               Case: 15-12244      Date Filed: 09/04/2018     Page: 1 of 21


                                                                   [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-12244
                             ________________________

                    D.C. Docket No. 1:13-cv-00051-WLS-TQL-2

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

versus

DONTERIUS TOOMBS,

                                                 Defendant-Appellant.
                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Georgia
                           ________________________

                                  (September 4, 2018)

Before TJOFLAT and JORDAN, Circuit Judges, and HUCK,* District Judge.




*
  Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
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PER CURIAM:

       A grand jury indicted Donterius Toombs and others 1 on one count of

conspiracy to possess powder cocaine and crack cocaine with the intent to

distribute, in violation of 21 U.S.C. §§ 846 and 841. After a jury convicted Mr.

Toombs, the district court sentenced him to twenty years of imprisonment and ten

years of supervised release.

       Mr. Toombs contends that he was entitled to acquittal, a new trial, or

resentencing on several grounds: because the evidence was insufficient to prove

conspiracy; because the evidence and argument confused the jury by showing the

existence of another conspiracy separate from the one charged in the indictment;

because the district court imposed a statutory sentence enhancement even though

the government failed to adhere to mandatory procedures in seeking the

enhancement; and because the government sought the enhancement as punishment

for his exercising of the right to trial by jury.

       Having reviewed the record, and with the benefit of oral argument, we

affirm.




1
  One of those other defendants was Stephon Williams, whose appeal, No. 15-12130, we heard
together with Mr. Toombs’. We decide Mr. Williams’ appeal in a separate opinion.


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                                           I

      Our review on sufficiency is de novo. See United States v. Foster, 878 F.3d

1297, 1303 (11th Cir. 2018). We view the trial evidence, however, in the light

most favorable to the government. See United States v. Bacon, 598 F.3d 772, 775

(11th Cir. 2010) (sufficiency of the evidence); United States v. Edouard, 485 F.3d

1324, 1347 (11th Cir. 2007) (material variance/multiple conspiracies).

                                           A

      On November 12, 2013, a grand jury indicted Mr. Toombs and others on one

count of participation in a conspiracy involving twenty named individuals and

other unnamed individuals to possess cocaine and crack cocaine with the intent to

distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii), (iii). It

also indicted Mr. Toombs on a count of aiding and abetting the distribution of

crack cocaine, but the government ultimately dismissed this charge. In September

of 2014, the government filed an sentence-enhancement notice under 21 U.S.C.

§ 851 as to Mr. Toombs.

      In October of 2014, Mr. Toombs and Mr. Williams proceeded to trial. The

jury heard testimony from more than a dozen witnesses, including a number of

alleged coconspirators. The evidence reflected the following.




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                                            B

      In Georgia, from approximately 2010 through 2012, a group of

individuals—with one named Curtis Donaldson at the center—agreed to work

together to distribute cocaine to their overlapping customer bases. To further this

goal, the coconspirators took on various and shifting roles in fulfilling the

necessary tasks, including lending money to each other to purchase drugs from

suppliers, going to suppliers and purchasing drugs, transporting drugs to a

“headquarters” and cooking them there, monitoring for and communicating about

law enforcement activity to avoid detection, selling drugs, and conducting

accounting of relevant financial transactions.

                                            1

      At times, Mr. Donaldson left Mr. Toombs in possession of his drugs with the

intent that Mr. Toombs would sell the drugs on Mr. Donaldson’s behalf and for

their mutual benefit. In these instances, Mr. Donaldson and Mr. Toombs agreed

that Mr. Toombs would make money by marking up the prices of the drugs over

Mr. Donaldson’s prices and keeping the difference.             This Mr. Toombs did.

Mr. Toombs sometimes worked with other coconspirators in conducting these sales

or sold to other coconspirators.

      Mr. Toombs also engaged in other activities in furtherance of the drug-

distribution goal he shared with Mr. Donaldson and others.            He once called


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Mr. Donaldson to warn him that police were in his area.             Another time,

Mr. Toombs lent money to Mr. Donaldson with the understanding that he would be

repaid in cocaine. During a wiretapped phone call, Mr. Toombs ordered—and

Mr. Donaldson ultimately sold him—3.8 ounces of crack cocaine, which

Mr. Donaldson estimated sufficed for Mr. Toombs to make about 15 individual

sales at $20 apiece. Mr. Toombs also made at least two other drug orders on the

phone and about five or six more orders in person, each of up to a half ounce at a

time.    Mr. Toombs bought this crack cocaine intending to resell it.       Other

coconspirators sold or “fronted” drugs to Mr. Toombs or saw Mr. Toombs

purchase drugs from Mr. Donaldson.

                                        2

        The testimony of Tyree Bennett corroborated other sources of evidence

describing the drug-distribution conspiracy alleged in the indictment.        For

example, Mr. Bennett testified about the general way that a drug-distribution

conspiracy operates, about the types and quantities of drugs distributed in

connection with the conspiracy described in the indictment, and about the roles or

duties of certain individuals in that conspiracy. His testimony indicated that he

obtained drugs from Willie Curry and Mr. Donaldson, among others.          It also

indicated that he knew Mr. Toombs since they were about twelve years old, that

(with Mr. Toombs) he dealt drugs that the two obtained from Mr. Donaldson and


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others named in the Donaldson conspiracy until he was incarcerated in late 2011,

and that Mr. Toombs and Mr. Donaldson continued selling drugs to Mr. Bennett’s

customers when Mr. Bennett was incarcerated.

                                          C

      A jury ultimately convicted Mr. Toombs. The district court sentenced him

to twenty years’ imprisonment—the minimum term of imprisonment required

pursuant to the § 851 notices that the government filed—followed by ten years’

supervised release.

                                         II

      We now address Mr. Toombs’ arguments in turn.

                                          A

      Mr. Toombs concedes that the evidence adduced at trial sufficed for a jury to

find that he bought illegal drugs. But he contends that it was insufficient for a jury

to find him guilty of conspiracy and that certain evidence proffered by the

government affirmatively proved there was no conspiracy. We disagree.

      As we have stated before:

      For a conviction of conspiracy to distribute drugs in violation of 21
      U.S.C. § 846, the government must present evidence to prove the
      following elements beyond a reasonable doubt: (1) a conspiracy (or
      agreement) existed between Defendants or between Defendants and
      others; (2) Defendants knew the essential objects of the conspiracy,
      which are to do either an unlawful act or a lawful act by unlawful
      means; and (3) Defendants knowingly and voluntarily participated in
      the conspiracy. . . . [B]ecause a conspiracy is predominantly mental in

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      composition, circumstantial evidence is frequently resorted to in order
      to prove its elements. The trier of fact may infer a conspiracy from a
      concert of action.

United States v. Holt, 777 F.3d 1234, 1259 (11th Cir. 2015) (internal citations and

quotation marks omitted).

      Mr. Toombs preserved his sufficiency argument with a motion for judgment

of acquittal. We therefore review this claim de novo, but view the evidence in the

light most favorable to the government. See Bacon, 598 F.3d at 775.

      The government’s theory of the case was that Mr. Donaldson and others

agreed to work together to maintain an ongoing supply of powder cocaine and

crack cocaine and to distribute these drugs to their overlapping customer bases. To

further this goal, the coconspirators took on various roles in handling necessary

tasks, including lending money to coconspirators who would purchase the drugs

from suppliers, going to those suppliers to purchase the drugs, transporting the

drugs to headquarters, cooking crack cocaine, monitoring for and communicating

about law enforcement activity to avoid detection, making sales, and accounting

for drug transactions.

      The evidence at trial sufficed for a jury to conclude beyond a reasonable

doubt that Mr. Toombs was guilty because it showed that he understood, agreed to,

and followed through on an agreement with Mr. Donaldson and others to distribute

illegal drugs. As the facts summarized above reflect, Mr. Toombs engaged in


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significant drug-distribution activity with Mr. Donaldson and others. That activity

included (1) being tasked with, and fulfilling, the duty of keeping Mr. Donaldson’s

drugs safe under his guard, (2) selling Mr. Donaldson’s drugs for his own and

Mr. Donaldson’s benefit, (3) warning Mr. Donaldson of the presence of law

enforcement officers nearby, (4) lending money to Mr. Donaldson with the

expectation of being repaid in drugs, and (5) approximately seven to nine times,

buying drugs from Mr. Donaldson with the intent to resell them.

       Mr. Toombs makes several arguments in support of his contention that the

evidence presented was insufficient. None of them, however, directly grapples

with the full weight of the evidence proffered against him, and all of them

ultimately miss the mark.

       First, Mr. Toombs points out that certain bits of evidence among those

proffered by the government were not sufficient to convict him. But he misdirects

these arguments. Rather than dealing with the facts in the record as a whole and

viewing them in the light most favorable to the government, he mistakenly focuses

on whether one or another “singular [action] is insufficient to establish the

existence of a conspiracy.” United States v. Johnson, 592 F.3d 749, 757 (7th Cir.

2010). Alas, because there was not simply one item of proof standing alone, it is

simply irrelevant whether indeed one such item, standing alone, sufficed to convict

him.


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      Second, he points out that certain kinds of evidence were not among what

the government proffered and were required to prove his guilt. Mr. Toombs again

misreads Johnson. This out-of-circuit case does not per se require the kinds of

evidence that Mr. Toombs claims were missing, but only cites those kinds of

evidence as “examples” of what would meet the government’s burden to produce

“some evidence from which the jury can distinguish a conspiracy from a mere

buyer-seller relationship.” Id. at 755, 758. Assuming that a jury was required to

draw the Johnson distinction here, the evidence enumerated above supported such

a finding.

      Third, Mr. Toombs points to some evidence which purportedly undermined

the government’s case. Even if we assume that each of Mr. Toombs’ factual

contentions about the evidence has support in the record, and if we were to

interpret the cited evidence in the light most favorable to him, it was trivial enough

that a jury could discredit it and convict him on the rest.

      But, anyhow, none of the purported facts necessarily points in the direction

of Mr. Toombs’ innocence. These facts purportedly include, for example, that

(1) Mr. Toombs shorted one of Mr. Donaldson’s customers, (2) Mr. Donaldson

referred two customers to Mr. Toombs and did not directly profit from these

referrals, (3) Mr. Toombs once declined to receive a referral from Mr. Donaldson,

and (4) Mr. Donaldson once instructed an intermediary to sell drugs to Mr. Toombs


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rather than giving Mr. Toombs direct access to his drugs. These bits of evidence

no more require a jury to acquit Mr. Toombs of conspiracy than a jury would have

to find that a bank employee without keys to the vault, or a poorly performing one,

or one with her hand in the till, was no employee at all. That is, agreements have

limits and the parties to agreements sometimes breach them, so evidence of a limit

or a breach does not necessarily show that no agreement existed. Thus, given that

other evidence sufficed to support a jury finding that an agreement existed, the

presence of these facts did not require a reasonable jury to conclude to the

contrary.

      In sum, the evidence was enough to convict Mr. Toombs of the charged

conspiracy.

                                        B

      Mr. Toombs argues that, assuming there was sufficient evidence for the jury

to conclude that he was guilty of conspiracy, there was a prejudicial “material

variance” from the charged conspiracy to the one (or two) reflected by the

evidence.     Specifically, Mr. Toombs contends that a government witness,

“Mr. Bennett[,] had a separate drug organization that also operated in the

Southwest Georgia area.” Toombs’ Br. at 9. The government, he says, presented

“an extraordinary amount of evidence” about this separate conspiracy, Toombs’




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Reply at 2, and “repeatedly referenc[ed]” it, Toombs’ Br. at 19, which led the jury

to convict him of something other than the crime with which he was charged.

      The government has not argued that Mr. Toombs failed to preserve this

argument, so we review the issue de novo. See United States v. Sullivan, 522 F.3d

967, 980 (9th Cir. 2008).

      We have not found support for Mr. Toombs’ argument in the record. If the

evidence is viewed in a certain way, there may indeed have been a separate scheme

with an imperfectly overlapping cast of characters. But Mr. Toombs cites to no

evidence or argument that a jury was required to interpret as necessarily

establishing a separate conspiracy—let alone so much such evidence that a

material variance occurred.

      To establish reversible error based on a material variance, Mr. Toombs must

prove two things. First, like other sufficiency-of-the-evidence arguments, this

argument requires him to show that no “reasonable trier of fact could have found

beyond a reasonable doubt” what the government purported to prove here—

namely, “the existence of the single conspiracy charged in the indictment.” United

States v. Starrett, 55 F.3d 1525, 1553 (11th Cir. 1995) (internal quotation marks

omitted).   Specifically, what Mr. Toombs needs to show is that the jury was

required to conclude that the government had “prove[d] multiple conspiracies

under an indictment alleging only a single conspiracy.” United States v. Castro, 89


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F.3d 1443, 1450 (11th Cir. 1996).        Second, having shown that the jury was

required to conclude that multiple conspiracies existed, Mr. Toombs must then

show that he suffered “substantial prejudice”—i.e., “either (1) that the proof at trial

differ[ed] so greatly from the charges in the indictment that [he] was unfairly

surprised and had an inadequate opportunity to prepare a defense, or (2) that due to

the number of defendants in the case, and the number of predicate acts charged,

there is a substantial likelihood that the jury transferred evidence from one

defendant to another.”      Starrett, 55 F.3d at 1553 (internal quotation marks

omitted).

      Mr. Toombs’ material variance argument fails because the factual

contentions on which it is based are not supported by the parts of the record that

Mr. Toombs cites. Indeed, Mr. Toombs’ attorney’s unsupported contentions are

myriad. For example, immediately following the critical (and basic) proposition

that “Mr. Bennett had a separate drug organization that also operated in the

Southwest Georgia area” is a single citation—to “Doc. 323-164.” Toombs’ Br. at

9. Neither the cited page nor those adjacent support this proposition at all.

      Instead, the cited page states that “basically every day” in 2011 (during the

time period that the indictment charges), Mr. Bennett and Mr. Toombs “dealt drugs

and hung together,” describes from whom Mr. Bennett was then purchasing his

drugs and how much he was selling, and says that Mr. Bennett’s named suppliers


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include Mr. Curry and Mr. Donaldson (who, incidentally, are two of the

coconspirators alleged in Mr. Toombs’ indictment).

      Likewise, Mr. Toombs claims that “[i]n its Opening Statement, the

government began by giving the jury extensive information about Mr. Toombs’

alleged involvement in [Mr.] Bennett’s conspiracy.” Toombs’ Br. at 18 (citing

D.E. 331 at 34–38). But the cited pages of the transcript reflect that Mr. Toombs

and Mr. Bennett were working in concert with others in the indicted conspiracy to

advance their mutual goal of distributing illegal drugs.

      This lack of record support is a problem for Mr. Toombs. When a litigant

makes an argument without providing valid citations to the record, we may reject it

on that basis alone. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681

(11th Cir. 2014). For other reasons, too, it is critical to give proper citations to the

record and to take care not to make any misrepresentations about what the record

reflects. Procedural and ethical rules require such care. See Nat’l Alliance for

Mentally Ill, St. Johns Inc. v. Bd. of Cnty. Comm’rs of St. Johns Cnty., 376 F.3d

1292, 1295 (11th Cir. 2004) (quoting Fed. R. App. P. 28(a)(9)(A)); Fed. R. App. P.

46(b)(1)(B); Fed. R. Civ. P. 11(b)(3); Morrison v. Dallas Cnty. Cmty. Coll., 273 F.

App’x 407, 412 (5th Cir. 2008); Lewis v. Circuit City Stores, Inc., 500 F.3d 1140,

1153 (10th Cir. 2007).




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      Although we could deem this argument forfeited, we have still searched the

record, but have been unable to find facts to bear the necessary weight. That is, we

have reviewed Mr. Toombs’ record citations and more, and have found no

evidence that specifically indicates that any witness connected Mr. Toombs to

activity that was involved with a conspiracy separate from the one charged. There

is evidence (and opening or closing argument mentions) of Mr. Toombs’

association with individuals charged in another case—as we discuss below—and

even some passing reference to the other case, but none of what we have found

meets Mr. Toombs’ burden at this stage. This failure is enough to reject the whole

argument.

      What the cited parts of the record (including the opening and closing

arguments) do indicate is, in summary, as follows. Mr. Bennett and Mr. Toombs

have known each other since they were approximately twelve years old. They

dealt powder and crack cocaine together until a law enforcement agency detained

Mr. Bennett in late 2011, at which point Mr. Toombs continued dealing to his and

Mr. Bennett’s customers. When dealing drugs together, the two obtained some of

their product from Mr. Donaldson and others involved in the charged “Donaldson

conspiracy.”




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      The foregoing facts are probative of the charged conspiracy. Accordingly, a

reasonable jury was certainly not required to find that Mr. Toombs participated in a

second, uncharged conspiracy, and there was no material variance.

                                           C

      Mr. Toombs also argues that the government’s evidence required the district

court to give the jury a “multiple conspiracies” charge. Because Mr. Toombs

raises this error for the first time on appeal, the question is whether it was error not

to give the charge sua sponte, and we review only for plain error. See United

States v. Hughes, 840 F.3d 1368, 1384 (11th Cir. 2016).

      This argument fails because, as with the “material variance” issue that we

discussed above, to prevail here Mr. Toombs must show that no reasonable jury

could have found that the government proved the single conspiracy charged. See

United States v. Gonzalez, 940 F.2d 1413, 1422 n.17 (11th Cir. 1991). As we have

just explained, he has not shown that no reasonable jury could come to this

conclusion. Accordingly, we reject this argument.

                                           D

      Additionally, Mr. Toombs argues that, because the government failed to

adhere to certain procedures, the district court erred in applying a sentencing

enhancement to him under 21 U.S.C. § 851. Specifically, § 851 provides that, in

certain cases, prescribed statutory minimum sentences will apply for repeat


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offenders, but only if the government “files an information with the court (and

serves a copy of such information on the person or counsel for the person).” 21

U.S.C. § 851(a) (emphasis added). Mr. Toombs claims that the government failed

to complete service as required because it only e-filed the information.          The

government has not argued that Mr. Toombs failed to preserve this argument, so

“[w]e review [it] de novo.” United States v. Ladson, 643 F.3d 1335, 1341 (11th

Cir. 2011).

      Mr. Toombs concedes that service “via the court’s CM/ECF system [is

permissible] if the local rules allow[ ] for service via the court’s transmission

facilities,” Toombs’ Br. at 35, but argues that the relevant local rules do not include

the district court’s CM/ECF procedures. As far as the particular procedure at issue

here is concerned, we disagree.

      In the Middle District of Georgia, filing a document electronically for a

given case constitutes service on all users registered as participants in that case.

The Middle District of Georgia’s CM/ECF procedures establish the following:

      Service and Notice

      Whenever a pleading or other document is filed electronically,
      CM/ECF will generate a Notice of Electronic Filing (NEF). The NEF
      will serve as a receipt evidencing that the pleadings or other
      documents have been filed and docketed. The NEF is the official
      notice of the filing to all registered participants and includes the text
      of the docket entry, as well as a link to the filed document. If the
      recipient is a participant in CM/ECF, generation of the NEF is the


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      equivalent of service by first class mail. Service by electronic means
      is complete on transmission.

      If the recipient is not a participant in CM/ECF, service must be made
      under the Federal Rules of Civil and Criminal Procedure. . . .

CM/ECF Administrative Procedures for Filing, Signing, and Verifying Documents

by Electronic Means, http://www.gamd.uscourts.gov/sites/gamd/files/Administra

tiveProceduresElectronicFiling.pdf (last visited Dec. 5, 2017) (emphasis added).

      The Middle District of Georgia appears generally to treat these procedures as

rules, and the particular CM/ECF procedure at issue here is effectively a corollary

of the elementary proposition that attorneys are required to review the filings in

their cases, so we comfortably treat it as a court rule. See, e.g., M.D. Ga. L.R.

5.0(A) (“The instructions for filing civil and criminal pleadings electronically in

CM/ECF can be found in the ‘Administrative Procedures for Filing, Signing, and

Verifying Documents by Electronic Means’ available on the Court’s website.”).

See also Chiacchiarini v. Lowndes Cnty., Ga., No. 7:17-cv-2, 2017 WL 2951606,

at *3 (M.D. Ga. July 10, 2017) (determining a party’s rights by deciding whether

an attorney complied with another requirement in this same set of CM/ECF

procedures).

      Here, Mr. Toombs’ attorney was admitted to practice before the district

court, entered a notice of appearance electronically in the case on November 22,

2013—becoming a registered user in the case who consented to service via


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CM/ECF filing no later than that date2—and remained Mr. Toombs’ attorney well

past September 19, 2014, the date that the government filed the notice in question.

Accordingly, the government satisfied § 851’s service requirement here.

                                             E

       Mr. Toombs next argues that the government’s filing of the § 851 notice was

improper because it contravened a Department of Justice policy memorandum3 and

functioned as punishment for the exercise of his right to a jury trial. A plain-error

standard of review applies to this claim, which is raised for the first time on appeal,

although the argument fails even if we review it de novo. See Fed. R. Crim. P.

12(b)(3)(A)(iv); United States v. Sperrazza, 804 F.3d 1113, 1118–19 (11th Cir.

2015); United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007).

       Mr. Toombs cannot rely on the internal Department of Justice policy

memorandum to which he refers because, rather than establishing binding norms,

the memorandum leaves prosecutors “free to consider the individual facts in the

various cases that arise.” Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369,

1377 (11th Cir. 1983). See also United States v. Wasserman, 504 F.2d 1012, 1016


2
  See Petition for Admission to Plead and Practice, http://www.gamd.uscourts.gov/sites/gamd/
files/forms/AtyAdmissionForm.pdf (last visited Dec. 5, 2017).
3
  See Memorandum from the Attorney General to the United States Attorneys and Assistant
Attorney General for the Criminal Division (Aug. 12, 2013), https://www.justice.gov/sites/
default/files/oip/legacy/2014/07/23/ag-memo-department-policypon-charging-mandatory-mini
mum-sentences-recidivist-enhancements-in-certain-drugcases.pdf (last visited Dec. 19, 2017).


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(5th Cir. 1974) (“find[ing] no basis for prohibiting prosecutions which violate

internal Department of Justice policy memoranda” and therefore rejecting

contention that the government prosecuted the defendants “in contravention of a

Department of Justice policy memorandum”); United States v. Strong, 844 F.3d

133, 136 (2d Cir. 2016) (rejecting precisely Mr. Toombs’ argument as to the same

DOJ memo).

      Mr. Toombs’ argument about the government’s punishing him for exercising

his right to a jury trial fails too. Notwithstanding its recognition that “punish[ing] a

person because he has done what the law plainly allows him to do is a due process

violation of the most basic sort,” Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978), the Supreme Court has held that the government may freely encourage

criminal defendants to plead guilty “in the ‘give-and-take’ of plea bargaining” by

offering “a lenient sentence or a reduction of charges” for pleading guilty or by

dangling increased penalties or additional charges for failing to plead guilty. Id. at

363. See also id. at 361 (observing that the two situations are “[a]s a practical

matter . . . no different”). To hold to the contrary, Bordenkircher observed, “would

contradict the very premises that underlie the concept of plea bargaining itself.”

Id. at 365.    Consequently, other courts of appeals have uniformly rejected

challenges such as the one Mr. Toombs raises here. See United States v. Kent, 649

F.3d 906, 913 (9th Cir. 2011); United States v. Jenkins, 537 F.3d 1, 5 (1st Cir.


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2008); United States v. Morsley, 64 F.3d 907, 920 (4th Cir. 1995); United States v.

Mosley, 14 F.3d 54 (5th Cir. 1994). We do as well.

      Assuming without deciding that Mr. Toombs’ “§ 851 enhancement in this

case created a gross sentencing disparity with equally culpable co-conspirators,”

Toombs’ Br. at 39, this does not affect our conclusion. Implicit in the reasoning in

Bordenkircher is that it is acceptable for someone who decides to go to trial to

receive a greater punishment than someone who decides to plead guilty.

      There may be certain circumstances in which, when the government

“without notice br[ings] an additional and more serious charge” after failed plea

negotiations, a defense of vindictive prosecution may prevail.           See, e.g.,

Bordenkircher, 434 U.S. at 360 & n.5. Mr. Toombs has not, however, argued (or

presented evidence showing) that this is such a case.

      Accordingly, we reject Mr. Toombs’ challenges to the government’s

invocation of the sentencing enhancement available via information under § 851.

                                         F

      Mr. Toombs’ briefs contain some remarks which his counsel might have

intended as additional arguments. For example, Mr. Toombs complains in passing

that certain witness testimony was not corroborated. And he notes elsewhere that

“[n]o physical evidence of drugs . . . that could be attributed to Mr. Toombs” was

introduced, and that the evidence instead “consisted solely of the testimony of


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convicted drug dealers who[se] . . . sentences . . . were . . . reduced in exchange for

their testimony.” Toombs’ Br. at 10. Occasionally, he says that the court erred in

“admitting [certain] evidence.” Id. at 15. One time, he says that certain evidence

was “bad character evidence prohibited by FRE 404(a)(1).” Id. at 21. These

passing remarks, unsupported by case law or meaningful argumentation, do not

properly raise any additional arguments.            See Sapuppo, 739 F.3d at 681.

Accordingly, we do not address them here.

                                         III

      Finding no reversible error in the district court record, we affirm

Mr. Toombs’ conviction and sentence.

      AFFIRMED.




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