United States v. Timothy Terrill Carpenter

457 F. App'x 889
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 10, 2012
Docket09-10684
StatusUnpublished
Cited by1 cases

This text of 457 F. App'x 889 (United States v. Timothy Terrill Carpenter) 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. Timothy Terrill Carpenter, 457 F. App'x 889 (11th Cir. 2012).

Opinion

*892 PER CURIAM:

After review and oral argument, we AFFIRM the convictions of each appellant. We also AFFIRM the sentences of Boris Vernard Agee (“Agee”) and Timothy Ter-rill Carpenter (“Carpenter”), but VACATE the sentence of Jared Kenyatta Calhoun (“Calhoun”) and REMAND for resentenc-ing in a manner consistent with this opinion.

This appeal stems from a multi-defen-dant criminal case involving drug trafficking and counterfeiting offenses. Specifically, in April 2008, a federal grand jury issued a 55-count superceding indictment against 10 defendants involving crimes committed in Birmingham, Alabama. Five defendants, including the four on appeal here, were tried together. An additional defendant, Courtney Campbell, pled guilty and testified on behalf of the government. After the first trial ended in a mistrial, a jury convicted the four defendants and acquitted the fifth defendant. This appeal followed.

Appellants raise numerous arguments on appeal. The court will address each appellant’s arguments.

I. Johnson

At the second trial, Solomon Grady Johnson (“Johnson”) was convicted of multiple drug trafficking counts, including conspiracy to distribute powder and crack cocaine (Count 1), 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, possession with intent to distribute powder cocaine (Count 5), 21 U.S.C. § 841(a)(1), (b)(1)(C), distribution of crack cocaine (Counts 7 & 9), 21 U.S.C. § 841(a)(1), (b)(1)(C), and unlawful use of a telephone (Counts 38, 39, 44-46 & 51), 21 U.S.C. § 843(b). He was sentenced to 360 months in prison on counts 1, 7 and 9. He received lesser concurrent sentences on the remaining counts. On appeal, Johnson argues that the trial court erred in overruling his motion to dismiss based on double jeopardy grounds.

The facts relevant to this issue are few. After the jury was empaneled and sworn for the first trial, the trial court realized that the trial was going to take longer than had been originally anticipated. Because of personal commitments, the court informed the parties and jury that there would be a two-week continuance in the middle of trial. Several jurors claimed that they would face a hardship from the continuance, leaving only 11 jurors to hear the case. After considering them options, defendants asked the court to declare a mistrial. The court did so, and the matter was then reassigned to a new trial judge and a second trial was held. On these facts, Johnson argues that he was subjected to unconstitutional multiple prosecutions.

Ordinarily, challenges related to double jeopardy are reviewed de novo. United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir.1990). “We are precluded, however, from reviewing an issue raised on appeal if it has been waived through the doctrine of invited error.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.2009); see also United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir.2003) (noting that no manifestation of review is available “where a criminal defendant ‘invites’ the constitutional error of which he complains”).

Although Johnson recognizes that invited error generally precludes appellate review, he contends that the trial court’s handling of the first trial’s schedule “provoke[d]” a mistrial request. See Lee v. United States, 432 U.S. 23, 34, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977). Such an argument only has value where a defendant can show that the trial court was “motivated by bad faith” or acted “to harass or preju *893 dice” the defendant. Id. at 33, 97 S.Ct. 2141. Neither is evident here. Accordingly, Johnson’s double jeopardy argument has been waived and his conviction is affirmed.

II. Agee

Agee was convicted of several offenses, including conspiracy to utter counterfeited securities (Count 12), 18 U.S.C. § 371. For his role, he was sentenced to 22 months in prison followed by three years of supervised release. On appeal, Agee argues that the sentencing judge erred in imposing a sentence that was substantially longer than those of co-defendants who pled guilty and who were involved in similar charged conduct. 1

We review the reasonableness of a sentence under the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Specifically, “[w]e must evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C. § ] 3553(a)” while recognizing that “there is a range of reasonable sentences from which the district court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). The party challenging the sentence “bears the burden of establishing that the sentence is unreasonable in light of [the] record and the factors in section 3553(a).” Id. Although a sentence within the advisory guidelines range is not per se reasonable, we would ordinarily expect such a sentence to be reasonable. Id.

The purposes of sentencing referenced in § 3553(a) include the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to deter criminal conduct, and to protect the public from recidivism. 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the nature of the circumstances of the offense and the history of the defendant, the kinds of sentences available, the applicable guidelines range, pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparity, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). The weight accorded to these factors is a matter within the sentencing court’s discretion. United States v. Clay, 483 F.3d 739, 743 (11th Cir.2007).

Agee contends that his sentence is substantially higher than that of similar co-defendants such that it is unreasonable. Upon review of the record, we find no error. Specifically, we note that the sentencing court found that Agee was more culpable than the co-defendants who received lower sentences.

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Bluebook (online)
457 F. App'x 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-terrill-carpenter-ca11-2012.