the district court plainly erred by imposing a general sentence of five

years’ supervised release. Singleton’s carjacking conviction (Count 1) carried a

maximum term of three years’ supervised release. See 18 U.S.C. §§ 2119(1),

3559(a)(3), 3583(b)(2). The district court’s judgment -- imposing a general sentence

of five years’ supervised release that did not specify the amount for each count --

was an error as to Count 1. And as our case law makes clear, this amounts to plain

error and affected Singleton’s substantial rights because it imposed a sentence on

him that exceeded the statutory maximum. See Moriarty, 429 F.3d at 1025;

Vandergrift, 754 F.3d at 1307. Accordingly, we vacate the sentence and remand for

the district court to clarify the term of supervised release imposed on Count 1.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.