           Case: 18-10002   Date Filed: 07/05/2019   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10002
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cr-20192-DPG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DAVID ANTHONY GORDON,

                                                         Defendant-Appellant.

                       ________________________

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

                               (July 5, 2019)

Before MARTIN, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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        David Gordon appeals his 120-month sentence for conspiring to import five

or more kilograms of cocaine in violation of 21 U.S.C. §§ 960(a)(1), (b)(1)(B)(i),

& 963. Gordon advances several arguments on appeal. He says the district court

erred in granting the government’s motion to transfer his sentencing to a different

district court judge; the government breached his plea agreement; and the sentence

appeal waiver in his plea agreement is unenforceable. Each of these arguments

fails. Gordon also lodges two challenges to his sentence, both of which are barred

by the sentence appeal waiver. On this record, we affirm in part and dismiss in

part.

                                       I.

        A grand jury returned a three-count indictment against Gordon and Brianna

Byrd for their involvement in a cocaine importation and distribution conspiracy.

Gordon later debriefed law enforcement on the facts underlying these charges. In

that debriefing, Gordon admitted he would receive cocaine imported from

Suriname by way of human couriers. Gordon, sometimes accompanied by a co-

conspirator, would then retrieve the cocaine from the couriers at a hotel. On the

day he and Byrd were arrested, Gordon picked up Byrd in his car and drove her to

the hotel. En route, Gordon told Byrd she would pick up a package for him from a

man at the hotel, who, unbeknownst to Gordon and Byrd, was working as a

confidential source. Via his cell phone, Gordon told his contact in Suriname,

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Brille,1 what Byrd looked like, and Brille sent Gordon a photo of the courier.

Upon arriving at the hotel, Gordon dropped off Byrd, told her she would be

meeting this man in the lobby, and gave her his cell phone so he could guide her.

Once inside the hotel, Byrd called Gordon and said she didn’t see the man.

Gordon told her to go to the front desk. Shortly thereafter, Gordon and Byrd were

arrested. Gordon maintained Byrd didn’t know what the package was or that drugs

were involved.

          Gordon’s case was initially assigned to District Judge Darrin P. Gayles.

While the case was with Judge Gayles, Gordon entered into a written plea

agreement with the government. In that document, Gordon agreed to plead guilty

to one count of conspiracy to import five or more kilograms of cocaine and waive

his right to appeal his sentence, unless it exceeded the statutory maximum, was the

product of an upward departure or variance “from the advisory guideline range that

the Court establishes at sentencing,” or if the government appealed. In exchange,

the government agreed to dismiss the remaining charges, as well as to recommend

safety valve relief and a reduction for acceptance of responsibility. See United

States Sentencing Guidelines §§ 3E1.1, 5C1.2. The safety valve recommendation

was conditioned on Gordon providing “a written statement truthfully setting forth

all information and evidence [he] ha[d] concerning the offense or offenses that


1
    Gordon told the government in his debriefing that he previously met Brille in person.
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were part of the same course of conduct or of a common scheme or plan as charged

in the indictment.” The acceptance of responsibility recommendation was

conditioned on Gordon not “commit[ting] any misconduct after entering into this

plea agreement, including but not limited to committing a state or federal offense .

. . or making false statements or misrepresentations to any governmental entity or

official.” The plea agreement specifically noted that district court was not bound

by any of its recommendations. Gordon pled guilty pursuant to that agreement.

      Before Gordon’s sentencing, he testified at Byrd’s trial as her witness.

District Judge Patricia A. Seitz presided over Byrd’s trial. The thrust of Gordon’s

testimony was that Byrd did not know she was picking up a package of cocaine.

      Believing his testimony to have been untruthful in various respects, the

government filed a sentencing memorandum arguing Gordon was no longer

eligible for an acceptance of responsibility reduction or safety valve relief. To the

contrary, the government argued that Gordon should get a longer sentence, because

he obstructed justice. See USSG § 3C1.1. Gordon, the government said, was no

longer eligible for safety valve relief because the contradictions between his trial

testimony and his debriefing “cast[] serious doubt on the veracity of much, if not

all, of the information that [Gordon] provided during his safety valve debrief[ing].”

And he wasn’t eligible for an acceptance of responsibility reduction because, given

his untruthful testimony, “it is impossible to know which, if any, account of [his]

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criminal conduct is accurate.” In the government’s view, Gordon “perjured

himself in an attempt to assist Byrd in her defense that she did not know she was

picking up cocaine when she went to meet the drug courier at the [hotel].”

      In support, the government highlighted a number of contradictions between

Gordon’s testimony at Byrd’s trial and documentary evidence. The government

also pointed to contradictions between Gordon’s testimony and his debriefing. For

instance, at Byrd’s trial, Gordon claimed that, while he was in the car with Byrd on

the way to the pick-up location, he did not speak with Brille over the phone. His

call log indicated otherwise. Neither did Gordon change his testimony after the

government confronted him with the log. Gordon testified he sent Brille a text

message asking what Byrd was wearing, when documentation of those text

messages made clear that Brille had sent them. Additionally, Gordon testified he

had never met Brille. But, in his debriefing, Gordon “reported being introduced in

person to ‘Brille’ . . . while out partying together” months before the events

underlying his and Byrd’s arrests.

      The government filed a motion to transfer Gordon’s sentencing to Judge

Seitz, because Judge Seitz presided over Byrd’s trial and thus observed Gordon

testify untruthfully. Gordon opposed the motion, arguing there was no authority

for the government’s request, so it was therefore “a blatant attempt at forum

shopping.” Judge Gayles granted the government’s motion.

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       At sentencing, Gordon reiterated his objection to the transfer to Judge Seitz,

but he couldn’t identify how he had been prejudiced. The government and Gordon

rehashed the arguments made in their memoranda regarding acceptance of

responsibility and safety valve relief. Then, after hearing testimony from Gordon

and Byrd, Judge Seitz found that Gordon “obstructed justice by his testimony

during the course of the trial” and added the two-level obstruction-of-justice

enhancement to Gordon’s offense level. See USSG 3C1.1. Judge Seitz also

denied him an acceptance of responsibility reduction and safety valve relief. Judge

Seitz calculated Gordon’s guidelines range as 120 months, the mandatory

minimum, and sentenced him to the 120 months.

       This is Gordon’s appeal.

                                              II.

       Gordon says the district court erred by granting the government’s motion to

transfer his sentencing from Judge Gayles to Judge Seitz. He is mistaken.

       “District Judges have the inherent power to transfer cases from one to

another for the expeditious administration of justice.” United States v. Stone, 411

F.2d 597, 599 (5th Cir. 1969).2 They “may by rule, order or consent transfer cases

between themselves.” Id. at 598; see also S.D. Fla. I.O.P. 2.07.00 (“Judges may


2
 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
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confer and directly transfer all or any part of a case on the judge’s docket to any

consenting judge. Notice shall be provided to all parties.”).

      Both parties agree we should review this issue for abuse of discretion. We

believe this is the correct standard of review. The power to transfer is expressly

provided by local rule. S.D. Fla. I.O.P. 2.07.00. And we review a district court’s

application of local rules for an abuse of discretion. Reese v. Herbert, 527 F.3d

1253, 1267 n.22 (11th Cir. 2008). “The abuse of discretion standard . . . allow[s] a

range of choice for the district court, so long as that choice does not constitute a

clear error of judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir.

1989).

      Granting the government’s motion to transfer was not a clear error of

judgment. Judge Seitz presided over Byrd’s trial and, therefore, observed

Gordon’s testimony. As the government’s sentencing memorandum made clear,

that testimony would be a focus of its arguments at sentencing. Judge Seitz’s

observation of Gordon’s testimony made her well-suited to find facts relevant to

issues that would arise at sentencing, such as whether an obstruction-of-justice

enhancement was warranted. Cf. United States v. Arango, 853 F.2d 818, 823 (11th

Cir. 1988) (noting that we review a trial court’s credibility determinations for clear

error because “[t]he trial court had the opportunity to hear and observe the

witnesses”). Thus, Judge Gayles could have reasonably determined that

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transferring the sentencing to Judge Seitz would further “the expeditious

administration of justice.” Stone, 411 F.2d at 599.

                                         III.

      Gordon says the government breached his plea agreement by failing to

recommend the acceptance of responsibility reduction and safety valve relief. He

is again mistaken.

      We review de novo whether the government has breached a plea agreement.

United States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (per curiam).

“[W]hen a plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct.

495, 499 (1971); see also United States v. Taylor, 77 F.3d 368, 370 (11th Cir.

1996) (“The government is bound by any material promises it makes to a

defendant as part of a plea agreement that induces the defendant to plead guilty.”).

“Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” United

States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).

      Gordon says he reasonably understood the government would recommend

safety valve relief and an acceptance of responsibility reduction, and that, in failing

to do so, the government breached the plea agreement. This would be true if the

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government’s agreement was not expressly limited by conditions that Gordon

failed to fulfill.

       Gordon should have known that testifying in a manner that contradicted his

debriefing, and that was inconsistent with documentary evidence would jeopardize

his eligibility for the government’s recommendations. Indeed, the government’s

agreement to recommend an acceptance of responsibility reduction was

conditioned on Gordon not “making false statements or misrepresentations to any

governmental entity or official.” Beyond that, a reasonable person in Gordon’s

position would have understood that his conflicting testimony would cast doubt on

the truthfulness of his debriefing. And a completely forthright debriefing is what

the plea agreement demanded of Gordon in order to trigger the government’s

obligation to recommend safety valve relief.

                                         IV.

       Gordon also offers three arguments challenging the validity of the sentence

appeal waiver in his plea agreement. None succeed.

       We review de novo the validity of a sentence appeal waiver. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).

       First, Gordon argues that the government’s breach of the plea agreement

invalidated the sentence appeal waiver. This argument fails, because the

government did not breach the plea agreement.

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      Second, Gordon argues that the district court’s failure to sentence him in

accord with the plea agreement invalidated the sentence appeal waiver. Not so.

The district court was neither a party to nor bound by the plea agreement. The

agreement’s plain terms and Federal Rule of Criminal Procedure 11 make that

clear. See Fed. R. Crim. P. 11(c)(1)(B) (specifically noting that a plea agreement

“may specify that an attorney for the government will . . . recommend . . . that a

particular provision of the Sentencing Guidelines . . . does or does not apply,” and

observing that “such a recommendation or request does not bind the court”).

      Third, Gordon says that the sentence appeal waiver was invalidated when

the district court deviated from the plea agreement without prior notice in violation

of Federal Rule of Criminal Procedure 11(c)(1)(C). Even if Rule 11(c)(1)(C) does

require prior notice, the rule does not apply here. Rule 11(c)(1)(C) provides that a

plea agreement “may specify that an attorney for the government will . . . agree

that a specific sentence or sentencing range is the appropriate disposition of the

case, or that a particular provision of the Sentencing guidelines, or policy

statement, or sentencing factor does or does not apply” and that “such a

recommendation or request binds the court once the court accepts the plea

agreement.” Fed. R. Crim. P. 11(c)(1)(C). But, in the plea agreement, the

government said only that it would recommend safety valve relief and an

acceptance of responsibility reduction—it did not thereby “agree that a specific

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sentence or sentencing range is the appropriate disposition” or that “a particular

provision of the Sentencing Guidelines . . . does . . . apply.” Id.

                                          V.

      Finally, Gordon levels two challenges to his sentence. Both are barred by

the sentence appeal waiver. Therefore, these components of Gordon’s appeal are

due to be dismissed. See, e.g., United States v. Buchanan, 131 F.3d 1005, 1008–09

(11th Cir. 1997) (per curiam).

      First, Gordon says that his 120-month sentence qualifies “as an upward

variance from the correct guidelines range” and therefore falls within the sentence

appeal waiver’s exception for upward departures or variances. But the appeal

waiver permitted no exception for upward departures or variances from the

“correct guidelines range.” Instead, it allowed an appeal when the district court

departed or varied upwardly “from the advisory guideline range that the Court

establishes at sentencing.” The district court did not deviate from the guideline

range it established. Thus, Gordon’s argument is barred by the appeal waiver.

      Second, Gordon says that his sentence was unreasonable. But the appeal

waiver did not include an exception for reasonableness challenges. Thus, this

argument is also barred by the appeal waiver.

      DISMISSED IN PART, AFFIRMED IN PART.




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