United States v. Leigh Jesse Quinto

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 5, 2008

No. 07-11011 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 06-20319-CR-UUB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEIGH JESSE QUINTO,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 5, 2008)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

Leigh Jesse Quinto, proceeding pro se, appeals his conviction and 240-

month sentence for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C). First, Quinto argues that the district court lacked subject matter

jurisdiction over his offense of conviction, asserting that the offenses codified in

Title 21 of the United States Code do not constitute federal crimes “cognizable by

[the district court] pursuant to Title 18.” Quinto also contends that his Fifth

Amendment grand jury right was violated, asserting that the evidence presented to

the grand jury was falsified, and notes that his requests for grand jury materials to

support this claim were denied. Second, Quinto argues that his 240-month

sentence was both procedurally and substantively unreasonable.1 Quinto asserts

that the district court incorrectly calculated his advisory sentencing range as if he

had been convicted of conspiracy, and failed to consider the sentencing factors

enumerated in 18 U.S.C. § 3553(a) in fashioning his sentence. Last, Quinto argues

that he was denied his Sixth Amendment right to effective assistance of counsel,

asserting that his trial counsel made numerous mistakes and had a personal conflict

of interest because counsel’s son died of a drug overdose.

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We decline to address Quinto’s remaining argument concerning the accuracy of the

district court’s order of judgment and conviction, which is without merit. Additionally, we

decline to address Quinto’s argument that the district court erred by sentencing him as a career

offender absent a notice of prior convictions under 21 U.S.C. § 851 , which was raised for the first

time in his reply brief. See United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006).

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For the reasons set forth more fully below, we affirm Quinto’s conviction

and sentence.

I.

A. District Court Subject Matter Jurisdiction

We will examine a district court’s jurisdiction over an action even when the

district court does not address those jurisdictional issues. See United States v.

Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (per curiam) (acknowledging

that “a party may raise jurisdiction at any time during the pendency of the

proceedings”). We review questions of subject matter jurisdiction de novo. Id.

Generally, a motion alleging a defect in the indictment must be made before trial,

unless the alleged defect is a failure to invoke the district court’s jurisdiction or to

state an offense. Fed.R.Crim.P. 12(b)(3)(B).

“Congress has provided the district courts with jurisdiction . . . of ‘all

offenses against the laws of the United States.’” Alikhani v. United States, 200

F.3d 732, 734 (11th Cir. 2000) (per curiam) (quoting 18 U.S.C. § 3231). Where an

indictment charges a defendant with violating the laws of the United States, § 3231

provides the district court with subject matter jurisdiction and empowers it to enter

judgment on the indictment. Id. at 734-35.

Quinto’s claim that the district court lacked jurisdiction to adjudicate the

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charged drug offenses is without merit. The indictment charged Quinto and his

codefendants with violations of the laws of the United States: 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A)(ii), and (b)(1)(C). This invoked the district court’s subject

matter jurisdiction under 18 U.S.C. § 3231. Alikhani, 200 F.3d at 734-35.

Accordingly, we affirm Quinto’s conviction in this respect.

B. Grand Jury Proceedings and Motion for Disclosure of Grand Jury

Materials

We review a district court’s order regarding the disclosure of grand jury

transcripts for an abuse of discretion, keeping in mind that “the district court has

substantial discretion in determining whether grand jury materials should be

released.” United States v. Aisenberg, 358 F.3d 1327, 1338, 1349 (11th Cir. 2004)

(quotation omitted). “It has long been a policy of the law that grand jury

proceedings be kept secret.” Id. at 1346-47. This secrecy principle is codified

under Fed.R.Crim.P. 6(e)(2), which prohibits the disclosure of grand jury material

except in the limited circumstances described in Rule 6(e)(3). Id. at 1347. The

portion of that provision at issue is:

The court may authorize disclosure--at a time, in a manner, and

subject to any other conditions that it directs--of a grand-jury matter:

(i) preliminarily to or in connection with a judicial proceeding;

(ii) at the request of a defendant who shows that a ground may

exist to dismiss the indictment because of a matter that occurred

before the grand jury.

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Fed.R.Crim.P. 6(e)(3)(E)(I) and (ii).

The Supreme Court has held that the Rule 6(e) exceptions apply only when a

party seeking disclosure of grand jury material shows a “particularized need” for

that material. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222,

99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). The Supreme Court explained that a

party meets this standard when he shows “that the material [he] seek[s] is needed

to avoid a possible injustice in another judicial proceeding, that the need for

disclosure is greater than the need for continued secrecy, and that [his] request is

structured to cover only material so needed.” Id. The Supreme Court stated that

“[s]uch a showing must be made even when the grand jury whose transcripts are

sought has concluded its operations.” Id. We have explained that a party meets

the particularized need standard when he shows that “circumstances had created

certain difficulties peculiar to this case, which could be alleviated by access to

specific grand jury material, without doing disproportionate harm to the salutary

purpose of secrecy embodied in the grand jury process.” Aisenberg, 358 F.3d at

1348-49.

Here, Quinto appears to challenge the district court’s denial of his Rule 6(e)

motions for disclosure of grand jury materials based on the contention that those

materials support his claims that evidence presented to the grand jury concerning

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the drug quantity attributable to his conduct was falsified, and that improper

procedures were used to obtain his indictment. Quinto’s general requests for grand

jury materials, however, did not establish the requisite particularized need to merit

disclosure under Rule 6(e). See Douglas Oil Co. of Cal., 441 U.S. at 222, 99 S.Ct.

at 1674. Specifically, Quinto failed to describe any “difficulties peculiar to [his]

case” that merited disclosure, instead presenting unsubstantiated allegations that

the evidence presented before the grand jury was falsified. See Aisenberg, 358

F.3d at 1348-49. We have held that unsubstantiated allegations do not satisfy the

“particularized need” standard. United States v. Cole, 755 F.2d 748, 759 (11th Cir.

1985). Accordingly, because Quinto did not show that he had a particularized need

for the material sought, the district court did not abuse its discretion in denying his

motions. See Aisenberg, 358 F.3d at 1338, 1349. We therefore affirm Quinto’s

conviction in this respect.

II.

We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

Unreasonableness may be procedural, when the court’s procedure does not follow

the requirements set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005), or substantive. See Gall v. United States, ___ U.S. ___,

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128 S.Ct. 586, 597, ___ L.Ed.2d ___ (2007); United States v. Hunt, 459 F.3d 1180,

1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may

be procedurally unreasonable if the district court improperly calculates the

guideline imprisonment range, treats the Guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. Gall, ___ U.S. at ___, 128 S.Ct. at 597.

The Court also has explained that the substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Id. It has suggested that review

for substantive reasonableness under this standard involves inquiring whether the

factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128

S.Ct. at 600.

When imposing a sentence, the district court must first correctly calculate

the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

Second, the district court must consider the following factors to determine a

reasonable sentence:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need 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 deterrence; (4) the need to

protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of

sentences available; (7) the Sentencing Guidelines range; (8) pertinent

policy statements of the Sentencing Commission; (9) the need to

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avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the

§ 3553(a) factors, it is not required to discuss each factor. Id. Instead, we have

held that an explicit acknowledgment that the district court has considered the

defendant’s arguments and the § 3553(a) factors will suffice. United States v.

Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005); see also Rita v. United States, 551

U.S. __, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (holding that the

defendant’s sentence was reasonable when the district court considered the parties’

arguments and provided a reasoned basis for its choice of sentence).

“[T]here is a range of reasonable sentences from which the district court may

choose” and the burden of establishing that the sentence is unreasonable in light of

the record and the § 3553(a) factors lies with the party challenging the sentence.

Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range

is neither per se reasonable, nor entitled to a presumption of reasonableness. See

id. at 786-88; Hunt, 459 F.3d at 1185. However, the Supreme Court has held that,

in reviewing sentences for reasonableness under 18 U.S.C. § 3553(a), a federal

appellate court may apply a presumption of reasonableness to a district court

sentence imposed within the guideline range. Rita, 551 U.S. at ___, 127 S.Ct. at

2462. Nevertheless, it appears that, even in light of Rita, our previous holdings

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remain intact. United States v. Campbell, 491 F.3d 1306, 1313-14 n.8 (11th Cir.

2007) (restating our holding in Hunt, but noting that “the [Supreme] Court’s

rationale in Rita calls into question our reasons for not affording a presumption of

reasonableness”).

“When the appealing party does not clearly state the grounds for an

objection in the district court, we are limited to reviewing for plain error.” United

States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Under plain error review,

“[a]n appellate court may not correct an error the defendant failed to raise in the

district court unless there is (1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

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

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and

quotations omitted).

With regard to the procedural reasonableness of Quinto’s sentence, the

district court did not plainly err in its sentencing procedure. The record indicates

that the district court correctly calculated the advisory guideline range based on the

conduct related to Quinto’s offense of conviction, and his status as a career

offender. The record reflects that Quinto was at least 18 years old at the time of

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the instant offense and had at least 2 prior felony controlled substance convictions,

which qualified him as a career offender pursuant to U.S.S.G. § 4B1.1, resulting in

an advisory guideline range of 210 to 240 months’ imprisonment based on an

offense level of 32 and a criminal history category of VI. Quinto did not challenge

the validity of any of these convictions at sentencing, and did not object to the

district court’s finding that he qualified as a career offender. The record further

demonstrates that the district court expressly stated that it considered the

sentencing factors set forth in § 3553(a), specifically, Quinto’s personal history and

characteristics, and the need to promote respect for the law. The district court

further considered the parties’ arguments concerning the sentence to be imposed

based on the § 3553(a) factors, and sufficiently explained its reasons for imposing

the sentence. Accordingly, because Quinto failed to satisfy the first prong of the

plain error analysis, we do not address the remaining prongs, and affirm his

sentence in this respect.

Quinto also has not established that his sentence is substantively

unreasonable. See Gall, ___ U.S. at ___, 128 S.Ct. at 597; Hunt, 459 F.3d at 1182

n.3. Quinto’s sentence of 240 months’ imprisonment is within the advisory

guideline range. Moreover, the record indicates that the district court considered

Quinto’s extensive criminal history and the need to promote respect for the law in

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determining that a Guidelines sentence was appropriate. Therefore, the § 3553(a)

factors supported the district court’s sentence, and the district court did not abuse

its discretion. See Gall, ___ U.S. at ___, 128 S.Ct. at 597, 601-02. Accordingly,

Quinto’s sentence is reasonable, and we affirm as to this issue.

III.

We generally do not consider claims of ineffective assistance of counsel for

the first time on direct appeal unless the record is sufficiently developed as to that

issue. United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000); see also

Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d

714 (2003). We will, however, consider an ineffective-assistance claim on direct

appeal “if the record is sufficiently developed.” United States v. Bender, 290 F.3d

1279, 1284 (11th Cir. 2002). Additionally, the Supreme Court has articulated that,

while “[t]here may be cases in which trial counsel’s ineffectiveness is so apparent

from the record that appellate counsel will consider it advisable to raise the issue

on direct appeal,” generally, these claims are best raised in a 28 U.S.C. § 2255

motion. Massaro, 538 U.S. at 504-09, 123 S.Ct. at 1694-96. The Court reasoned

that the evidence introduced at trial is devoted to guilt or innocence, and, therefore,

the record on direct appeal will not disclose many of the facts necessary to make a

determination regarding the effectiveness of counsel. Id. at 504-06, 123 S.Ct. at

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1694-95. Further, the Court noted that there is no way to determine, based solely

on the trial record, whether counsel’s actions or omissions were the result of trial

strategy, as testimony from counsel is usually necessary. Id.

In this case, Quinto did not raise the ineffective assistance issue below.

Therefore, the district court did not have an opportunity to develop a factual record

for consideration by this Court. See Tyndale, 209 F.3d at 1294; see also Massaro,

538 U.S. at 504-06, 123 S.Ct. at 1694-95. Moreover, even if the record were

sufficiently developed, Quinto did not provide any analysis, citations to the record,

or citations to any legal authority in his argument before us. Accordingly, we

decline to address this issue.

In light of the foregoing, Quinto’s conviction and sentence are

AFFIRMED.

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