           Case: 13-15800   Date Filed: 06/27/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15800
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-20307-KMW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

MICHAEL A. MEMBRIDES,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 27, 2014)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Michael A. Membrides appeals his conviction for one count of being a felon

in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1),

and he appeals his 84-month sentence. Membrides argues that the district court

erred by (1) granting a two-level downward adjustment under U.S.S.G. § 3E1.1(a)

while allowing the government to withhold a motion for an additional one-point

reduction under U.S.S.G. § 3E1.1(b); (2) assigning him an enhancement for

obstruction of justice under U.S.S.G. § 3C1.1; and (3) denying his motion to

suppress. Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                          I.

      We review the denial of an acceptance-of-responsibility reduction for clear

error. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). The district

court’s finding is entitled to great deference on review, and should not be disturbed

unless it lacks foundation. Id. A factual finding is clearly erroneous when, after

reviewing the entire evidence, the reviewing court is left with the definite and firm

conviction that a mistake has been committed. United States v. Barrington, 648

F.3d 1178, 1195 (11th Cir. 2011).

      A defendant is entitled to a one-level reduction pursuant to § 3E1.1(b), if,

among other conditions, the government files a motion “stating that the defendant

has assisted authorities in the investigation or prosecution of his own misconduct


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by timely notifying authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” U.S.S.G.

§ 3E1.1(b). Section 3E1.1(b) was recently amended to require a government

motion. Amendment 775 to § 3E1.1(b) provides that “[t]he government should not

withhold [a § 3E1.1(b) motion] based on interests not identified in § 3E1.1, such as

whether the defendant agrees to waive his or her right to appeal.” U.S.S.G. §

3E1.1(b) cmt. 6.

      Here, the district court did not clearly err when it did not award Membrides a

third reduction point under § 3E1.1(b). Membrides was sentenced on December

10, 2013, and therefore the 2013 Guidelines, with Amendment 775, apply. United

States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). Although the

Amendment arguably may allow for judicial review of the government’s refusal to

make a § 3E1.1(b) motion, we have not yet decided under what circumstances, if

any, the district court may review the government’s decision not to file such a

motion. Regardless, however, Membrides’s argument fails. While Membrides

indicated his intention to plead guilty early on, he stated that he would do so only if

he lost his suppression motion. Thus, late in the game, the government had to fully

prepare for a two-day suppression hearing. That preparation included preparing

law enforcement witnesses to testify about facts similar to those they would testify


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about at a trial and defeated the purpose of § 3E1.1(b)’s incentive to plead early.

By conditioning his guilty plea on the outcome of the suppression hearing,

Membrides forced the government and the district court to allocate resources they

would not have been required to allocate if Membrides had pleaded guilty outright.

This is one of the considerations identified in § 3E1.1, thus even if the Amendment

created judicial review, the district court did not clearly err. In similar

circumstances before § 3E1.1 was amended, we upheld withholding the one-point

reduction when a guilty plea was made on the eve of trial following denial of a

motion to suppress, after the government began trial preparation. See United

States v. Gilbert, 138 F.3d 1371, 1373–74 (11th Cir. 1998) (per curiam), abrogated

on other grounds by United States v. Archer, 531 F.3d 1347 (11th Cir. 2008). That

holding remains appropriate despite the Amendment and Membrides therefore

cannot benefit from the fact that he pleaded as soon as was practicable give his trial

strategy.

                                           II.

      In reviewing the district court’s application of an obstruction-of-justice

enhancement, we review the district court’s factual findings for clear error and its

applications of the Sentencing Guidelines de novo. United States v. Doe, 661 F.3d

550, 565 (11th Cir. 2011). Pursuant to U.S.S.G. § 3C1.1, a defendant’s offense

level will be increased by two levels if


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      (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense. . . .

U.S.S.G. § 3C1.1. An example of conduct deemed “obstructive” under § 3C1.1 is

directly or indirectly attempting to threaten or intimidate a codefendant or witness.

Id. § 3C1.1 cmt. 4(A). The defendant need not be successful in his attempt to

impede or obstruct the administration of justice in order for the enhancement to

apply. See United States v. Taylor, 88 F.3d 938, 943–44 (11th Cir. 1996). A

district court applying the obstruction-of-justice enhancement must identify what

the defendant did, why that conduct warranted the enhancement, and how that

conduct hindered either the investigation or prosecution of the offense. Id. at 944.

However, even where a district court fails to make such individualized findings, a

remand is unnecessary if the record clearly reflects and supports the basis for the

enhancement. Id.

      The district court did not clearly err in applying a § 3C1.1 enhancement to

Membrides. During pretrial detention Membrides attempted to orchestrate a social

media barrage to threaten or intimidate a witness in this case. See § 3C1.1 cmt.

4(A). He made numerous calls to his mother and other associates instructing them

to “expose” the witness as a snitch. During one phone call, for example,

Membrides told an associate that the witness “will be testifying in court, so I can’t
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even take my case to trial.” And later, that the witness “was talking about things

he shouldn’t be talking about.” In another jailhouse phone call, Membrides

instructed his mother to post all the discovery information online: “Put that s— on

my Facebook,” and “Put that s— as a picture.” Membrides also called an

unidentified male and told him, “If they don’t drop my charge for the illegal search

and seizure, guess what, I’m pleading guilty.” The male informed Membrides, “I

put the word out about this f— n— dawg that’s running his lip,” and “Everybody’s

going to find out about this.” Membrides replied, “Oh, I’m glad. Expose him.”

The male said, “I wanna get some of those papers you were talking about.”

Membrides told him, “I need to get it from the counselor,” and then, “I’ll get it for

you. Instagram that s—.” The male replied, “Facebook. Everything.”

      The court further stated that it could not ignore “that [Membrides] is

documented as a gang member and that social media would be a way of getting the

message out.” Based on the court’s statements and the fact that the record reflects

that Membrides referred to the witness as a “snitch,” encouraged his friends and

mother to post as much on social media to “expose” the witness, and wanted his

friends to post on social media copies of documents he obtained during discovery

that show the witness was cooperating with the government, the enhancement for

obstruction of justice was not applied in error. See Taylor, 88 F.3d at 944.

                                         III.


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       We review de novo whether a defendant’s guilty plea caused him to waive

his right to appeal the denial of a motion to suppress. See United States v. Patti,

337 F.3d 1317, 1320 n.4 (11th Cir. 2003). Generally, a defendant’s unconditional

plea of guilty, made knowingly, voluntarily, and with the benefit of competent

counsel, waives all non-jurisdictional defects in that defendant’s court proceedings.

United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997). A district court’s

refusal to suppress evidence is non-jurisdictional and is waived by a guilty plea.

United States v. McCoy, 477 F.2d 550, 551 (5th Cir. 1973) (per curiam). 1 A

defendant can preserve appellate review of a non-jurisdictional defect while at the

same time pleading guilty by entering a “conditional plea” pursuant to Federal

Rule of Criminal Procedure 11(a)(2), “reserving in writing the right to have an

appellate court review an adverse determination of a specified pretrial motion.”

Fed. R. Crim. P. 11(a)(2); see also Pierre, 120 F.3d at 1155.

       Membrides waived appellate review of the denial of his motion to suppress

because his unconditional plea of guilty was made knowingly, voluntarily, and

with the benefit of competent counsel. Additionally, the district court’s refusal to

suppress evidence is non-jurisdictional. See McCoy, 477 F.2d at 551. Membrides

argues that the Supreme Court’s decision in Menna v. New York, 423 U.S. 61, 96

       1
        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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S. Ct. 241 (1975) (per curiam), a double jeopardy challenge, allows an exception to

the general rule that a non-conditional guilty plea waives all non-jurisdictional

grounds for appeal. We have not applied Menna’s exception to a defendant’s

appeal of a denial of a motion to suppress after pleading guilty, nor have we

suggested that Menna should be applied as broadly as Membrides argues. Rather,

this court has explained that Menna provides for such an exception “when a charge

against a defendant, judged on the basis of the record that existed at the time the

guilty plea was entered, is one the State may not constitutionally prosecute.”

United States v. Kaiser, 893 F.2d 1300, 1302 (11th Cir. 1990). Membrides’s

motion to suppress does not fall within this category.

      AFFIRMED.




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