              Case: 14-13317    Date Filed: 04/09/2015   Page: 1 of 4


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-13317
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:85-cr-00748-KMM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

WILLIAM POTTS, JR.,
a.k.a. William Freeman, Jr.,
a.k.a. Lt. Spartacus,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (April 9, 2015)

Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:

      William Potts, Jr. appeals his 20-year pre-Sentencing Guidelines sentence,

imposed after he pled guilty to the superseding information’s charge of kidnapping
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in the special aircraft jurisdiction of the United States, in violation of 18 U.S.C.

§ 1201(a)(3). His offense, committed in March 1984, arose out of his threat to

blow up a commercial aircraft on which he was a passenger if the pilot did not

divert the flight to Cuba. The grand jury originally indicted him in 1985 on a

charge of aircraft piracy, in violation of 49 U.S.C. § 1472(i).1 From 1984 to 1997,

he served a 13-year sentence in a Cuban prison related to the same conduct. On

appeal, Mr. Potts argues that the district court acted arbitrarily and capriciously,

resulting in a gross abuse of discretion, by imposing a 20-year sentence after he

already had served a 13-year sentence in Cuba for the same crime. Also, for the

first time on appeal, he argues that his 20-year sentence was the result of racial bias

because his white cell mate in Cuba served four years in Cuba “for the very same

offense” before returning to the United States and receiving an additional sentence

of only five years.

          Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

          We review a pre-Guidelines sentence for an abuse of discretion. United

States v. Duarte-Acero, 296 F.3d 1277, 1281 (11th Cir. 2002). In a pre-Guidelines

case, a district court “has broad discretion in the imposition of criminal sentences.”

United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). “The severity of a


1
    The crime of aircraft piracy is now codified at 49 U.S.C. § 46502.
                                                  2
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sentence imposed within the statutory limits is insulated from appellate review, but

the judicial process by which a sentence is determined is subject to appellate

scrutiny.” Id. “As long as the sentence is within statutory limits and there is no

showing of arbitrary or capricious action amounting to a gross abuse of discretion,

it will not be questioned on appeal.” United States v. Ard, 731 F.2d 718, 727 (11th

Cir. 1984). “While the district court may consider sentences imposed in similar

cases in arriving at its sentencing determination, the sentence is valid unless a

showing of abuse of discretion by the district court is made. A defendant cannot

rely upon the sentences which other defendants receive as any yardstick for his

sentence.” United States v. Hayes, 589 F.2d 811, 827 (5th Cir. 1979). 2

       Here, the record reveals no arbitrary or capricious conduct by district court

in sentencing Mr. Potts. Instead, the record reveals that district court heard

argument from counsel for both parties regarding the appropriate sentence to be

imposed, with particular attention to the time he served and the conditions he

endured while incarcerated in Cuba. The court chose a 20-year sentence because,

with that sentence, Mr. Potts would become eligible for parole after serving one-

third of the sentence, or approximately seven years. The court reasoned that the

resulting seven-year sentence, combined with his 13-year term of imprisonment in

Cuba, would approximate the 20-year mandatory minimum that he would have

2
 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
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received if the government had proceeded on the charge of aircraft piracy from the

original indictment.

      With regard to the disparate-sentencing argument that Mr. Potts raises for

the first time on appeal, there is no evidence that the district judge was ever made

aware of the cell mate’s circumstances, but even if she had been, under our

pre-Guidelines sentencing precedent, he cannot rely on the sentences that other

defendants received as grounds to challenge his own sentence. See id.

      AFFIRMED.




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