         Case: 13-12918   Date Filed: 03/12/2015   Page: 1 of 14


                                                    [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                  ____________________________

                          No. 13-12918
                  ____________________________

             D.C. Docket No. 1:11-cr-00012-WLS-TQL-1


UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                          versus

CARLOS JOHNSON,

                                                    Defendant-Appellant.

                  ____________________________

                          No. 13-12920
                  ____________________________

             D.C. Docket No. 1:11-cr-00012-WLS-TQL-2


UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                          versus

KELVIN JOHNSON,

                                                    Defendant-Appellant.
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                            ____________________________

                      Appeals from the United States District Court
                          for the Middle District of Georgia
                          ____________________________

                                      (March 12, 2015)

Before TJOFLAT and JILL PRYOR, Circuit Judges, and MOODY, * District
Judge.

PER CURIAM:

       In this consolidated appeal, Carlos Johnson and Kelvin Johnson (collectively

the “Johnson brothers”) challenge their life sentences, which were imposed after

they both pleaded guilty to one count of conspiracy to possess with intent to

distribute cocaine and “crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii), (iii), 846. The Johnson brothers argue that their pleas were not

knowing and voluntary because the government withheld information prior to their

pleas that was later used to enhance their sentencing guidelines ranges. As such,

the Johnson brothers contend that the sentence appeal waivers contained within

their plea agreements no longer apply, and they may challenge on appeal the

district court’s decisions regarding the calculation of their guidelines ranges. The




       *
         Honorable James S. Moody, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.
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Johnson brothers also contend that both of their counsel were ineffective for failing

to impeach a witness during the sentencing hearing.

       After careful review of the parties’ briefs and the relevant portions of the

record, and having had the benefit of oral argument, we affirm.

                                    I. BACKGROUND

       On March 9, 2011, a federal grand jury in the Middle District of Georgia

indicted the Johnson brothers along with seventeen other defendants for their

involvement in a large-scale drug operation in Southwest Georgia between 2008

and 2011. The Johnson brothers were arrested on March 16, 2011. On August 12,

2011, Carlos pleaded guilty pursuant to a plea agreement to one count of

conspiracy to possess with intent to distribute cocaine and “crack cocaine,” in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (iii), 846. 1 Following his

brother’s plea, Kelvin pleaded guilty pursuant to a plea agreement to the same

offense on August 17, 2011.

       As part of their plea agreements, the Johnson brothers acknowledged that the

district court was not bound by any estimate of the advisory sentencing range that

they may have received from either their attorneys, the government, or the United

States Probation Office. The Johnson brothers also agreed that they would not be

permitted to withdraw their pleas on the basis that they received an estimate of the

       1
       Carlos also pleaded guilty to one forfeiture count, but he does not challenge that count
on appeal.
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advisory sentencing range that differed from the range computed by the Probation

Office and accepted by the district court as the correct advisory sentencing range.

The Johnson brothers averred that they understood that the district court would not

be able to compute an advisory guideline sentencing range until the Probation

Office prepared presentence investigation reports (“PSRs”). Finally, the Johnson

brothers agreed that after a sentence was imposed by the district court, they waived

their right to appeal that sentence unless certain enumerated exceptions were met.

The district court reviewed each of these provisions with the Johnson brothers and

confirmed that both understood these provisions.

      After the Johnson brothers entered their guilty pleas, both entered into

cooperation agreements with the government to assist in ongoing criminal

investigations. The government sought release of the Johnson brothers prior to

sentencing to facilitate their cooperation, and the Johnson brothers were furloughed

for sixty days. After several continuances, sentencing was set for June 13, 2013.

      Before the Johnson brothers were sentenced, the Probation Office prepared

several PSRs. The initial PSR filed by the Probation Office on October 27, 2011,

for Carlos calculated an adjusted total offense level of 39 and a criminal history

category of IV, which resulted in an advisory guideline range of 360 months’ to

life imprisonment. Similarly, Kelvin’s initial PSR filed on May 21, 2012,

calculated an adjusted total offense level of 39 and a criminal history category of


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III, which resulted in an advisory guideline range of 324 to 405 months’

imprisonment. On July 5, 2012, the Probation Office filed final PSRs for both

Kelvin and Carlos, which contained the same guidelines calculations as the initial

PSRs.

        On June 10, 2013, the Probation Office filed revised final PSRs for the

Johnson brothers, which added a two-level enhancement for bribery of a law

enforcement officer in facilitation of the offense, increasing the Johnson brothers’

adjusted total offense levels to 41. The revision did not affect Carlos’s advisory

guideline range, but increased Kelvin’s advisory guideline range to 360 months’ to

life imprisonment. The Probation Office filed second revised final PSRs for the

Johnson brothers on June 11, 2013, which, in addition to the bribery enhancement,

reflected revocation of the Johnson brothers’ three-level reduction for acceptance

of responsibility due to illegal behavior while the Johnson brothers were

furloughed. Consequently, under the second revised final PSR, Carlos’s amended

adjusted total offense level was 43; with a criminal history category of IV, Carlos’s

amended advisory guideline range was life imprisonment. Kelvin’s amended

adjusted total offense level was also 43; with a criminal history category of III,

Kelvin’s amended advisory guideline range was life imprisonment.

        At the sentencing hearing on June 13, 2013, counsel for both Carlos and

Kelvin objected to the two-level enhancement for bribery of a law enforcement


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officer and to the denial of the reduction for acceptance of responsibility. The

government produced three witnesses at the sentencing hearing in support of the

bribery enhancement and the denial of credit for acceptance of responsibility: (1)

William Franklin Green, a Drug Enforcement Agency Task Force Agent, (2)

Fredrick Harris, and (3) Stephanie Rogers. Kelvin Johnson also testified during

the sentencing hearing.

      Agent Green testified that an individual named Jarrod Sims, who was

cooperating with the authorities, informed law enforcement that Robert Nicholson,

a member of the Pataula Drug Task Force, was selling information to the Johnson

brothers about drug investigations. Sims informed Agent Green that he acted as a

middleman to facilitate the transfer of information from Nicholson to the Johnson

brothers. According to Agent Green, this information came to light in 2010, well

before the Johnson brothers were arrested and entered their pleas. Nicholson was

later fired and prosecuted for his conduct. Nicholson entered a plea agreement in

2012, in which he agreed as a basis for the plea that he sold information through

Sims to the Johnson brothers. Agent Green also confirmed that the Johnson

brothers were released on furlough to aid the authorities in investigating dog

fighting in Alabama. At no time were the Johnson brothers requested to assist the

authorities by buying or selling drugs.




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      Next, Fredrick Harris, who was arrested about a year after the Johnson

brothers for his involvement in the conspiracy, testified that he and a cousin of the

Johnson brothers purchased drugs on nine or ten occasions from the Johnson

brothers while they were on furlough cooperating with the government. He also

testified that he and his brother purchased drugs from Carlos on eight or nine

occasions while Carlos was detained by calling him on a cell phone. According to

Harris, Carlos then directed Stephanie Rogers to deliver the drugs on his behalf.

Stephanie Rogers, the Johnson brothers’ aunt, testified that she transported drugs

for Carlos while he was furloughed. She also stated that she delivered drugs to

Carlos and Kelvin in Alabama and that she was usually paid by Carlos, but she

admitted that on one occasion she was paid partially by Kelvin. She denied any

involvement with Fredrick Harris.

      Finally, Kelvin testified. He denied participating in illegal activity while on

furlough. He explained that he gave Rogers money, but that it was not for drugs.

He also stated that Carlos did not participate in illegal activity while furloughed.

On cross examination, Kelvin admitted to using a cell phone while incarcerated.

      After hearing the evidence, the district court overruled the objections,

accepted the guidelines calculations as presented in the second final revised PSRs,

and sentenced both Carlos and Kelvin to life imprisonment. This consolidated

appeal ensued.


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                                      II. DISCUSSION

A. The Knowing and Voluntary Nature of the Pleas

       The crux of this appeal is whether the Johnson brothers’ pleas were knowing

and voluntary. If they were knowing and voluntary, then their arguments

regarding the district court’s calculation of their guidelines range would be

precluded by the valid sentence appeal waivers contained in their plea agreements.2

The Johnson brothers argue that their pleas were not knowing and voluntary

because the government withheld information regarding their bribery of law

enforcement officer Robert Nicholson, which was later used to apply a two-level

enhancement in calculating their guidelines sentencing ranges.

       Where, as here, a defendant fails to preserve a challenge to the voluntariness

of a guilty plea, we review only for plain error. 3 See United States v. Moriarty,

429 F.3d 1012, 1018-19 (11th Cir. 2005). Plain error exists if the defendant can

show (1) error, (2) that is plain, (3) affects substantial rights, and (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). To establish

       2
           Namely, the Johnson brothers contend that the district court erred in applying the
two-level bribery enhancement and in denying credit for acceptance of responsibility.
         3
           The Johnson brothers could have challenged the voluntariness of their guilty pleas in the
district court by filing motions to withdraw their pleas.
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plain error regarding the voluntariness of a guilty plea, a defendant “must show a

reasonable probability that, but for the error, he would not have entered the plea.”

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

      “A plea of guilty cannot support a judgment of guilt unless it was voluntary

in a constitutional sense.” United States v. Brown, 117 F.3d 471, 476 (11th Cir.

1997) (citation and internal quotation marks omitted). In ensuring that a plea is

knowing and voluntary in the “constitutional sense,” the district court has an

obligation to establish that (1) the plea is free from coercion, (2) the defendant

understands the nature of the charges, and (3) the defendant understands the

consequences of his plea. See United States v. Hernandez-Fraire, 208 F.3d 945,

949 (11th Cir. 2000); see also Fed. R. Crim. P. 11(b)(2) (“Before accepting a plea

of guilty or nolo contendere, the court must address the defendant personally in

open court and determine that the plea is voluntary and did not result from force,

threats, or promises (other than promises in a plea agreement).”).

      The Johnson brothers have failed to show that their pleas were not knowing

and voluntary. The plea agreements and a transcript of the change of plea hearing

demonstrate that the Johnson brothers both averred that their pleas were entered

free from coercion and that they understood the charges against them and the

nature of the constitutional rights they were waiving. The district court also

discussed with both Carlos and Kelvin the consequences of their pleas. Moreover,


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the Johnson brothers were both explicitly informed by the district court during the

change of plea hearing and by the plea agreements themselves that their guideline

ranges could be different than the ranges currently estimated by the government,

their attorneys, or the Probation Office.

      Although the Johnson brothers contend that the government had an

obligation to inform them of all facts of which they were aware that could be used

to enhance their guidelines sentencing ranges, they offer no support for this

proposition. And, in fact, such an obligation would be overly burdensome on the

government and would undermine the goals of the plea bargaining process.

Cf. United States v. Ruiz, 536 U.S. 622, 631 (2002) (stating that “a constitutional

obligation to provide impeachment information during plea bargaining, prior to

entry of a guilty plea, could seriously interfere with the Government’s interest in

securing those guilty pleas that are factually justified, desired by defendants, and

help to secure the efficient administration of justice”). Regardless, even if the

government provided this information to the Johnson brothers, the government

would not have been able to identify or predict whether the Probation Office would

use the conduct in preparing the Johnson brothers’ PSRs. See United States v.

Behr, 93 F.3d 764, 766 (11th Cir. 1996).

      More important, the government’s withholding of this information does not

affect the knowing and voluntary nature of the Johnson brothers’ pleas. First, the


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bribery information does not relate to their convictions. Rather, it only affects the

potential length of their sentences. Second, while “the more information the

defendant has, the more aware he is of the likely consequences of a plea, waiver, or

decision, and the wiser that decision will likely be[,] . . . the Constitution does not

require the prosecutor to share all useful information with the defendant.” Ruiz,

536 U.S. at 629. The Constitution requires only that a guilty plea be knowing and

voluntary; not that it be fully informed. Thus, we conclude that the Johnson

brothers’ pleas were knowing and voluntary.

      Because the Johnson brothers’ pleas were knowing and voluntary, the

sentence appeal waivers contained within their plea agreements remain valid and

enforceable. Accordingly, the Johnson brothers may not challenge on appeal the

district court’s calculations regarding their guidelines ranges.

B. Ineffective Assistance of Counsel

      The Johnson brothers also argue that their counsel were ineffective because

they failed to produce evidence to impeach Stephanie Rogers during the sentencing

hearing. Specifically, the Johnson brothers contend that counsel should have

produced the arrest records of T’Michael Jones, from whom Rogers claims to have

received drugs to transport to the Johnson brothers while they were furloughed.

According to the Johnson brothers, Jones’s arrest records would show that Jones

was incarcerated at the time of the alleged conduct and would therefore cast doubt


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upon Rogers’s credibility. Although the sentence appeal waivers executed by the

Johnson brothers do not preclude claims of ineffective assistance of counsel, we

will generally not review a claim of ineffective assistance of counsel raised on

direct appeal where the district court neither addressed the claim nor developed a

sufficient factual record. See United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002). “If the record is sufficiently developed, however, this court will

consider an ineffective assistance of counsel claim on direct appeal.” Id. As to

this claim for ineffective assistance of counsel, the record is sufficiently developed.

      In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court

set forth a two-part test for analyzing ineffective assistance of counsel claims:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

Strickland requires proof of both deficient performance and consequent prejudice.

Id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim

. . . to address both components of the inquiry if the defendant makes an

insufficient showing on one.”); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir.

1998) (“When applying Strickland, we are free to dispose of ineffectiveness claims

on either of its two grounds.” (internal quotation marks omitted)). “[C]ounsel is


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strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466

U.S. at 690.

      As to the performance of Carlos’s counsel, he was not ineffective in failing

to impeach Rogers during the sentencing hearing. Even if the testimony of Rogers

was impugned, the testimony of Fredrick Harris directly implicated Carlos in

illegal activity while he was on furlough. In denying Carlos the reduction for

acceptance of responsibility, the district court specifically noted that it found the

testimony of Rogers and Harris credible despite their discrepancies, but it also

stated that Harris’s testimony alone implicated Carlos in the illegal activity. Thus,

because no reasonable probability exists that the outcome would have been

different for Carlos if his counsel impeached Rogers, his counsel was not

ineffective.

      Similarly, Kelvin’s counsel was not ineffective in failing to impeach Rogers.

Kelvin’s counsel did not cross examine Rogers. Rather, Kelvin’s counsel argued

that the testimony of Rogers and Harris implicated only Carlos. Impeaching

Rogers’s testimony was not essential to that strategy. Also, Kelvin himself

testified and stated that he did not participate in illegal activity while on furlough.

Through Kelvin’s testimony, which contradicted that of Rogers’s, Kelvin’s counsel

attempted to impeach Rogers’s testimony, although not in the manner Kelvin


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alleges would have been most successful. This Court will not second guess the

reasonable strategic decisions of counsel, and counsel’s performance in this regard

was not deficient.

      Kelvin also cannot establish that the failure to impeach Rogers resulted in

prejudice. First, Harris testified that he purchased drugs from both Johnson

brothers. Second, Kelvin admitted that he used a cell phone while incarcerated;

this behavior alone would have been sufficient to deny the reduction for

acceptance of responsibility. See 18 U.S.C. § 1791(d)(1)(F) (prohibiting the

possession of contraband, which includes a “phone or other device,” while in

prison). Therefore, even without the testimony of Rogers, the district court had

sufficient evidence on which to base its denial of the reduction for acceptance of

responsibility. Accordingly, Kelvin’s counsel was not ineffective.

                               III. CONCLUSION

      The convictions and sentences of Carlos Johnson and Kelvin Johnson are

affirmed.

AFFIRMED.




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