           Case: 19-10838   Date Filed: 02/04/2020   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10838
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:16-cr-00315-TWT-AJB-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

ELGIN BYRD,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (February 4, 2020)

Before MARTIN, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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      Elgin Byrd appeals his convictions for aiding and abetting in assaulting a

confidential informant (“CI”), in violation of 18 U.S.C. §§ 111(a)(1) and 2, and

aiding and abetting in robbery of federal property, in violation of 18 U.S.C.

§§ 2114(a) and 2, after he pled guilty to those and other offenses. We affirm.

                                I. BACKGROUND

      A grand jury indicted Byrd and his codefendant, Michael Simpson, in an

eight-count indictment. Byrd entered into a plea agreement with the government in

which he agreed to plead guilty to four counts in the indictment: (1) heroin

distribution, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2

(Count Two); (2) aiding and abetting in assaulting a CI, in violation of 18 U.S.C.

§§ 111(a)(1) and 2 (Count Four); (3) aiding and abetting in the robbery of federal

property, in violation of 18 U.S.C. §§ 2114(a) and 2 (Count Five); and (4) aiding

and abetting in the possession of a firearm during a crime of violence, in violation

of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Six).

      At Byrd’s change-of-plea hearing, the government laid out the factual basis

for the plea. On August 3, 2016, a CI attempted to purchase two guns and heroin

from Byrd; however, when Byrd stated the firearms were at a nearby location, the

CI refused to go with Byrd to pick up the guns and left after buying heroin from

him. After several discussions by phone, on August 8, Byrd agreed to sell the CI

three guns the following day. Byrd and Simpson made several phone calls between



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each other on August 8 and 9. On August 9, after calling Byrd to confirm the

transaction, the CI travelled to Byrd’s apartment. Shortly after the CI arrived, Byrd

called Simpson, who had entered and exited the stairwell leading to Byrd’s

apartment within minutes of the CI’s arrival. Simpson returned to the apartment

building, retrieved a pistol from a different apartment, and went back outside while

he was once again on the phone with Byrd. When the CI left Byrd’s apartment,

Byrd called Simpson. As the CI was walking to leave the property, Simpson put a

gun against the CI’s back, pushed him to the ground, and took $600 (which had

been provided by the government), his car keys, and a cell phone and Bluetooth

that had government recording equipment installed on them. After Byrd was

arrested, he told officers that he and Simpson had been “fake selling guns” and that

they had decided to rob the CI because they did not have guns to sell. Byrd also

admitted that some of the money from the robbery was going to him.

      After the government finished the factual proffer, Byrd told the district court

that he did not disagree with any of the stated facts and admitted that he was guilty.

The court accepted the plea and adjudicated him guilty.

      The probation office prepared a presentence investigation report (“PSI”).

Pursuant to U.S.S.G. § 4B1.1, the PSI applied a base offense level of 34 because

Byrd was a career offender; it then applied a three-level reduction for acceptance

of responsibility, pursuant to U.S.S.G. § 3E1.1(a). As a career offender, Byrd’s



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criminal history category was adjusted to VI, pursuant to U.S.S.G. § 4B1.1. Based

on an offense level of 31 and a criminal history category of VI, the guideline range

was 188 to 235 months of imprisonment plus a consecutive 84-month sentence.1

At the sentencing hearing, the district court ultimately calculated the same

guideline range. The government recommended a total sentence of 189 months of

imprisonment. It stated that, during plea negotiations, the parties did not think that

Byrd was going to be a career offender, so the government had arrived at its

recommendation by recalculating the range based on an offense level that did not

use the career-offender enhancement. The government stated:

              You know, Mr. Simpson is the one who showed up with a gun on
       very short notice and actually committed the aggravated assault and
       robbery of a confidential informant. And so a sentence for Mr. Byrd
       that is seven, eight years above where Mr. Simpson would be seems
       like a bit of a disparity. I recognize part of that’s because the guidelines
       count for him much greater because of the career offender guidelines .
       ...

The district court sentenced Byrd to a total of 189 months of imprisonment, 5 years

of supervised release, and $600 in restitution.

       On appeal, Byrd challenges his convictions for aiding and abetting in an

assault of a CI and a robbery of federal property, 2 arguing there was an insufficient

factual basis for the guilty plea because, during sentencing, the prosecutor argued


1
  Byrd filed objections to the PSI, which are not relevant to this appeal.
2
  Byrd does not make any arguments regarding the offenses, so he has abandoned any challenge
to them. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).


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that Byrd should be given leniency because his codefendant “actually committed”

the robbery and assault.

                                  II. DISCUSSION

      Where a defendant fails to object to the sufficiency of the factual proffer

supporting the guilty plea, we review for plain error. United States v.

Puentes-Hurtado, 794 F.3d 1278, 1285-86 (11th Cir. 2015). To establish plain

error, a defendant must show that (1) there is error, (2) the error is plain, and (3) the

error affects substantial rights. Id. at 1286. Where those three conditions are met,

we may exercise our discretion to correct the error if it “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in

original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1170, 1776

(1993)). Challenges to the sufficiency of the factual proffer are not waived by the

entry of a guilty plea. Id. at 1286-87.

      Before accepting a guilty plea, the district court “must determine that there is

a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The standard for

evaluating challenges to the factual basis for a guilty plea is whether the trial court

was presented with evidence from which it could reasonably find that the

defendant was guilty.” United States v. Lopez, 907 F.2d 1096, 1100 (11th Cir.

1990). Statements made under oath during a plea colloquy receive a strong




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presumption of truthfulness. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

1994).

      The federal aiding-and-abetting statute provides that a person who aids or

abets the commission of an offense is liable as a principal. 18 U.S.C. § 2. A

person is liable under this statute if “he (1) takes an affirmative act in furtherance

of that offense, (2) with the intent of facilitating the offense’s commission.”

Rosemond v. United States, 572 U.S. 65, 71, 134 S. Ct. 1240, 1245 (2014). A

defendant “can be convicted as an aider and abettor without proof that he

participated in each and every element of the offense,” and this theory of liability

“comprehends all assistance rendered by words, acts, encouragement, support, or

presence.” Id. at 73, 134 S. Ct. at 1246-47 (first quoting United States v.

Sigalow, 812 F.2d 783, 785 (2d Cir. 1987); then quoting Reves v. Ernst &

Young, 507 U.S. 170, 178, 113 S. Ct. 1163, 1170 (1993)).

      The factual proffer from the government showed that Byrd (1) planned with

his codefendant to rob a CI; (2) was to receive money from the robbery;

(3) arranged for the CI to meet with him at his apartment; and (4) called his

codefendant, Simpson, both as the CI arrived and left the apartment. On these

facts, the district court could have reasonably found that Byrd affirmatively acted

with the intent to help Simpson rob the CI. Id. at 71, 134 S. Ct. at 1245. Although

the prosecutor argued that Byrd should receive leniency because Simpson “actually



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committed” the robbery and assault, that statement is not inconsistent with Byrd’s

liability under the aiding-and-abetting statute. See id. at 73, 134 S. Ct. at 1246.

Accordingly, the district court did not plainly err in finding that a sufficient factual

basis supported the guilty plea.

      AFFIRMED.




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