Petition for Writ of Certiorari — Lerone Bernard Butler, Petitioner v. United States

No.

October Term, 2020

IN THE

Supreme Court of the United States

LERONE BUTLER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

APPENDIX

LAW OFFICES OF HOWARD J. SCHUMACHER, P.A.

HOWARD J. SCHUMACHER, ESQUIRE

Attorney for Appellant

One East Broward Boulevard

Suite 700

Ft. Lauderdale, Florida 33301

(954) 356-0477

Florida Bar No: 776335

INDEX

1. United States of America v. Lerone Butler. Case No: 19-11812-B (11" Circuit, September

28, 2020 (Unpublished Opinion) .

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by

U.S. Mail this 22" day of February, 2021 to the SOLICITOR GENERAL OF THE

UNITED STATES, Room 5614, Department of Justice, 950 Pennsylvania Ave., N.,W.,

Washington, D.C 20530-0001.

HOWARD J. SCHUMACHER, Esq.

1 E. Broward Blvd.

Suite 700

Ft. Lauderdale, FL 33301

(954) 356-0477

FL Bar No: 776335

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 19-11812

Non-Argument Calendar

D.C. Docket No. 0:18-cr-60185-BB-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LERONE BERNARD BUTLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(September 28, 2020)

Before WILSON, LAGOA and BLACK, Circuit Judges.

PER CURIAM:

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Lerone Bernard Butler appeals his convictions and 175-month sentence for

one count of conspiracy to possess cocaine and heroin with intent to distribute, in

violation 21 U.S.C. §§ 841(a)(1) and 846, one count of possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and

one count of possession of heroin and fentanyl with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Butler argues there was insufficient

evidence to support a guilty verdict because the confidential informant (CI) in the

investigation—who was also Butler’s brother—was not reliable and the

investigation was flawed. Butler also contends the district court erred in failing to

dismiss the superseding indictment because the Government presented the grand

jury with inaccurate information and because law enforcement mishandled the

investigation. Finally, Butler argues his sentence is substantively unreasonable

because the district court failed to consider certain 18 U.S.C. § 3553(a) factors.

After review, we affirm.

I. DISCUSSION

A. Sufficiency of the Evidence

Butler argues the evidence was insufficient to support his convictions,

largely challenging the reliability of the CI. The record, however, shows there was

sufficient evidence from which “a reasonable fact-finder could have reached a

conclusion of guilt beyond a reasonable doubt” on the conspiracy and possession

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charges for which Butler was convicted. See United States v. Majors, 196 F.3d

1206, 1210 (11th Cir. 1999) (providing sufficiency of the evidence is a question of

law that we review de novo, viewing the evidence in the light most favorable to the

government and drawing all reasonable inferences and credibility choices in favor

of the government); see also United States v. Ellisor, 522 F.3d 1255, 1271 (11th

Cir. 2008) (stating “the question is whether reasonable minds could have found

guilt beyond a reasonable doubt, not whether reasonable minds must have found

guilt beyond a reasonable doubt”).!

To support a conviction for possession of a controlled substance in violation

of 21 U.S.C. § 846, the government must prove that the defendant knowingly

possessed a controlled substance with intent to distribute it. United States v.

Harris, 20 F.3d 445, 453 (11th Cir. 1994). Count 2 of the superseding indictment,

for possession of cocaine with intent to distribute, arose from a December 17, 2014

transaction in which the CI purchased cocaine from Butler’s codefendant Larry

Weems. At trial, the Government presented testimony from a law enforcement

officer, along with audio and video recordings, showing the CI contacted Butler to

' When a defendant moves for judgment of acquittal at the close of the government’s case

and the motion is denied, and the defendant then presents evidence and fails to renew the motion,

any objection to the sufficiency of the evidence is deemed waived, and our review is for a

manifest miscarriage of justice. See United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir.

1998). After calling a single witness—the Government’s case agent—to ask about a statement

made by the last witness to testify, Butler did not renew his motion for judgment of acquittal. We

do not address whether the manifest miscarriage of justice standard applies here because Butler’s

sufficiency of the evidence challenge fails even under a de novo standard of review.

3

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purchase drugs, Butler facilitated the transaction between the CI and Weems, the

CI purchased cocaine from Weems, and Butler spoke to the CI during and after the

transaction to confirm the deal was going as planned. Count 3 of the superseding

indictment, for possession of heroin and fentanyl with intent to distribute, was

based on a February 3, 2016 transaction in which the CI purchased heroin from

Butler and his codefendant Juan Dixon. Here, the Government presented

testimony from an FBI special agent, again supported by audio and video

recordings, showing the CI contacted Butler and Dixon to purchase heroin, met

with them, gave Butler money, and obtained heroin. With respect to both

transactions, law enforcement officers also testified the CI was searched for

contraband ahead of time. On this evidence, viewed in the light most favorable to

the Government, a “reasonable fact-finder could have reached a conclusion of guilt

beyond a reasonable doubt” as to both possession counts. See Majors, 196 F.3d at

1210.

To support a conviction for conspiracy to distribute a controlled substance in

violation of 21 U.S.C. § 846, the government must prove that: (1) a conspiracy

existed; (2) the defendant knew of the essential objectives of the conspiracy; and

(3) the defendant knowingly and voluntarily participated in the conspiracy. See

Harris, 20 F.3d at 452. To establish a conspiracy, “the government need not

demonstrate the existence of a formal agreement, but may instead demonstrate by

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circumstantial evidence a meeting of the minds to commit an unlawful act.”

United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (internal citation and

quotation marks omitted). Count 1 of the superseding indictment charged Butler

with conspiracy to distribute cocaine, heroin, and fentanyl from May 2013 to

November 2016. In addition to the December 2014 and February 2016

transactions that Butler carried out with Weems and Dixon, the Government

presented evidence of additional transactions involving Butler and other

coconspirators, including the attempted purchase of four kilograms of cocaine in

Orlando in 2013. With respect to this transaction, a law enforcement officer and

Orlando CI placed Butler on the scene, and the Orlando CI testified that another

coconspirator planned to purchase drugs on Butler’s behalf. The Government also

presented numerous recordings in which Butler discussed his suppliers, the price

and quality of drugs, and the involvement of Weems and other individuals in drug

trafficking activity. Based on this evidence, viewed in the light most favorable to

the Government, a reasonable jury could have found Butler guilty, beyond a

reasonable doubt, of conspiring to possess cocaine and heroin with intent to

distribute.”

On appeal, Butler mainly attacks the Cl’s reliability, arguing that the CI was

2 The jury found Butler conspired to possess cocaine and heroin with intent to distribute,

but no fentanyl.

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a drug user who was paid to participate in the investigation. Numerous details cast

doubt on his credibility, Butler contends, including that the CI did not follow

instructions from law enforcement and had skimmed drugs on at least two

occasions. Relatedly, he argues the investigation was flawed, as illustrated by law

enforcement’s handling of and reliance on the CI. That the CI’s wife was armed

during a meeting with Butler also shows confidential sources were not properly

searched, Butler contends. Butler’s arguments do not establish the evidence was

insufficient to support his convictions. At trial, the jury heard testimony and crossexamination regarding the CI and the investigation procedures. It was free to

reject Butler’s challenges to the credibility of the CI and the propriety of the

investigation. See Majors, 196 F.3d at 1210 (providing the jury is free to choose

among reasonable constructions of the evidence); United States v. Flores, 572 F.3d

1254, 1263 (11th Cir. 2009) (providing credibility determinations are left to the

jury and a verdict will not be disturbed on appeal unless testimony is “incredible as

a matter of law,” relating to facts that could not have been observed or events that

could not have occurred).

B. Motion to Dismiss the Superseding Indictment

A district court may dismiss an indictment obtained in violation of the

Constitution or laws of the United States or, pursuant to its supervisory power,

when there is “an abuse of the grand jury process such as perjury or government

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misconduct.” See United States v. Pabian, 704 F.2d 1533, 1536 (11th Cir. 1983);

United States v. DiBernardo, 775 F.2d 1470, 1475 (11th Cir. 1985). In either case,

the defendant must show prejudice. See Pabian, 704 F.2d at 1540; Bank of Nova

Scotia v. United States, 487 U.S. 250, 255 (1988). When a motion to dismiss an

indictment is based on government misconduct that occurred during a grand jury

eee

proceeding, the motion will be granted only when the misconduct “‘substantially

influenced the grand jury’s decision to indict’ or when there is ‘grave doubt that

the decision to indict was free from the substantial influence of such violations.”

United States v. Cavallo, 790 F.3d 1202, 1219 (11th Cir. 2015) (quoting Bank of

Nova Scotia, 487 U.S. at 256). A constitutional violation occurs when law

enforcement’s technique is “so outrageous that it is fundamentally unfair and

‘shocking to the universal sense of justice mandated by the Due Process Clause of

the Fifth Amendment.’” United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.

1987) (quoting United States v. Russell, 411 U.S. 423, 432 (1973)). Such conduct

is evaluated under the totality of the circumstances. Jd.

The district court did not abuse its discretion in denying Butler’s motion to

dismiss the superseding indictment. See Cavallo, 790 F.3d at 1219 (providing the

denial of a motion to dismiss an indictment is reviewed for an abuse of discretion,

but issues of law are reviewed de novo). Butler moved to dismiss the superseding

indictment on Fifth Amendment due process grounds, arguing the grand jury was

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not informed that the CI’s wife was not searched for weapons or contraband prior

to her meetings with Butler and could have been the actual source of narcotics.

This alleged misconduct fails to show prejudice, as no drugs were exchanged on

the two occasions referenced in the motion involving the CI’s wife, and the record

does not indicate the CI’s wife was present for any of the drug transactions listed in

the superseding indictment or presented at trial. In addition, the Government

submitted evidence the CI was searched before any controlled purchases and was

consistently recorded and surveilled.

Butler also argued the investigation lacked oversight, and law enforcement

officers knew the CI was a drug user who wanted to entrap Butler into possessing a

firearm so he could be charged with another offense. Under the totality of the

circumstances, however, this conduct falls short of being so outrageous as to be

“fundamentally unfair and shocking to the universal sense of justice mandated by

the Due Process Clause of the Fifth Amendment.” Ofshe, 817 F.2d at 1516

(quotation marks omitted). The district court therefore did not abuse its discretion

in denying Butler’s motion to dismiss the superseding indictment.

C. Substantive Reasonableness

On substantive reasonableness review, we will vacate a sentence “only if we

are left with the definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

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that lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

marks omitted). A defendant challenging his sentence bears the burden of

establishing that it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378

(1 1th Cir. 2010).

The district court must impose a sentence that is “sufficient, but not greater

than necessary, to comply with the purposes” in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, and protect the public. 18 U.S.C.

§ 3553(a)(2). The court must also consider factors including the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the guideline range, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Jd.

§ 3553(a)(1), (3)-(7).

Butler’s sentence is not substantively unreasonable under the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007) (providing the

substantive reasonableness of a sentence is reviewed for an abuse of discretion in

light of the totality of the circumstances). Butler contends the district court failed

to consider his physical health, the age of a prior conviction, the disparity between

his sentence and those of his codefendants, and the fact he never contacted the CI

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other than when he was contacted first. The record shows, however, that the court

invited Butler to address the § 3553(a) factors he believed were relevant and

considered Butler’s arguments. In imposing the sentence, the court specifically

noted Butler’s physical injuries had not prevented him from committing the

underlying crimes, Butler’s prior conviction for similar drug trafficking activity

had not served as a significant deterrent, and Butler’s codefendants had played

different roles than he did.

While the district court took into account the mitigating circumstances that

Butler presented, it ultimately assigned greater weight to factors such as

deterrence, punishment, and the need to promote respect for the law. Doing so was

not an abuse of discretion. See United States v. Rosales-Bruno, 789 F.3d 1249,

1254 (11th Cir. 2015) (providing the weight assigned to a particular sentencing

factor lies within the sound discretion of the district court); see Jrey, 612 F.3d at

1189 (stating a district court abuses its discretion when it “(1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors”) (quotation marks omitted). That

Butler’s sentence falls well below the statutory maximum term of 240 months’

imprisonment and was within the guideline range are further indications of its

reasonableness. See United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014)

10

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(stating a sentence well below the statutory maximum penalty indicates

reasonableness and we will ordinarily expect a within-guidelines sentence to be

reasonable).

II. CONCLUSION

For the reasons above, the evidence was sufficient to support Butler’s

convictions, and the district court did not abuse its discretion in denying Butler’s

motion to dismiss the superseding indictment or in sentencing Butler to a term of

175 months’ imprisonment. We therefore affirm Butler’s convictions and

_ Sentence.

AFFIRMED.

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