              Case: 18-10320    Date Filed: 12/20/2018   Page: 1 of 11


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-10320
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 9:17-cr-80105-WPD-3

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DOMANO DANIEL,

                                                               Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (December 20, 2018)

Before WILSON, MARTIN, and HULL, Circuit Judges.

PER CURIAM:

      Domano Daniel appeals his 10-year sentence for conspiring to possess five

or more kilograms of cocaine with intent to distribute. He argues that the district

court abused its discretion by denying his motion to withdraw his guilty plea and
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by giving him a substantively unreasonable sentence. After careful consideration,

we reject his arguments and affirm.

                                       I.

      A grand jury indicted Daniel, charging him with conspiring to possess five

or more kilograms of cocaine with intent to distribute and attempting to possess

five or more kilograms of cocaine with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.

      Daniel reached a plea agreement with the government. The terms of that

agreement required Daniel to plead guilty to conspiracy to possess five or more

kilograms of cocaine with intent to distribute. In exchange, the government would

seek to dismiss the remaining charge against him and recommend a reduction in

his Sentencing Guideline (“Guidelines”) offense level for acceptance of

responsibility.

      A change of plea hearing was held in district court. At the hearing, Daniel

confirmed he and his attorney had discussed the plea agreement, the nature of the

charges he faced, possible defenses to them, and his chances of winning the case at

trial. He told the court he did not need more time to discuss these or any other

matters with his attorney and that he had changed his mind about wanting to go to

trial. Daniel confirmed he understood that, by pleading guilty, he would be giving

up any and all defenses to the charge he faced and that he nonetheless still wanted


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to plead guilty. Daniel confirmed he was pleading guilty because he was, in fact,

guilty of conspiring to possess five or more kilograms of cocaine with intent to

distribute. According to the government’s summary of the facts, Daniel’s role in

the crime was limited to: engaging in phone calls with a codefendant, Reynold

Simeous, about where they would pick up cocaine from a third codefendant, John

Corvey; driving Simeous to that location; and opening the trunk of the car from a

latch inside the car. Corvey, who was cooperating with authorities, then put a

black duffel bag with sham cocaine into the backseat of the Honda, as Simeous

instructed, and Simeous handed him a bag containing more than $41,000. After

advising and questioning Daniel as otherwise required by Federal Rule of Criminal

Procedure 11(b)(1), the district court found a factual basis for Daniel’s plea.

Daniel then pled guilty to the conspiracy charge. The court noted Daniel’s plea

was knowing, intelligent, and voluntary and accepted it.

      More than two months later at what was supposed to be his sentencing

hearing, Daniel told the court he believed his attorney was not representing him

adequately. Daniel asserted his innocence, claiming he did not know drugs were

involved in the transaction with Corvey. He said counsel coerced him into

pleading guilty. In particular, Daniel pointed to counsel’s refusal to allow him to

review a statement counsel prepared to assist Daniel in receiving safety-valve relief




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under Guidelines Section 5C1.2 until after Daniel pled guilty. The court appointed

new counsel and delayed the sentencing.

      On January 12, 2018, Daniel made an oral motion to withdraw his guilty

plea. Daniel said his plea was neither knowing, nor intelligent, nor voluntary

because prior counsel told him mere presence was not a defense to the charges he

faced and told him to simply say yes to everything the court asked at his change of

plea hearing. The court took sworn testimony from Daniel. Daniel testified that,

although he did not knowingly participate in a drug deal, prior counsel “told [him

his] mere presence and the fact that [he] asked for directions [to the location where

the transaction occurred] makes [him] guilty in the conspiracy.”

      The court also took testimony from prior counsel, who denied Daniel’s

assertions. Prior counsel testified he was initially optimistic about the possibility

of a mere presence defense and discussed it with Daniel. However, prior counsel

eventually learned, through discovery provided by the government, that Daniel had

previously been involved in a similar exchange and explained to Daniel that this

fact might weaken a mere presence defense.

      On the government’s motion, the court admitted three exhibits during prior

counsel’s testimony, including the statement counsel submitted to the government

in support of safety-valve relief, which incorporated some of Daniel’s edits. In that

statement, Daniel admitted he was the driver in a similar transaction prior to the


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transaction underlying this conviction. As to the previous transaction, Daniel

admitted he “realized it must have been for drugs” when he was paid.

Nonetheless, he said he participated as a driver again, leading to his arrest and

conviction for the offense at issue here.

      Ultimately, the court denied Daniel’s motion, concluding there was no fair

and just reason for Daniel’s request. The court found prior counsel’s testimony

credible and found Daniel’s testimony at the motion hearing not credible.

      Sentencing took place on January 19, 2018. The district court granted the

following adjustments: (1) a minor role reduction, pursuant to Guidelines Section

3B1.2; (2) a reduction based on the theory that Daniel was responsible for

conspiring to distribute a smaller amount of drugs than the Presentence

Investigation Report indicated, pursuant to United States v. Bacon, 598 F.3d 772,

777–78 (11th Cir. 2010) (per curiam), and Guidelines Section 2D1.1(5); (3) a two-

point reduction for acceptance-of-responsibility, pursuant to Guidelines Section

3E1.1(a); and (4) relief from the applicable mandatory minimum, pursuant to

Guidelines Section 5C1.2’s safety valve.

      As to the acceptance-of-responsibility reduction and safety-valve relief, the

court noted that both were recommended in the Presentence Investigation Report,

and the government had not previously objected to either. The government said

the court was correct. The court expressed doubt about whether Daniel was


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entitled to an acceptance-of-responsibility adjustment or safety-valve relief given

its factual findings suggesting Daniel had not provided truthful testimony in

connection with his motion to vacate his guilty plea. However, the court indicated

it was compelled to grant both forms of relief because of the government’s failure

to timely object. The court ruled that Daniel’s guideline range was 46 to 57

months, based on a total offense level of 23 and a criminal history category of I.

      The court then pronounced sentence. To begin, the court said a guideline

sentence would not be reasonable for three primary reasons. First, the court opined

that 13.5 kilograms of cocaine was “a lot of cocaine being imported into the United

States.” Second, the court noted “[t]his isn’t Mr. Daniel’s first time getting

involved in an importation.” And third, the court expressed its belief that Daniel’s

conduct at the change-of-plea and motion to vacate hearings did not “promote[]

respect for the law,” because Daniel “told the truth during the change of plea” and

later “lied trying to get out from underneath the responsibility of the case” at the

hearing on the motion to vacate. In the court’s view, Daniel’s conduct “warranted

an obstruction-of-justice enhancement [under Guidelines Section 3C1.1] had the

government so requested.” While noting the safety-valve requirement was

“controlling on” it, the court said it still was free to “give a sentence above the ten-

year mandatory minimum.” Finally, the court ruled that “the equivalent of the ten-

year mandatory minimum is the appropriate sentence” “given all the facts and


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circumstances of this case, to promote respect for the law, to act as a deterrent so

other people aren’t tempted to assist in smuggling . . . large amounts of drugs from

the Bahamas, and to indicate that the Court doesn’t condone perjury in a[n]

obstruction of justice fashion.” The court imposed a ten-year sentence.

      Daniel objected on substantive reasonableness and due process grounds,

given that the court’s sentence more than doubled the top of the guidelines. The

court overruled his objection. In so doing, the court said it could consider Daniel’s

purported perjury even though the government had not requested an obstruction-

of-justice enhancement. It described Daniel’s behavior as “willy-nilly lying and

wasting the Court’s time with perjurious testimony.” The court added that it could

also consider its views on Daniel’s acceptance of responsibility and the application

of the safety valve to Daniel’s case in setting a fair and just sentence.

      This appeal followed.

                                        II.

      Daniel raises two claims on appeal. First, he asserts the district court abused

its discretion in denying his motion to withdraw his guilty plea because the plea

colloquy did not dispel or address his mistaken belief that there was no available

legal defense. Second, he argues that his sentence was substantively unreasonable

because the district court gave improper weight to his purported perjury.




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      We review the denial of a request to withdraw a guilty plea for abuse of

discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). We

also review the substantive reasonableness of a sentence for abuse of discretion.

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

                                       III.

      We begin with Daniel’s claim that the district court should have granted his

motion to withdraw his guilty plea. Daniel argues that the district court’s colloquy

was deficient, because the court “never asked [him] if he had an opportunity to

review the defense of mere presence with counsel.” That was a critical question

here, Daniel asserts, because he harbored an “incorrect belief that he had no

defense.” As a result, Daniel says his plea was not knowing or voluntary and,

therefore, the district court should have permitted him to withdraw it.

      In rejecting this argument, we note that the district court found Daniel’s

testimony not credible, including his assertion that his counsel had not discussed

the availability and viability of a mere presence defense. Rather, the district court

credited the testimony of Daniel’s prior counsel, who said that he discussed the

mere presence defense with Daniel. These credibility determinations were matters

for the district court to decide, and Daniel has not indicated why we should revisit

them. Brehm, 442 F.3d at 1298 (“The good faith, credibility and weight of a

defendant’s assertions in support of a motion to withdraw a guilty plea are issues


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for the trial court to decide.” (quotation marks omitted and alteration adopted)).

The only evidence in the record supporting Daniel’s claim was his own testimony.

Once the district court discredited it, Daniel could not meet his burden to show a

“fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B);

Brehm, 442 F.3d at 1298. Therefore, the district court did not abuse its discretion

in denying Daniel’s motion to withdraw his guilty plea.

                                         IV.

      We next review Daniel’s claim that his sentence was substantively

unreasonable. Daniel’s argument proceeds in two parts. First, he asserts that the

district court erred by considering his alleged perjury in deciding to vary upward

from the guidelines because a feature of the sentencing scheme—the obstruction-

of-justice enhancement—already accounts for this conduct. Second, he argues his

sentence “was more than doubled because he did not fully understand his plea

colloquy at the time,” and that, in any event, neither his alleged perjury nor the

other circumstances of the case justified the district court’s major variance.

      Daniel’s first argument fails because the government did not request and the

district court did not impose an obstruction-of-justice enhancement. Thus, the

district court’s belief that Daniel had perjured himself was not accounted for in

calculating the guideline range. Cf. United States v. Valdes, 500 F.3d 1291, 1292

n.2 (11th Cir. 2007) (per curiam) (deeming a sentence substantively unreasonable


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in part because “[m]any of the bases for the district court’s sentence were already

accounted for in calculating the Guidelines range”).

      Daniel’s second argument also falls short. No doubt, Daniel’s 10-year

sentence, more than double the top of the guideline range, represents a major

variance. See United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en

banc) (concluding a 42% variance qualified as major). Such variances “require . . .

more significant justification than . . . minor one[s].” Id.; United States v. Pugh,

515 F.3d 1179, 1201 (11th Cir. 2008) (concluding that a “district court did not

support [its] major departure with a significant justification” (quotations omitted)).

Nonetheless, we cannot conclude that the district court abused its discretion in

imposing this upward variance. Irey, 612 F.3d at 1187, 1189.

      Increasing Daniel’s sentence because he did not understand his plea would

certainly be an abuse of discretion. See id. at 1189 (explaining that a district court

abuses its discretion when it “gives significant weight to an improper or irrelevant

factor” (quotation marks omitted)). But that is not what happened here. Instead,

the district court justified its variance in part by Daniel’s purported dishonesty

under oath at the hearing on his motion to withdraw his guilty plea. This Court’s

precedent has permitted a district court to do just that in materially

indistinguishable circumstances. See United States v. Mateos, 623 F.3d 1350,

1367 (11th Cir. 2010) (O’Connor, J., ret.) (affirming a sentence on a substantive


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reasonableness challenge, where the district court found, at sentencing, that the

defendant had “blatantly lied” during her testimony at trial and referred to her

“perjurious testimony” as one of several reasons for varying upward (quotation

marks omitted)). Thus, we cannot say the district court abused its discretion by

considering Daniel’s perjury in varying upward.

      Also, the district court did not rely on Daniel’s perjury alone to justify such a

major variance. The court also said it varied upward in part “to . . . deter[] other

people . . . from . . . assist[ing] in smuggling . . . large amounts of drugs from the

Bahamas.” We cannot say—and Daniel does not argue—that this was error. See

18 U.S.C. § 3553(a)(2)(A), (B) (providing that the district court must consider “the

need for the sentence imposed . . . to reflect the seriousness of the offense [and] . . .

to afford adequate deterrence to criminal conduct”).

      Even if we ourselves would have imposed a less severe sentence, this is not

a basis to conclude that Daniel’s sentence was substantively unreasonable. Gall,

552 U.S. at 51, 128 S. Ct. at 597 (“The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal of the district court.”). Therefore, we cannot say the district

court’s sentence “constitute[d] a clear error of judgment.” Irey, 612 F.3d at 1187,

1189 (quotation marks omitted). We affirm.

      AFFIRMED.


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