                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT  OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                   FEB 9, 2011
                                 No. 10-12221                       JOHN LEY
                             Non-Argument Calendar                   CLERK
                           ________________________

                   D.C. Docket No. 6:09-cr-00173-GAP-DAB-1

UNITED STATES OF AMERICA,

                                                   lllllllllllllllllllllPlaintiff-Appellee,

                                       versus

PRESTON ANGELO WILLIAMS,

                                                lllllllllllllllllllllDefendant-Appellant.

                           _______________________

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

                                (February 9, 2011)

Before TJOFALT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

      Preston Angelo Williams appeals his conviction for aiding and abetting

credit card fraud, in violation of 18 U.S.C. § 1029(a)(5) and (c)(1)(A)(ii) and
18 U.S.C. § 2. On appeal, Williams argues that his indictment in this case violated

the Double Jeopardy Clause of the Constitution. Specifically, he contends that his

sentence in his first trial for filing false FEMA claims was “enhanced” by the

credit card fraud and therefore that the indictment in this case amounted to a

second attempt to punish him for the same offense.

      Generally, a guilty plea waives all non-jurisdictional challenges to a

conviction. United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008).

However, the Supreme Court has recognized that some double jeopardy challenges

are an exception to this rule. Menna v. New York, 423 U.S. 61, 96 S. Ct. 241, 46

L. Ed. 2d 195 (1975). This exception applies when the defendant does not seek to

produce evidence that goes outside of the plea hearing to establish the factual

nature of the double jeopardy challenge. United States v. Bonilla, 579 F.3d 1233,

1240-41 (11th Cir. 2009). Williams’s appeal is not waived because he does not

seek to introduce evidence from outside of the plea hearing to demonstrate that the

conduct at issue in the sentencing phase of the first trial and the conduct at issue in

the indictment of the second trial were the same offense.

      We review de novo an alleged violation of the Double Jeopardy Clause.

United States v. McIntosh, 580 F.3d 1222, 1226 (11th Cir. 2009). The protection

afforded by the Double Jeopardy Clause applies both to successive prosecutions

                                           2
and to successive punishments for the same offense. Witte v. United States, 515

U.S. 389, 395-96, 115 S. Ct. 2199, 2204, 132 L. Ed. 2d 351 (1995). In Witte, the

Supreme Court held that using evidence of related criminal conduct to enhance a

defendant’s sentence for a separate crime does not constitute punishment for that

conduct within the meaning of the Double Jeopardy Clause. Id. at 399, 115 S. Ct.

at 2206; see also United States v. Carey, 943 F.2d 44, 46 n.4 (11th Cir. 1991)

(noting that although consideration of such criminal conduct has the practical

effect of penalizing the defendant for that conduct, it does not constitute

punishment for purposes of double jeopardy).

      As an initial matter, Williams argues throughout his brief that the district

court’s consideration of his credit card fraud violation during the sentencing phase

of his first trial was used to “enhance” his sentence. This contention is not

accurate. Rather, the district court declined to award Williams an acceptance of

responsibility reduction to his sentence because it found that he had not

voluntarily withdrawn from criminal conduct. See U.S.S.G. § 3E1.1 cmt. n.1(b).

Williams offers no authority for the proposition that a court’s denial of a

sentencing reduction amounts to punishment in the double jeopardy context.

      Williams also fails to persuade us that the holding of Witte is not

controlling in this case. He argues that Witte is distinguishable because the credit

                                          3
card fraud was not “true relevant conduct” for the purposes of sentencing him in

the FEMA claims case. Williams fails to explain what he means by “true relevant

conduct,” why he deems such conduct to be lacking in this case, or why the

existence of such conduct would provide a meaningful distinction between the

instant case and Witte. He does point out that the two cases are factually distinct

because the counts in the instant case, unlike Witte, bear little relation to one

another.1 Williams fails to explain why this distinction is meaningful, and we are

not persuaded that Witte is inapplicable here.2

       For the foregoing reasons, we affirm.

       AFFIRMED.




       1
               Williams cites as another distinction the fact that in Witte there were two
proceedings that advanced different statutory violations. This description is also applicable to
this case, where there was one proceeding for fraudulent FEMA claims and one for credit card
fraud.
       2
               Williams also asserts that his right against self-incrimination was violated because
his testimony from the sentencing hearing in his first case could have been used against him in
his second case. This argument was waived when he pleaded guilty in the second case. See
Smith, 532 F.3d at 1127. Furthermore, the argument is frivolous because Williams has not
established that his testimony was in any way involuntary. See Taylor v. Singletary, 148 F.3d
1276, 1283-84 (11th Cir. 1998)

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