The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 30, 2008
No. 07-12107 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00256-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAYICO ALPHONSO GOLDEN,
a.k.a. Majico Golden,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 30, 2008)
Before BIRCH and FAY, Circuit Judges, and HINKLE,* District Judge.
PER CURIAM:
*
Honorable Robert L. Hinkle, United States District Chief Judge for the Northern District
of Florida, sitting by designation.
Mayico Alphonso Golden appeals his conviction and 90-month sentence for
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Golden argues that (1) his plea was either conditional or not knowing and
voluntary and that he ought to be able to appeal the court’s ruling as to his
entrapment-by-estoppel defense; (2) the court erred in considering the credibility
of his testimony regarding his entrapment-by-estoppel defense at sentencing; and
(3) the court further erred in enhancing his sentence based on obstruction of justice
and failure to accept responsibility. We AFFIRM.
I. BACKGROUND
A federal grand jury charged that Golden, a convicted felon, knowingly
possessed a firearm on 27 December 2005. In the course of the case, the
government filed a motion in limine, seeking to prevent Golden from arguing that
the police acted improperly toward him. Golden opposed the government’s
request, to the extent that it would prevent him from demonstrating that his state
probation officer had authorized him to sell the gun in question in order to pay
down his outstanding state fines,1 and he requested a jury charge on entrapment-
by-estoppel. Partially granting the government’s motion, the district court
1
At the time Golden was found in possession of the firearm, he was on probation for driving
with a suspended license, no proof of insurance, operating a vehicle with an improper tag, and loud
music, for which he was required to pay fines.
2
determined that Golden’s argument “amount[ed] to an irrelevant ‘mistake of law’
defense,” and held that evidence of the state probation officer’s statements to
Golden was inadmissable under Federal Rule of Evidence 402, because it was not
relevant. R1-39 at 2.
Based on the district court’s ruling, and under the assumption that the court
also would deny his requested jury instruction on entrapment by estoppel, Golden
entered into a plea agreement with the government. The plea agreement did not
provide that he could appeal the district court’s order denying the entrapment-by-
estoppel defense. During the plea hearing, discussion of appeal was limited to the
following. In the course of explaining Golden’s rights prior to a plea, the district
court told Golden that many prisoners receive the assistance of a jail house lawyer
in filing “motion[s] for an appeal,” to which Golden replied “I’m not going to
follow with that.” R2 at 25. The court also told Golden that his chances of
winning an appeal were not very good, and Golden replied, “Yes, sir. I wasn’t even
going to waste your time with nothing like that, sir.” Id. The district court,
nevertheless, informed Golden that he did have the right to an appeal.
At the same hearing, Golden testified to the following. On 27 December
2005, he received a call from his state probation officer, who told him to bring in
$500, or she would have him arrested. Later that day, Golden and his mother were
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cleaning their house, and they discovered a rifle in a closet. Golden called his
probation officer and asked her to come pick it up, but she told him to sell the rifle
and use the money towards his outstanding fines. Golden took the rifle to a
pawnshop, where he informed the pawnshop employee that he was a convicted
felon. The employee told Golden that the pawnshop could not buy the rifle unless
it obtained permission from Golden’s probation officer. Golden called his
probation officer, who again gave him permission to sell the gun. He sold the rifle
and took the $25 to his probation officer. Based upon Golden’s testimony, the
district court found that there was a factual basis for the plea and accepted it.
Following Golden’s guilty plea, the district court entered a written order,
clarifying its earlier ruling on the government’s motion in limine. Noting that
entrapment by estoppel is an exception to the general rule that ignorance of the law
is no defense, it nevertheless found that the exception was not available to Golden
under Eleventh Circuit precedent, because it was his state probation officer, rather
than a federal agent, who had erroneously told him to sell the gun.
Notwithstanding this ruling, the court stated that, “[i]f Golden’s allegations are true
. . . it hardly seems correct to charge him with a crime,” as “state probation officers
act as quasi-liaisons to the federal criminal system.” R1-42.
4
The presentence investigation report (“PSI”) calculated Golden’s total
adjusted offense level as 22, which included a two-level enhancement, pursuant to
U.S.S.G. § 3C1.1 (2006), for obstruction of justice, based on the probation
officer’s conclusion that Golden had perjured himself during the plea hearing when
he testified that his state probation officer had given him permission to sell the gun.
For the same reason, the probation officer concluded that Golden was not entitled
to an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1. Golden
objected to both of these aspects of the calculation.
At the sentencing hearing, Golden first argued that it was a due process
violation for the district court to hear evidence on the issue of whether his state
probation officer had given him permission to sell the gun after the court had ruled
that the evidence was inadmissable during the guilt phase. The court, however,
heard the evidence.
Golden’s state probation officer testified that she had not called Golden on
the morning of 27 December 2005. She also stated that Golden had not called her
at any time during that day, and that she had never given him permission to sell a
gun. The officer did confirm that Golden made a $25 payment that afternoon.
Finally, she confirmed that it was her responsibility to report probationers who
violated the law, whether state or federal. The pawnshop employee testified that he
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did not remember the transaction with Golden, but that he would have remembered
if someone had come in with a firearm and stated that he was a convicted felon,
since that would have been such an unusual occurrence.
Golden testified, repeating his previous account of the events of 27
December. He added that, while he was in the pawnshop, he had actually made
three calls to his probation officer: (1) the first call went to the probation officer’s
answering machine; (2) the second call was dropped; and (3) during the third call,
he talked to the officer, who gave him permission to sell the gun. He further
testified that, as he was leaving the pawnshop, he had called his probation officer
once again to let her know that he was bringing the $25. Golden introduced the
phone records for his cell phone, which showed that he had called his probation
officer’s office several times on 27 December 2005, around the times he testified
that he had called her.
The district court found the testimony of the pawnshop employee and the
probation officer more credible than Golden’s, and it ruled that Golden wilfully
made materially false statements to the court. More specifically, the court stated
that it found the pawnshop employee to be “very believable, very credible” and
Golden to be very “devious” and “glib.” R3 at 128, 129. The district court then
sentenced Golden to 90 months in prison and a $2,000 fine.
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II. DISCUSSION
A. Entrapment-by-estoppel Defense
On appeal, Golden first argues that the district court erred in denying his
request to charge on entrapment by estoppel, despite his having entered an
unconditional guilty plea. More specifically, he argues that, based on his Rule 11
plea colloquy, he reasonably believed that he had preserved the entrapment-by-
estoppel issue for appeal, and thus, pursuant to United States v. Pierre, 120 F.3d
1153 (11th Cir. 1997), his plea had not been knowing and voluntary.
Federal Rule of Criminal Procedure 11(a)(2) states: “With the consent of the
court and the government, a defendant may enter a conditional plea of guilty or
nolo contendere, reserving in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2).
We have held that Rule 11(a)(2) requires express consent from the government
before a defendant can conditionally plead guilty. Pierre, 120 F.3d at 1156.
Silence by the government, following a district court’s statement, during a Rule 11
hearing, that the defendant has the right to appeal, is insufficient to preserve the
issue. Id. However, if a defendant enters a guilty plea on the reasonable, but
mistaken, belief that he has preserved an issue for appeal because of the district
court’s statements, then the defendant’s “plea was, as a matter of law, not knowing
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and voluntary,” and the defendant’s conviction must be vacated and remanded for
him to plead anew. Id. at 1156.
In Pierre, the issue was whether the defendant had preserved a challenge
based on speedy trial issues. Pierre’s plea colloquy, “unequivocally indicate[d]
that Pierre intended to plead guilty on the condition that – and only after having
been assured by the district court judge that – he had preserved the speedy trial
issues for appeal.” Id. at 1155. Additionally, Pierre’s counsel also explicitly tried
to preserve the issue during the plea hearing. Id.
Golden’s plea colloquy, on the other hand, contains no express
representations, by the district court, Golden, or his counsel, that Golden, in
entering his guilty plea, intended to or was preserving the entrapment-by-estoppel
issue for appeal. Instead, Golden and his counsel stated only that Golden was
pleading guilty because of the district court’s denial of his request to charge, and
that Golden disagreed with the court’s ruling. The district court then informed
Golden, “I don’t know whether you have other defenses. But if you plead guilty,
you are giving up those defenses.” R2-46 at 24. When the district court raised the
prospect of an appeal, Golden said, “I’m not going to follow with that” and “I
wasn’t even going to waste your time with nothing like that, sir.” Id. at 25. Thus,
Golden, if anything, indicated that he was not going to appeal. Further, the district
8
court never affirmatively advised Golden that he was preserving his entrapment-
by-estoppel issue.
In United States v. Lejarde-Rada, we similarly distinguished Pierre,
observing that, “[Pierre] involved a defendant who not only reasonably believed
but was also affirmatively misinformed by the court he would be allowed to appeal
an issue that his guilty plea waived. By contrast, Lejarde-Rada was not
misinformed of anything, and there is no indication that he reasonably believed
that he could appeal the court’s refusal to depart downward.” 319 F.3d 1288, 1291
(11th Cir. 2003) (per curiam) (citation omitted). As in Lejarde-Rada, Golden’s
case is materially different from Pierre, and Golden’s reliance thereupon is to no
avail. Golden knowingly, voluntarily, and effectively waived his right to appeal
the district court’s ruling as to an entrapment-by-estoppel defense.2
B. Due Process
Golden next argues that the district court violated his due process rights by
denying him the right to make an entrapment-by-estoppel defense, but allowing the
government to present evidence, during sentencing, that he had lied to the court
2
In any event, as the district court properly noted, Golden’s entrapment-by-estoppel issue
lacks merit under our binding precedent. See United States v. Funches, 135 F.3d 1405, 1407 (11th
Cir. 1998); United States v. Bruscantini, 761 F.2d 640, 641-42 (11th Cir. 1985), superseded by
statute on other grounds, see United States v. Fernandez, 234 F.3d 1345, 1347 n.2 (11th Cir. 2000)
(per curiam).
9
regarding the facts that he claimed established entrapment by estoppel. Golden
maintains that, if the evidence on this issue was legally irrelevant during the guilt
phase of his proceedings, it also was irrelevant during sentencing. Additionally,
Golden asserts, based on United States v. Thompson, 25 F.3d 1558 (11th Cir.
1994), that a jury should make the findings of fact regarding an entrapment-by-
estoppel defense, not the district court.
We review constitutional challenges – such as a due process argument – de
novo. United States v. O’Keefe, 461 F.3d 1338, 1346 (11th Cir. 2006), cert.
denied, __ U.S. __, 127 S. Ct. 1308 (2007). In the Eleventh Circuit, an
entrapment-by-estoppel defense is only available when the defendant has relied
upon a federal official’s misstatement of the law. United States v. Funches, 135
F.3d 1405, 1407 (11th Cir. 1998). However, a district court may “consider any
information . . . regardless of its admissibility at trial, in determining whether
factors exist that would enhance a defendant’s sentence, provided that the evidence
has sufficient indicia of reliability, the court makes explicit findings of fact as to
credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005). Additionally, according to
the Sentencing Guidelines, a court may consider any relevant information “without
regard to its admissibility under the rules of evidence” when resolving disputed
10
facts important to a sentencing determination. U.S.S.G. § 6A1.3(a), p.s. The
Guidelines allow for a two-level enhancement if the defendant willfully obstructs
or impedes justice. U.S.S.G. § 3C1.1. An obstruction of justice enhancement is
appropriate when the defendant perjures himself. United States v. Singh, 291 F.3d
756, 762-63 (11th Cir. 2002).
On this point, Golden conflates two separate issues – (1) whether he could
raise an entrapment-by-estoppel defense, and (2) whether he perjured himself
during the Rule 11 hearing – because the evidence is the same for both. As noted,
the district court correctly ruled that the entrapment-by-estoppel defense was
unavailable to Golden, thus making the issue of whether or not his state probation
officer gave him permission to sell the gun irrelevant during the conviction phase.
See Funches, 135 F.3d at 1407. This did not, however, make the evidence
irrelevant during the sentencing phase because there was a different issue under
consideration: whether Golden had committed perjury. See Baker, 432 F.3d at
1253. This was a relevant issue for the district court to consider during sentencing
because, if Golden had lied, an obstruction of justice enhancement might be
appropriate. See Baker, 432 F.3d at 1253, Singh, 291 F.3d at 763. Additionally, at
the sentencing hearing, the district court made explicit findings that the probation
officer and pawnshop employee were more credible than Golden. Further, Golden
11
had the opportunity to testify on his own behalf, to introduce phone records to
support his claims, and to cross-examine the probation officer and pawnshop
employee. See Baker, 432 F.3d at 1253; R3 at 15-38, 44-52, 55-71, 130.
Accordingly, we see no substantive or procedural due process problem.
Finally, Thompson does not support Golden’s due process claim. In
Thompson, the defendant sought to raise an entrapment-by-estoppel defense,
claiming that federal agents gave him immunity to possess a firearm. 25 F.3d at
1560-62. Following a motion by the government to prevent Thompson from
raising the defense, the district court heard Thompson’s testimony in camera but
then ruled that he could not raise the defense because entrapment by estoppel was
not a permissible defense in § 922 cases. Id. at 1563. We concluded that, if
proffered testimony as to an entrapment-by-estoppel defense has any relevance to
such a defense, it is for the jury to hear and weigh the evidence – in that case, to
decide whether the government’s grant of immunity actually included allowing the
convicted felon to possess a firearm. Id. at 1564, 1565.
First, unlike in Thompson, even if Golden’s testimony were all true, because
his probation officer was a state rather than a federal agent, his testimony was
irrelevant to an entrapment-by-estoppel defense. Second, the issue here is whether
the district court could determine Golden’s credibility in deciding if an obstruction-
12
of-justice enhancement was appropriate. A district court may make credibility
determinations as they relate to sentencing issues. See Baker, 432 F.3d at 1253.
Accordingly, we conclude that the district court did not violate Golden’s due
process rights in this respect either.
C. Obstruction of Justice and Acceptance of Responsibility
Golden next argues that, even if it was not a due process violation for the
district court to consider evidence during sentencing regarding whether or not he
had permission to sell the gun, the evidence was not material to any sentencing
issue and should not have been considered as grounds for finding obstruction of
justice or denying him a reduction for acceptance of responsibility. We review the
district court’s interpretation of the Guidelines de novo and its factual findings for
clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). The
district court’s determination regarding the propriety of an obstruction-of-justice
enhancement or an acceptance-of-responsibility reduction is a question of fact
reviewed for clear error. Singh, 291 F.3d at 763. Additionally, we defer to a
district court’s credibility finding based on its having had the opportunity to view
the witnesses as they testified. See id. at 763-64.
The Guidelines provide for a two-level enhancement when a defendant
willfully obstructs or impedes justice with respect to sentencing, and the
13
obstructive conduct relates to an offense for which the defendant was convicted.
U.S.S.G. § 3C1.1. The comments to § 3C1.1 state that committing perjury and
providing materially false statements to a judge are grounds for applying the
enhancement. Id. comment. (n.4(b), (f)). Under § 3C1.1, “the threshold for
materiality is ‘conspicuously low.’” United States v. Massey, 443 F.3d 814, 821
(11th Cir. 2006) (citation omitted). On the other hand, as a matter of law, a
defendant’s post-conviction and pre-sentence assertions of innocence “cannot be
material to sentencing if the assertions’ truth [would] require[] the jury’s verdict to
be in error.” United States v. Gardiner, 955 F.2d 1492, 1499-1500 (11th Cir.
1992). Finally, as a general rule, if the district court finds that the defendant
obstructed justice, then a two-level decrease under § 3E1.1 for acceptance of
responsibility is unavailable. U.S.S.G. § 3E1.1 comment. (n. 4); Singh, 291 F.3d at
765.
The district court first concluded that Golden was not credible. By
extension, Golden committed perjury by falsely testifying that he had permission
from his probation officer to sell the gun. Golden’s false statements were material
because, if the district court had believed him, it likely would have imposed a
much shorter sentence, given the court’s order following the Rule 11 hearing, in
which it stated that it did not seem correct even to charge Golden if he were telling
14
the truth. This is sufficient to satisfy the low threshold for materiality. See
Massey, 443 F.3d at 821. Because Golden’s probation officer was a state rather
than a federal agent, Golden’s assertions, even if true, would not have required a
different verdict, and thus are not disqualified on that ground. See Gardiner, 955
F.2d at 1499-1500. The district court, therefore, did not clearly err in applying a
two-level obstruction of justice enhancement. Likewise the district court did not
clearly err in not applying a two-level, acceptance-of-responsibility reduction since
Golden obstructed justice. See Singh, 291 F.3d at 765.
III. CONCLUSION
Golden appeals his conviction and sentence for possession of a firearm by a
convicted felon. First, because Golden did not enter a conditional guilty plea, and
we find that his plea was knowing and voluntary, he has waived the right to raise
the entrapment-by-estoppel defense on appeal. Accordingly, we AFFIRM his
conviction. Second, the district court did not err in considering Golden’s
credibility as to whether his state probation officer had given him permission to
sell the gun, in applying an enhancement for obstruction of justice, or in refusing to
reduce for acceptance of responsibility because, regardless of the relevancy of this
evidence as to his guilt, whether Golden lied was material to sentencing.
Accordingly, we also AFFIRM his sentence.
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