           Case: 16-16918   Date Filed: 10/02/2017   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16918
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-20366-CMA-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

ANGELO ANTON SHAW,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 2, 2017)

Before HULL, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:
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      Angelo Aton Shaw was convicted, after a jury trial, of possessing a

controlled substance with intent to distribute and possessing a firearm in

furtherance of a drug trafficking crime. He pled guilty to possessing a firearm

while subject to a protective order. This is his appeal of the 97-month sentence

and the $2,500 fine both imposed as a result of these convictions. Shaw argues

that the district court erred (1) in granting the government’s for-cause challenges to

five prospective jurors; (2) in denying the application of a sentence reduction for

acceptance of responsibility; and (3) in imposing the $2,500 fine. After careful

review, we affirm Shaw’s conviction and sentence except as to the fine and we

vacate his sentence as to the fine and remand for resentencing.

                                          I.

      In the early morning of March 26, 2016, a police officer attempted to stop

Shaw, who was riding a bicycle without a light. Shaw fled and was later caught

with a firearm, thirty bags of crack cocaine, and twenty-one bags of heroin in his

possession. At the time of his arrest, Shaw was subject to a domestic violence

injunction, which prohibited him from possessing a firearm.

      On May 19, 2016, Shaw was indicted, charged with three counts: possession

with intent to distribute a controlled substance, in violation of 21 U.S.C.

§ 841(a)(1) (Count One); possession of a firearm in furtherance of a drug-

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); and


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possession of a firearm and ammunition while subject to a protective order, in

violation of 18 U.S.C. § 922(g)(8) (Count Three). On July 14, 2016, Shaw pled

guilty to Count Three.

                                 A. JUROR SELECTION

      The following day, jury selection began for Shaw’s trial on Counts One and

Two. At the end of voir dire, the government moved to strike jurors for cause, five

of whom are the subject of this appeal.

      Juror 3—In Juror 3’s questionnaire, she wrote “I don’t alway[s] side with

the brutality of the police department against civilians.” In response to the district

judge’s questioning, Juror 3 said: “I just don’t always side with the police

department . . . how they going about their cruelty towards citizens.” The

exchange continued:

      Judge:        And do you come to court with a preconception, are you going
                    to hold the [g]overnment to an even higher standard or no?
      Juror 3:      No. I hold it—
      Judge:        You’ll hold them what? To what, I’m sorry?
      Juror 3:      I’ll hold the [g]overnment to the high standard.
      Judge:        To the high standard I announced, not some other higher
                    standard you have?
      Juror 3:      No.

      Juror 6—In Juror 6’s questionnaire, he wrote that he’d been arrested 15

years ago and that his arrest might affect his ability to be fair and impartial. The

district judge questioned him further:



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      Judge:        And you wrote about something that occurred about 15 years
                    ago. Is there anything about that experience that would affect
                    your ability to judge this case?
      Juror 6:      Yes, it—it will be. I am going to try to be fair, but maybe—
                    maybe not.
      Judge:        You don’t think you can be fair?
      Juror 6:      I don’t think so.
      Judge:        You served last year as a juror in another case.
      Juror 6:      Yes, it was different. Every time I come here, I am reminded
                    about my bad experience.
      Judge:        Your bad experience?
      Juror 6:      Yes.
      Judge:        Your bad experience didn’t affect you last year, but you think
                    it’s going to affect you—
      Juror 6:      No, no, no. I’m trying to say I am trying to go over this
                    problem, but every time I come here—I am going to be fair, I
                    am going to try to be fair.

Upon further questioning by the attorney for the government, Juror 6 elaborated

that he “was arrested about 15 years ago, and I think I didn’t fail nothing, nothing,

but the officer said I did.” When then asked if he could be an impartial juror, he

first responded “I am going to try to,” and then on further prompting, said his past

experiences would not impact his decisions.

      Juror 10—Juror 10 raised her hand when the district judge asked the panel

if anyone thought they could not “sit in judgment of others or would be

uncomfortable in doing so for religious or moral reasons.” On further questioning,

she said:

      Juror 10:     I’m a Christian.
      Judge:        Um-hmm.
      Juror 10:     And my pastor and the Bible says we shouldn’t judge anyone.
                    And I feel very uncomfortable to judge.
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      Judge:        Okay. So you cannot sit in judgment?
      Juror 10:     No.

      Juror 14—On his questionnaire, Juror 14 reported that he was a criminal

justice major who “believe[d] the current criminal justice system has way too

many flaws and errors,” and that his brother had faced drug charges earlier that

year. After being told about Shaw’s charges, Juror 14 raised his hand to indicate

that the nature of the case could affect his ability to be impartial. He mentioned his

brother’s recent similar drug charge and said he was “trying to stay away from that,

just stay on the right path, I don’t want to get involved.” When the attorney for the

government later asked Juror 14 if he could be impartial, he responded: “Based on

what I’ve seen in class . . . everything’s about the law, not really about what’s true

or what actually happened, whoever is the best at proving the law, I don’t think I

can be fair based on what I know.”

      Juror 21—In her questionnaire, Juror 21 wrote that her ability to be fair and

impartial might be affected because: “I avoid judging others—I think life

circumstances are part of our evolutionary process.” When the district judge asked

whether anyone would be uncomfortable sitting in judgment of others for religious

or moral reasons, she responded: “I have a hard time with judgment or judging

others because I have been working on myself personally a lot not to be

judgmental or judging other people.” Although she had previously served on a



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jury, Juror 21 clarified that that was before she had concerns about sitting in

judgment.

      After questioning by both the district judge and the attorney for the

government, Shaw’s attorney attempted to rehabilitate these jurors. Shaw’s

attorney asked Jurors 3, 10, and 14 if they could follow the court’s instructions and

return a verdict of guilty if the government met its burden. All three responded

“Yes.” When Shaw’s attorney similarly tried to rehabilitate Juror 21, she

responded that it would be very difficult for her to judge, but she believed she

could. When the government moved to exclude Juror 3 for cause, Shaw’s attorney

argued that she had been rehabilitated. The district court judge responded:

      I don’t believe she was rehabilitated. I don’t think there’s quite such a
      thing . . . . Had she said that I would have trouble sitting in judgment
      if I don’t hear from Mr. Shaw, and [the attorney for the government]
      rehabilitated her by saying yes, but if I don’t hear from him, I promise
      to be fair, I dare say you would be seeking a cause challenge because
      the first response was the more truthful of the two.

In general, the district judge found that statements made by the challenged jurors to

Shaw’s attorney were outweighed by their earlier statements to the court. For

example, when Shaw’s attorney objected to the removal of Juror 10 for cause, the

district judge responded: “I take her answers to me as truthful. I take her later

answers to you in response to prodding, leading questions as being less than

truthful.” In the end, fifteen jurors were removed for cause, including Jurors 3, 6,

10, 14, and 21.
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                                   B. SENTENCING

      The jury found Shaw guilty of Counts One and Two. In preparation for

sentencing, a probation officer prepared a presentence investigation report

(“PSR”). To calculate Shaw’s sentence, the PSR grouped Counts One and Three

based on United States Sentencing Guidelines § 3D1.2(c), and then used the most

serious count, Count Three, to set the offense level. Count Two was kept separate

because it required a consecutive sentence. The PSR determined that no

enhancements or reductions were merited, and set the guideline imprisonment

range at 37 to 46 months for Counts One and Three, to be followed by a

consecutive term of not less than five years for Count Two. The PSR also

calculated the fine range to be between $15,000 and $1,000,000, but noted that

Shaw had been unemployed since 2012 and appeared to have no assets. Based on

a number of outstanding bills and child support arrearages, the PSR determined

that Shaw had a negative net worth of $29,928, and that he did not appear able to

pay a fine.

      At sentencing, Shaw argued that he should be eligible for an acceptance of

responsibility sentence reduction based on his guilty plea to Count Three. The

court found that Shaw was “not deserving of points off for accepting responsibility

for his actions in full,” and sentenced Shaw to 97-months imprisonment and a




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$2,500 fine. Shaw objected to both the court’s decision not to apply the

acceptance of responsibility reduction and to the assessment of the $2,500 fine.

                                          II.

      First, Shaw appeals the district court’s decision to grant the government’s

for-cause challenges to five prospective jurors. “We review a district court’s

decision to strike a prospective juror for cause for abuse of discretion.” United

States v. Abraham, 386 F.3d 1033, 1035 (11th Cir. 2004).

      The Constitution provides the right to an impartial jury. U.S. Const. Amend.

VI. A juror is impartial when he “can lay aside his opinion and render a verdict

based on the evidence presented.” Patton v. Yount, 467 U.S. 1025, 1037 n.12, 104

S. Ct. 2885, 2891 n.12 (1984). If a court determines that a juror cannot be

impartial, that juror may be removed for cause. In reviewing for-cause challenges,

we recognize that the trial record may not adequately capture the examining

judge’s impressions of jurors. As such, we give deference to the district court,

which has the advantage of having seen and heard the jurors. See United States v.

Brown, 441 F.3d 1330, 1357 (11th Cir. 2006). “[T]here are few aspects of a jury

trial where we would be less inclined to disturb a trial judge’s exercise of

discretion than in ruling on challenges for cause in empanelling of a jury.” United

States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983).




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      Shaw argues that five defense-friendly jurors were improperly removed for

cause, and that as a result, the government effectively received more peremptory

challenges than it was allotted by law. He points specifically to Jurors 10 and 21,

who expressed concern that their beliefs would not allow them to sit in judgment,

and Jurors 3, 6, and 14, who expressed concerns about their impartiality based on

experiences with the criminal justice system.

      On this record, we cannot say that the district court abused its discretion in

removing the five challenged jurors for cause. In her questionnaire, Juror 3

expressed concerns about police brutality impacting her impartiality and upon

questioning, seemed to say she would hold the government to a higher standard

than the one the court provided. While Juror 6 eventually said he would try to be

fair, he initially said he didn’t think he could be, based on his prior arrest. Juror 14

said his impartiality would be impacted by his knowledge as a criminal justice

major, but more importantly, by his brother’s recent arrest for similar charges. In

each of these cases, the district court did not abuse its discretion in finding that

these jurors would not lay aside their opinions and decide the case impartially.

There was no abuse of discretion as to Jurors 10 and 21 either. While Shaw argues

that their stated religious or moral beliefs did not rise to the level of bias, both

jurors expressed concern about their ability to sit fairly in judgment. The district

court did not abuse its discretion in removing them for cause.


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      The cases Shaw cites for support do not require a different result. Shaw

provides us with no examples in which this or any other court reversed a trial court

for inappropriately choosing to excuse a juror for cause. Indeed, the only cases

Shaw offers in which a trial court was found at fault involve a judge’s refusal to

excuse a juror for cause despite obvious signs of bias. In one case, for example, a

juror personally knew the plaintiff and potential witnesses. In all the other cases

involving “garden-variety expressions of bias or doubt,” we deferred to the trial

court. These cases counsel in favor of deference to the trial judge here.

      The record does not bear out Shaw’s characterization of the district judge’s

comments as foreclosing rehabilitation entirely. Instead, the district judge merely

found specific attempts at rehabilitation to be insufficient. For the most part,

Shaw’s rehabilitation consisted of his asking jurors if they could be fair, and the

jurors responding with a one-word affirmance. We conclude the district judge did

not abuse its discretion by weighing the jurors’ earlier, ambiguous answers to the

court’s questions more heavily than later cursory responses to Shaw’s attorney.

      Because the district court did not abuse its discretion in removing the five

challenged jurors for cause, we in turn reject Shaw’s argument that the government

effectively received five additional peremptory challenges. We affirm the district

court’s decision to excuse the challenged jurors for cause and affirm Shaw’s

convictions as well.


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                                          III.

      Second, Shaw appeals the district court’s refusal to reduce his sentence for

acceptance of responsibility. We review a district court’s decision declining to

apply the acceptance of responsibility reduction for clear error. United States v.

Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005).

      Guidelines § 3E1.1 allows for an offense level decrease “[i]f the defendant

clearly demonstrates acceptance of responsibility for his offense.” USSG

§ 3E1.1(a). “A district court’s determination that a defendant is not entitled to

acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” United

States v. Amedeo, 370 F.3d 1305, 1320–21 (11th Cir. 2004) (quotation omitted).

      The district court’s refusal to apply the acceptance of responsibility

reduction was not clear error. First, while entering a guilty plea before trial and

truthfully admitting the relevant convict “will constitute significant evidence of

acceptance of responsibility,” USSG § 3E1.1 cmt. n.3, “[a] guilty plea does not

automatically entitle a defendant to a reduction for acceptance of responsibility,”

United States v. Rowland, 906 F.2d 621, 622 (11th Cir. 1990). Second, this circuit

has determined that “[a] defendant who fails to accept responsibility for all the

crimes he has committed and with which he has been charged is entitled to nothing

under § 3E1.1.” United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001).


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Based on the Sentencing Guidelines commentary and our circuit precedent, we

find it was not clear error for the district court to refuse to apply the acceptance of

responsibility reduction when Shaw pled guilty to one of his three charged counts.

                                          IV.

      Third, Shaw appeals the district court’s imposition of a $2,500 fine. We

review a district court’s finding that a defendant is able to pay a fine for clear error.

United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006) (per curiam).

      The Sentencing Guidelines require the court to “impose a fine in all cases,

except where the defendant establishes that he is unable to pay and is not likely to

become able to pay.” USSG § 5E1.2(a). The Guidelines also provide a list of

factors that the court is required to consider when setting the amount of the fine,

including “the defendant’s ability to pay” and “the burden that the fine places on

the defendant and his dependents relative to alternative punishments.” Id.

§ 5E1.2(d). The district court is not required “to make specific findings of fact

with respect to the Sentencing Guideline factors as long as the record reflects the

district court’s consideration of the pertinent factors prior to imposing the fine.”

United States v. Hernandez, 160 F.3d 661, 665–66 (11th Cir. 1998) (quotation

omitted and alteration adopted). And when the district court has “reviewed the

[PSR] before imposing the fine and heard argument of counsel about the fine” we

may infer that the pertinent factors were considered. United States v. McNair, 605


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F.3d 1152, 1234 (11th Cir. 2010). However, “when the record provides no

guidance as to the court’s reason(s) for imposing a fine, we must remand the case

so that the necessary factual findings can be made.” Hernandez, 160 F.2d at 666.

      This record includes no evidence offered to contradict the PSR’s

determination that Shaw was unable to pay a fine. The district court’s decision to

fine Shaw $2,500 without explanation was therefore clear error. The PSR

described Shaw as being unemployed since 2012 and having a negative net worth

of $29,928, largely as a result of outstanding child support arrearages. The PSR

concluded: “Based on the defendant’s present financial situation and need to

support his minor children, it appears he does not have the ability to pay a fine.”

Nevertheless, the district court required Shaw to pay a fine of $2,500, with no

discussion whatsoever. Shaw objected to the fine as “based on a lack of record

evidence,” but while the court acknowledged that objection, no other support was

provided. In United States v. Gonzalez, 541 F.3d 1250 (11th Cir. 2008), we

vacated and remanded for resentencing where the court imposed a $250,000 fine

without explanation, and the PSR reflected that the defendant lacked the ability to

pay a fine. Id. at 1256–57. While Shaw’s fine in this case is certainly smaller than

that in Gonzalez, it is equally unsupported by any basis for rejecting the

recommendation in the PSR. We therefore vacate Shaw’s sentence as to the fine

and remand for resentencing in that regard.


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AFFIRMED IN PART, VACATED AND REMANDED IN PART




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