          Case: 17-12737   Date Filed: 10/09/2019   Page: 1 of 12


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                             No. 17-12737
                         Non-Argument Calendar
                       ________________________

              D.C. Docket No. 8:16-cr-00502-JSM-TBM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

PRISCILLA ANN ELLIS,

                                                        Defendant-Appellant.

                       ________________________

                             No. 18-10075
                         Non-Argument Calendar
                       ________________________

              D.C. Docket No. 8:16-cr-00502-JSM-TBM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus
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PRISCILLA ANN ELLIS,

                                                               Defendant-Appellant.


                           ________________________

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

                                  (October 9, 2019)

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

      In March 2017, a federal jury convicted Priscilla Ellis of conspiring to make,

utter, and possess a counterfeit security, in violation of 18 U.S.C. § 371 (Count 1),

two counts of retaliating against a witness, in violation of 18 U.S.C.

§ 1513(a)(1)(A) (Counts 2 and 4), and two counts of using interstate commerce

facilities in the attempted commission of murder-for-hire, in violation of 18 U.S.C.

§ 1958(a). Ellis, proceeding pro se with the assistance of stand-by counsel, argues:

(1) the district court erred in denying her motion to dismiss the superseding

indictment on speedy-trial grounds, and her right to a speedy trial was violated

because she was tried more than 70 days after her initial indictment issued; (2) the

district court erred, at sentencing, by increasing her offense level by four under

U.S.S.G. § 3B1.1(a); and (3) her total sentence is procedurally and substantively



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unreasonable, and violates the Eighth Amendment. We address her contentions in

turn, and affirm her convictions and sentence.

                                  I. DISCUSSION

A. Motion to Dismiss the Superseding Indictment & Speedy Trial Issues

      1. Indictment

      We review a district court’s denial of a motion to dismiss the indictment for

abuse of discretion. United States v. Palomino Garcia, 606 F.3d 1317, 1322 (11th

Cir. 2010). Under the Speedy Trial Act, an indictment must be filed within 30

days from the date of an individual’s arrest. 18 U.S.C. § 3161(b). “If the thirty-

day time limit is not met, the [Speedy Trial] Act entitles the defendant to the

dismissal of the charges contained in the initial complaint.” United States v.

Mathurin, 690 F.3d 1236, 1239 (11th Cir. 2012). However, a superseding

indictment that issues more than 30 days after the arrest, but before the original

indictment is dismissed, does not violate § 3161(b). United States v. Mosquera, 95

F.3d 1012, 1013 (11th Cir. 1996). In Mosquera, we noted:

             [T]he Speedy Trial Act does not guarantee that an
             arrested individual indicted within thirty days of his
             arrest must, in that thirty-day period, be indicted for
             every crime known to the government, failing which he
             may never be charged. In short, the Speedy Trial Act is
             not a statute of limitations.

             . . . [The applicable statute of limitations] specifies the
             time within which an arrested indicted defendant may be


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             charged with additional crimes by superseding
             indictment.

Id. The federal statute of limitations governing non-capital crimes provides

“[e]xcept as otherwise expressly provided by law, no person shall be prosecuted,

tried, or punished for any offense, not capital, unless the indictment is found or the

information is instituted within five years next after such offense shall have been

committed.” 18 U.S.C. § 3282.

      The district court did not err in denying Ellis’s motion to dismiss the

superseding indictment on speedy trial grounds. Our decision in Mosquera

forecloses her argument the Speedy Trial Act prohibited the Government from

lodging a conspiracy charge—the factual predicate of which it may have known

prior to the issuance of the initial indictment—against her in a superseding

indictment. Mosquera, 95 F.3d at 1013. Consistent with that decision, the

Government was not required to indict Ellis for every crime known to it within 30

days of her arrest, and thus it was allowed to bring those charges in the superseding

indictment. Id. The Government’s ability to charge the conspiracy offense in

Count 1 was only circumscribed by 18 U.S.C. § 3282’s five-year limitations

period, and the superseding indictment was filed well within that period.

      Moreover, Ellis’s reliance on the Ninth Circuit’s decision in United States v.

Palomba is misplaced for two reasons. 31 F.3d 1456 (9th Cir. 1994). First, that

decision is not binding in this Circuit. Secondly, in that case, the Government
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initially brought the charge at issue in the complaint, omitted it from the initial

indictment, but then reasserted that same charge in a superseding indictment that

issued three months later. Id. at 1463-64. Here, unlike in Palomba, the

Government did not allege a conspiracy charge in the complaint, and did so for the

first time in the superseding indictment, which issued while the initial indictment

was pending. Under those circumstances, the superseding indictment did not run

afoul of the Speedy Trial Act. Mosquera, 95 F.3d at 1013. Therefore, the district

court did not err in denying Ellis’s motion to dismiss the superseding indictment.

      2. Trial

      “We review a claim under the Speedy Trial Act de novo and review a

district court’s factual determinations on excludable time for clear error.” United

States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002). The Speedy Trial Act

requires the trial of a defendant commence within 70 days from the later of the

filing date of the indictment, or the date the defendant appeared before a judicial

officer of the appropriate court. 18 U.S.C. § 3161(c)(1). A jury trial commences,

for purposes of the Speedy Trial Act, when the district court begins voir dire.

United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir. 1982). The filing of a

superseding indictment does not reset the Speedy Trial Act clock for charges that

were included in the original indictment. United States v. Young, 528 F.3d 1294,

1295-97 (11th Cir. 2008).


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      Certain periods of time, however, are excluded from the calculation of the

70-day period. See 18 U.S.C. § 3161(h). Generally speaking, “the clock is tolled

for pretrial motions and certain other proceedings concerning the defendant per 18

U.S.C. § 3161(h)(1) and also for ends-of-justice continuances per 18 U.S.C.

§ 3161(h)(8)(A).” United States v. Williams, 314 F.3d 552, 556 (11th Cir. 2002).

More specifically, any delay resulting from a pretrial motion is excluded, and this

period runs “from the filing of the motion through the conclusion of the hearing on,

or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). With

respect to a motion for which a hearing is required, the entire period from the filing

of the motion to the hearing on that motion is excluded without reference to

whether that time period was unreasonable. United States v. Davenport, 935 F.2d

1223, 1228 (11th Cir. 1991). If, after the hearing, the court has all of the materials

necessary to rule on the motion, it has the motion under advisement immediately

following the hearing. Id. From that date, any delay reasonably attributable to the

period during which the motion is under advisement by the district court, which

cannot exceed 30 days, is excludable. 18 U.S.C. § 3161(h)(1)(H); Davenport, 935

F.2d at 1228.

      Ellis has failed to show her right to a speedy trial was violated on the basis

she was not tried within 70 days of the date her initial indictment issued. Although

more than 70 days elapsed between the date her initial indictment issued and the


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start of her trial, only 39 days of non-excludable time elapsed during that period.

That is so, because the speedy-trial clock, which began running on November 23,

2016—the day after Ellis’s initial indictment issued, was tolled from (1) November

23, to November 30, 2016, while the Government’s motion to transfer was

pending; (2) December 13 to December 14, 2016, while Ellis’s motion to replace

counsel was pending; (3) December 30, 2016 to January 4, 2017, while Ellis’s

motion to change venue was pending; and (4) January 17 until March 6, 2017,

while a number of tolling motions were pending. Thus, only 39 days of non-

excludable time ran from the day after her initial indictment issued, November 23,

2016, until the start of her trial, March 6, 2017. As such, Ellis’s right to a speedy

trial was not violated in this case. 18 U.S.C. § 3161(c)(1) and (h). Thus, we affirm

her convictions.

B. U.S.S.G. § 3B1.1(a) Increase

      We review a district court’s factual findings, including a defendant’s role in

a crime, for clear error. United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir.

2001). We review the district court’s application of the Sentencing Guidelines to

the facts de novo. Id.

      A four-level sentencing enhancement applies if the defendant was an

organizer or leader of a criminal activity that involved five or more participants or

was otherwise extensive. U.S.S.G. § 3B1.1(a). Evidence the defendant recruited


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and instructed participants in the conspiracy is sufficient to support a leadership

enhancement. United States v. Caraballo, 595 F.3d 1214, 1231 (11th Cir. 2010).

“Section 3B1.1 requires the exercise of some authority in the organization, the

exertion of some degree of control, influence, or leadership.” United States v.

Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (quotation omitted).

      Further, “[t]he determination of a defendant’s role in the offense is to be

made on the basis of all conduct within the scope of § 1B1.3 (Relevant Conduct),

i.e., all conduct included under § 1B1.3(a)(1)-(4), and not solely on the basis of

elements and acts cited in the count of conviction.” U.S.S.G. Ch. 3, Pt. B,

Introductory Commentary. Under § 1B1.3(a), relevant conduct includes “all acts

and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant,” and all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertaken criminal activity

that occurred during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility

for that offense.

      The district court did not clearly err in applying a four-level enhancement to

Ellis’s base offense level under § 3B1.1(a). First, Ellis did not contend below, nor

does she on appeal, that she was not the leader or organizer of the criminal activity

for which she was convicted, and the trial evidence conclusively showed she


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organized and led both the counterfeit-check-cashing scheme and the murder-for-

hire plots.

       Secondly, the evidence was sufficient to show the criminal activity Ellis

instigated involved five or more participants. Ellis does not dispute that she,

Amber Martin, and James Awaye were participants in her crimes. The evidence

presented at trial adequately demonstrated that Victoria Ellis and Omotola Odus

were also participants in Ellis’s crimes. As for Victoria, although there was

evidence presented at trial which indicated she did not play an active role in some

of the phone calls Ellis made to Awaye from the jail, the Government also offered

evidence indicating she was an active participant in Ellis’s criminal activity,

including: (1) the fact she facilitated multiple three-way calls between herself, her

mother, and Awaye, and was on the line during most of those calls; and (2) she

participated in the San Marcos, Texas meeting, during which she—without any

explanation from her mother or anyone else—was handed $18,500 in cash from

two complete strangers, which she counted and then used to pay those strangers

$1,600. That evidence arguably established, by a preponderance of the evidence,

that Victoria was a participant in Ellis’s crimes. Ndiaye, 434 F.3d at 1300

(providing when a defendant challenges a factual basis of her sentence, the

government must establish the disputed fact by a preponderance of the evidence).




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      As for Odus, the evidence demonstrated he created the counterfeit-check

templates that Ellis sent to Awaye for alteration and use in the scheme, and thus he

was a participant in Ellis’s criminal activity. Thus, the district court did not clearly

err in finding that Ellis, Martin, Awaye, Victoria, and Odus were participants in

Ellis’s criminal activity, and, consequently, it did not err in concluding her criminal

activity involved five or more participants. Therefore, the district court did not

clearly err in enhancing Ellis’s base offense level by four pursuant to § 3B1.1(a).

C. Procedural and Substantive Reasonableness & Eighth Amendment

      We review the procedural and substantive reasonableness of a sentence for

an abuse of discretion. United States v. Duperval, 777 F.3d 1324, 1331 (11th Cir.

2015). The party who challenges the sentence bears the burden to show the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      We review whether a sentence is procedurally unreasonable by determining

if the district court erred in calculating the Guidelines range, treated the Sentencing

Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors,

selected a sentence based on clearly erroneous facts, or failed to adequately explain

the sentence. Gall v. United States, 552 U.S. 38, 51 (2007). We examine whether,

in light of the totality of the circumstances, a sentence is substantively reasonable.

Id. In imposing a particular sentence, the court must consider the nature and


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

kinds of sentences available, the applicable Guidelines range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7). A district court must impose a sentence “sufficient, but not

greater than necessary, to comply with the purposes” of § 3553(a)(2), including the

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

just punishment for the offense, deter criminal conduct, and protect the public from

the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). The weight

given to any specific § 3553(a) factor is committed to the sound discretion of the

district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      The record demonstrates the district court did not commit procedural error in

determining Ellis’s total sentence, because it explicitly noted it had considered the

Guidelines calculations in the PSI and the sentencing factors codified at 18 U.S.C.

§ 3553(a), and it did not consider any improper factors. Moreover, Ellis cannot

demonstrate her 65-year, below-Guidelines total sentence of imprisonment was

substantively unreasonable, because: (1) the duration of that sentence was 20

years’ less than her Guidelines range and statutory maximum penalty; (2) the

record shows the district court weighed the relevant factors, and, on balance, came

to a reasonable conclusion that a 65-year, below-Guidelines total sentence of


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imprisonment was appropriate; and (3) she cannot show the district court made a

clear error of judgment in weighing the relevant § 3553(a) factors. See United

States v. Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014) (stating “[a] sentence

imposed well below the statutory maximum penalty is an indicator of a reasonable

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

(stating we will reverse only if we are left with the “firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case”). Finally, she has failed to establish the Eighth Amendment

applies to her total sentence, because it was 20 years shy of the statutory maximum

penalty to which she was exposed, and thus, she cannot show the total sentence

was grossly disproportionate to her offenses of conviction. 18 U.S.C. §§ 371,

513(a), 1513(a) & 1958(a); United States v. Johnson, 451 F.3d 1239, 1243 (11th

Cir. 2006) (stating in evaluating an Eighth Amendment challenge in a non-capital

case, we must first make the threshold determination the sentence imposed is

grossly disproportionate to the offense committed). Accordingly, we affirm Ellis’s

total sentence.

                                 II. CONCLUSION

      We affirm Ellis’s convictions and total sentence.

      AFFIRMED.


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