            Case: 19-13299     Date Filed: 05/01/2020    Page: 1 of 14



                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 19-13299
                            Non-Argument Calendar
                          ________________________

                 D.C. Docket No. 2:17-cr-00487-WKW-WC-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

LAQUANDA GILMORE GARROTT,

                                                              Defendant-Appellant.

                          ________________________

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

                                  (May 1, 2020)

Before WILLIAM PRYOR, MARTIN, and LUCK, Circuit Judges.

PER CURIAM:

     After she was convicted of eight counts of aiding and assisting in the filing of

false federal income tax returns, Laquanda Garrott was sentenced to seventy-
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two months’ imprisonment. On appeal, she asks us to vacate her conviction because

the district court participated in plea negotiations and her sentence because it was

substantively unreasonable. We affirm.

            FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        An investigation by the Internal Revenue Service revealed that Garrott, who

operated a small tax return preparation business, falsified and submitted around one

hundred tax returns on behalf of her customers. She received nearly $675,000 from

the Treasury as a result of the false returns. The government charged Garrott with

ten counts of aiding and assisting in the filing of false federal income tax returns, in

violation of 26 U.S.C. § 7206(2).

        Almost a year after the charges were filed, Garrott and the government entered

into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(A).1

Pursuant to the agreement, Garrott would plead guilty to one count, and the

government agreed to dismiss the remaining nine counts. The maximum sentence

would have been three years’ imprisonment. See 26 U.S.C. § 7206. A magistrate

judge accepted the plea agreement, and the district judge set a date for the sentence

hearing.




        1
           Rule 11(c)(1)(A), in relevant part, provides: “If the defendant pleads guilty . . . to . . . a
charged offense . . . , the plea agreement may specify that an attorney for the government
will . . . move to dismiss[] other charges.” If the district court accepts a plea agreement under this
rule, it is bound by its terms. Fed. R. Crim. P. 11(c)(4).
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       Before the sentence hearing, however, Garrott was arrested for violating the

conditions of her pretrial release by failing to pay rent and thus acquiring further

debt without the permission of her pretrial release officer. The district court found

that Garrott violated her pretrial release conditions, revoked her bond, and placed

her in custody pending sentencing.

       At the scheduled sentence hearing, the district court rejected Garrott’s plea

agreement:

               So we are facing, per charge—or at least per the charge of
       conviction, if I accepted the plea agreement, a statutory maximum of
       [thirty-six] months. The reason I don’t accept and will not accept the
       plea agreement at the moment—I might sentence within that; I
       just . . . won’t be bound to it—is because of the extensive criminal
       history, over 11 years, of—well many years, with [seventy-nine] bad
       check cases over the last 11 years and other offenses and I think some
       more recent ones I didn’t know about.

              So for that reason, Ms. Garrott, I am rejecting the plea agreement
       at this time in your case. And the provision I’m particularly rejecting
       is the dismissal of all the charges except for the one count.

       In a follow-up memorandum, the district court explained that it rejected the

plea agreement because it compelled an “unreasonable sentence.” Garrott had an

“extensive criminal history, including no less than eighty-seven previous

convictions,”2 the district court noted, and that, “[w]ith a total offense level of


       2
          Garrott had seventy-nine convictions for writing bad checks, four for theft, one for
reckless endangerment, one for domestic violence and harassment, one for giving a false name to
law enforcement, and one for driving with a revoked license and using a license plate to conceal
one’s identity.
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[twenty-two] and a criminal category of III, [her] guidelines range would have been

[fifty-one] to [sixty-three] months, without an acceptance-of-responsibility

reduction.” But the plea agreement, the court recognized, “limit[ed] Garrott’s

sentence to no more than the statutory maximum of [thirty-six] months’

imprisonment.” The court emphasized that, according to the sentencing factors set

forth in 18 U.S.C. § 3553(a), it had a “duty to impose a sentence sufficient, but not

greater than necessary, to comply with the statutory purposes of sentencing.’”

Considering these factors and Garrott’s “history and characteristics,” the court

determined that “a sentence of [thirty-six] months would not merely be unreasonable

but would be outright irrational”—especially because Garrott had served only

thirteen days in custody total for her prior convictions. Her prior conduct, the court

continued, was “rife with falsity and fraud” and “demonstrate[d] the impropriety of

a [thirty-six]-month sentence.” Aside from Garrott’s criminal history, the court

observed that her “relevant conduct, according to the presentence report, [was] much

more serious than the ten pending charges suggest”; she had “filed approximately

100 false tax returns—totaling $674,372 in fraudulent refunds—which were all paid

out by the IRS.” With “all ten counts in play,” the court said that Garrott could

“potentially be facing a [thirty]-year maximum sentence.”

      The court stated that it was “express[ing] no view on either the weight or the

nature of the evidence against Garrott or what sentence Garrott would receive if she

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were found guilty on some or all of the ten counts.” It noted that it could, however,

“express its view that a particular sentence [was] too lenient.” The court stressed

that it was “declin[ing] to say what an appropriate sentence [was]” and, instead, was

“only say[ing] that [thirty-six] months’ imprisonment [was] inappropriate.” Finally,

in a footnote, the district court informed the parties that another binding plea

agreement—whether under rule 11(c)(1)(A) or (C) 3—“would most likely be viewed

as a guess as to what the judge is thinking, or bait to catch the best deal.” The district

court said it would keep “an open mind as to what constitute[d] a reasonable

sentence.” Following the memorandum, Garrott withdrew her guilty plea.

       On the eve of trial, the parties reached another plea agreement.                  This

agreement, made pursuant to rule 11(c)(1)(C), proposed to bind the district court to

a sentence at the bottom of the guidelines range so long as Garrott pleaded guilty to

two of the ten counts. At a hearing, the district court rejected the agreement,

reiterating its position that a binding plea agreement “would be seen as manipulating

the court” and that it could not participate in the plea negotiations. When asked

whether she was ready to proceed to trial, Garrott told the court that she did not

“know what other option there [was] . . . other than . . . pleading guilty to all of the

counts in the indictment.” The court responded, “I mean, there’s always a [rule


       3
         In a plea agreement under rule 11(c)(1)(C), the government “agree[s] that a specific
sentence or sentencing range is the appropriate disposition of the case.” Such a recommendation
binds the district court once it accepts the plea agreement. Fed. R. Crim. P. 11(c)(1)(C).
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11(c)(1)(B) agreement]. I don’t know—that’s what most courts do is a (B). I’m just

saying.” “[W]hether she pleads to one or ten,” the court continued, “isn’t going to

affect the sentence . . . is my point. This is all about sentencing. And sentencing is

the court’s prerogative, and I don’t want to be manipulated into caps, bottoms,

whatever, when I’ve told you once that this is a serious case.” The court concluded

the hearing by informing Garrott that it “[could not] participate in [plea agreement]

discussions” and that its rejection of the plea was not driven by the number of counts

she pleaded to; instead, “[it was] driven by what is a reasonable sentence.”

      On the first day of trial, Garrott notified the district court that the government

offered her another plea agreement, which required her to plead guilty to two counts.

She told the district court that she had rejected this plea agreement. The trial

proceeded, and she was ultimately convicted of eight of the ten counts.

      In its presentence investigation report, the probation office calculated

Garrott’s offense level at twenty-two, her criminal history score at nine, and her

criminal history category at IV. The probation office did not include a three-level

reduction for accepting responsibility. Based on her offense level and criminal

history, Garrott’s guidelines range was sixty-three to seventy-eight months’

imprisonment. The parties did not object to the presentence report.

      At the sentence hearing, Garrott asked for a downward variance from her

guidelines range because she had accepted responsibility for her conduct before trial.

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She claimed that she had admitted to some wrongdoing when she pleaded guilty

twice and that she withdrew those pleas only because the district court rejected the

plea agreements. The government opposed the downward variance because Garrott

had violated her conditions of pretrial release, had an extensive criminal history, and

received a large sum of money as a result of the scheme. However, the government

did acknowledge that Garrott accepted responsibility for her crimes at the sentence

hearing and attempted to do so “in the past.”

      The district court denied the variance because Garrott violated the conditions

of her pretrial release and did not accept responsibility by pleading guilty. The

district court sentenced Garrott to seventy-two months’ imprisonment and ordered

her to pay restitution in the amount of $56,897. The district court noted that it would

have imposed this same sentence even if it found that she had accepted

responsibility. The district court emphasized that “the problem . . . driving the size

of [her] sentence” was her extensive criminal history. Pointing to the § 3553(a)

factors, the district court explained that (1) Garrott’s conduct contributed to the

rampant tax fraud that was going on in Montgomery at the time, (2) the crime and

the amount of loss were serious, (3) the sentence was appropriate to deter “other

people who might think that they could help cheat the government,” and (4) it

wanted to protect the public from any further crimes Garrott would commit. Garrott




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objected that the sentence was substantively unreasonable, but the district court

overruled her objection. This is her appeal.

                                   DISCUSSION

      Garrott raises two issues on appeal: First, she contends the district court

improperly participated in her plea negotiations with the government. Second, she

argues her sentence was substantively unreasonable.

                                  Plea Negotiations

      Garrott contends that her conviction should be vacated because the district

court inappropriately participated in plea negotiations when it rejected her first plea

agreement and stated that the thirty-six-month sentence the parties agreed to was

unreasonable considering her criminal history. She claims that by rejecting the

agreement for this reason, the district court “implied that the parties needed to craft

an agreement that would allow for a greater term of imprisonment.” She also argues

that the district court participated in plea negotiations when it stated in its

memorandum that a binding plea agreement under rule 11(c)(1)(A) or (C) “would

most likely be viewed as a guess as to what the judge is thinking, or bait to catch the

best deal” and when it told the parties at a hearing that they could enter into a non-

binding agreement under rule 11(c)(1)(B). Based on these statements, Garrott

claims that the district court “effectively laid out what plea agreement it would find




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acceptable, namely a plea under [r]ule 11(c)(1)(B) that would permit the court to

sentence . . . Garrott to more than [thirty-six] months.”

      Because Garrott did not raise these objections below, we review for plain

error. United States v. Castro, 736 F.3d 1308, 1313 (11th Cir. 2013). In doing so,

we must examine the entire record. United States v. Harrell, 751 F.3d 1235, 1237

(11th Cir. 2014). To succeed under the plain-error rule, Garrott must show that “the

district court commit[ted] an error that [was] plain, affect[ed] [her] substantial rights,

and ‘seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings.’” Id. at 1236 (quoting United States v. Vonn, 535 U.S. 55, 63 (2002)).

An error is plain if “the error . . . is obvious and is clear under current law,” United

States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012), and an error is not obvious

or clear when “‘[n]o Supreme Court decision squarely supports’ the defendant’s

argument, ‘other circuits . . . are split’ regarding the resolution of the defendant’s

argument, and ‘we have never resolved the issue,’” id. (quoting United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)).

      Rule 11(c)(1) provides that “an attorney for the government and the

defendant’s attorney . . . may discuss and reach a plea agreement,” but “[t]he court

must not participate in these discussions.” Rule 11(c)(1) “creates a ‘bright line rule’

that prohibits ‘the participation of the judge in plea negotiations under any

circumstances.’” Harrell, 751 F.3d at 1239 (quoting United States v. Johnson, 89

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F.3d 778, 783 (11th Cir. 1996)). The rule serves two purposes: it acts as a “safeguard

[to] the trial judge’s actual neutrality” and “protect[s] [against] the appearance of

impartiality.” United States v. Tobin, 676 F.3d 1264, 1303–04 (11th Cir. 2012)

(citing United States v. Adams, 634 F.2d 830, 840–41 (5th Cir. 1981)).

       Here, there was no error. The district court was well within its authority to

reject the plea agreement as unreasonable. See United States v. Bean, 564 F.2d 700,

703–04 (5th Cir. 1977) (“A decision that a plea bargain will result in the defendant’s

receiving too light a sentence under the circumstances of the case is a sound reason

for a judge’s refusing to accept the agreement.”);4 see also Fed. R. Crim. P.

11(c)(5)(A) (requiring a district court to inform the parties that it rejected a rule

11(c)(1)(A) or (C) plea agreement “on the record and in open court”).

       The record shows that the district court did not participate in the parties’ plea

negotiations. The district court denied Garrott’s motion for a status conference,

explaining that the “motion border[ed] on an invitation for the court to engage in

plea negotiations, which of course it [could not] do.” The district court stated that it

was “express[ing] no view on either the weight or the nature of the evidence against

Garrott or what sentence Garrott would receive if she were found guilty on some or

all of the ten counts.” At the hearing on the second plea agreement, the district court



       4
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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said again that it “[could not] participate in [plea agreement] discussions.” The

district court’s statements here were unlike those we’ve held to be engaging in plea

negotiations. See, e.g., United States v. Diaz, 138 F.3d 1359, 1361 (11th Cir. 1998)

(concluding that the district court participated in plea discussions when it listened to

the government’s summary of the evidence, told the defendant that the evidence

against him was “compelling,” and told the defendant that he needed “to think about

[his] options” “because if this is a one-day or two-day trial, [he’s] going to risk ten

years in prison”); Adams, 634 F.2d at 836 (holding that the district court participated

in plea discussions when it discussed the bargain with the parties in chambers and

“offered a plea bargain to [the defendant] on [its] own initiative”).

      Even if the district court erred when it mentioned the non-binding plea under

rule 11(c)(1)(B), the error was not plain. We have never held, and Garrott doesn’t

cite to any case holding, that a district court violates rule 11(c)(1) when it rejects a

plea agreement because it doesn’t want to be bound to a specific sentence under rules

11(c)(1)(A) and 11(c)(1)(C). We thus conclude that the district court did not plainly

err when it rejected Garrott’s plea agreements.

           Whether Garrott’s Sentence Was Substantively Unreasonable

      Garrott next argues that her seventy-two month sentence was substantively

unreasonable because the district court gave too much weight to her criminal history,

erroneously found that she did not accept responsibility for her conduct, gave too

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much weight to the seriousness of the loss amount, sought to deter Garrott from

criminal conduct that she could no longer partake in, and imposed a sentence that

was disproportionate to other defendants in similar circumstances.

      The party challenging the sentence—here, Garrott—bears the burden of

establishing that her sentence was substantively unreasonable. United States v.

Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). Specifically, we apply the deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We

give “due deference” to the district court “because it has an institutional advantage

in making sentencing determinations.” United States v. Shabazz, 887 F.3d 1204,

1224 (11th Cir. 2018) (internal quotation marks omitted). In evaluating the

reasonableness of the sentence, we consider the totality of the circumstances. United

States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017).

      To determine an appropriate sentence, district courts must consider

the § 3553(a) sentencing factors. “A district court abuses its considerable discretion

and imposes a substantively unreasonable sentence only when it ‘(1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error of

judgment in considering the proper factors.’” United States v. Rosales-Bruno, 789

F.3d 1249, 1256 (11th Cir. 2015) (quoting United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010) (en banc)).

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      Garrott’s sentence was not substantively unreasonable. Seventy-two months’

imprisonment is considerably lower than the statutory maximum of 288 months and

within the guidelines range of sixty-three to seventy-eight months—both signs that

the sentence was reasonable. See United States v. Stanley, 739 F.3d 633, 656 (11th

Cir. 2014) (“[W]hen the district court imposes a sentence within the advisory

[g]uidelines range, we ordinarily will expect that choice to be a reasonable one. A

sentence imposed well below the statutory maximum penalty is an indicator of a

reasonable sentence.” (citation and internal quotation marks omitted)). The district

court did not abuse its discretion when it weighed Garrott’s criminal history and the

loss she caused over other factors. “District courts have broad leeway in deciding

how much weight to give to prior crimes the defendant has committed.” Rosales-

Bruno, 789 F.3d at 1261. Garrott’s criminal history, which the district court

emphasized was “the problem . . . driving the size of [her] sentence,” included

87 crimes that were, like the ones in this case, based on theft and fraud. And the

presentence investigation report showed that Garrott filed approximately one

hundred false tax returns, which resulted in a $674,372 loss to the Treasury.

      Garrott cites to two cases—United States v. Fox, 626 F. App’x 841 (11th Cir.

2015) (unpublished), and United States v. Angulo, 638 F. App’x 856 (11th Cir.

2016) (unpublished)—as evidence that her sentence was disproportionate compared

to defendants “with similar records who have been found guilty of similar conduct.”

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These cases do not show disparate treatment because Garrott had a more severe,

extensive, and long-standing criminal history, which, as the district court explained,

made all the difference in this case. See Fox, 626 F. App’x at 842 (criminal history

category of II); Angulo, 638 F. App’x at 859 (criminal history category of I). The

sentencing record reflects that the district court reviewed the relevant § 3553(a)

factors, did not give significant weight to an improper or irrelevant factor, and

committed no clear error of judgment in its sentencing decision.

                                  CONCLUSION

      For these reasons, we conclude that the district court did not plainly err in

participating in Garrott’s plea negotiations, and Garrott’s sentence was not

substantively unreasonable.

      AFFIRMED.




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