USA v. Michael Shaquille Lee

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10551
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SHAQUILLE LEE,
a.k.a. Smooth,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:21-cr-00048-TJC-PDB-11
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2 Opinion of the Court 23-10551
____________________
Before J ORDAN, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
The district court sentenced Michael Lee to 40 months of
imprisonment for conspiracy to distribute and to possess with in-
tent to distribute molly and flakka over an approximated six-month
span. This term of imprisonment was a 47-month downward vari-
ance from the low-end of the advisory guideline range. Nonethe-
less, Mr. Lee asserts on appeal that he was entitled to safety-valve
relief, that he was entitled to a minor role reduction for his part in
the conspiracy, that his sentence is both procedurally and substan-
tively unreasonable, and that it violated his constitutional right to
be free from cruel and unusual punishment under the Eighth
Amendment.
As explained below, we affirm. 1
I
Mr. Lee was charged with conspiring to possess and distrib-
ute MDMA and alpha-PVP, in violation of 21 U.S.C. § 841(b)(1)(C)
and § 846. These drugs are colloquially known as “molly” and
“flakka,” respectively. After Mr. Lee pled guilty without a written
plea agreement, a probation officer prepared a presentence investi-
gation report (“PSR”) outlining the following offense conduct.
1 We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision.
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A
Between July of 2018 and April of 2021, Kimberly and Neal
Walker led a drug-trafficking organization that distributed molly
and flakka from three residences. The Walkers did not personally
distribute the drugs but hired others, like Mr. Lee, to do so on the
organization’s behalf. The organization comprised of at least
twelve members with varying roles; those members worked in reg-
ular shifts, selling drugs from the three residences twenty-four
hours a day. The Walkers coordinated shifts at the residences, main-
tained the drug inventory, supplied the drugs, and paid their distrib-
utors.
According to the initial PSR, Mr. Lee worked approximately
four shifts per week at one of the drug residences from September
of 2020 through April of 2021, and approximately 4.9 kilograms of
flakka and 358 grams of molly were attributed to him. The proba-
tion officer calculated a base offense level of 30 under U.S.S.G. §
2D1.1(a)(5) & (c)(5) based on a converted drug weight of 2,041 kil-
ograms. The PSR recommended no enhancements and applied a
three-level total reduction under § 3E1.1(a)–(b) for acceptance of
responsibility and for timely notifying authorities of his intention
to plead guilty. As a result, the PSR calculated a total offense level
of 27.
The PSR also described Mr. Lee’s criminal history, which in-
volved various juvenile offenses and adult convictions for posses-
sion of 20 grams or less of cannabis and separately for possession
of a controlled substance and drug paraphernalia. For these
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4 Opinion of the Court 23-10551
offenses, the PSR calculated a criminal history subtotal of eight;
however, because the instant offense was committed while Mr. Lee
was on probation, an additional two points were added, for a total
criminal history score of ten and a criminal history category of V.
Mr. Lee’s criminal history category of V and an offense level of 27
yielded a Sentencing Guidelines range of 120 to 150 months of im-
prisonment.
B
Mr. Lee raised several objections to the PSR, including ob-
jections to the scoring of his criminal history points for his juvenile
offenses, the calculated drug weight attributed to him (which in-
cluded a time period during which he was incarcerated), the denial
of a minor role adjustment under § 3B1.2, the recommendation
that a downward departure was unwarranted, and finally, to the
“implicit conclusion” that the safety-valve criteria under § 3553(f )
was inapplicable to his case.
After addressing those objections, the probation officer re-
vised the PSR, adopting Mr. Lee’s objections to calculations of the
drug quantity and criminal history category but rejecting the ob-
jections regarding a minor role adjustment, downward departure,
and the application of the safety-valve. The revised PSR attributed
4.084 kilograms of flakka and 294.4 grams of molly to Mr. Lee,
lowering the converted drug weight to 1,685.44 kilograms. Be-
cause this weight still fell within the more-than-1,000-but-less-than-
3,000-kilograms range, this revision did not affect Mr. Lee’s base
offense level of 27. The probation officer did, however, reduce the
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23-10551 Opinion of the Court 5
criminal history points attributed to Mr. Lee’s three juvenile of-
fenses to zero points, reducing his total number of criminal history
points to four and his criminal history category to III.
The revised criminal history category of III and an offense
level of 27 lowered Mr. Lee’s Sentencing Guidelines range to 87 to
108 months of imprisonment.
C
At sentencing, the district court heard argument from Mr.
Lee’s counsel regarding the outstanding objections. Specifically, Mr.
Lee still maintained that he was entitled to (1) a minor role reduc-
tion, (2) safety-valve relief, and (3) a downward departure or vari-
ance based on his personal history and characteristics. The district
court ultimately denied Mr. Lee’s requests for a minor role reduc-
tion and/or safety-valve relief, but granted a downward variance
based on the 18 U.S.C. § 3553(a) factors and the mitigating evidence
presented by Mr. Lee’s counsel.
The district court sentenced Mr. Lee to 40 months’ impris-
onment and three years of supervised release. The court specifi-
cally rejected Mr. Lee’s arguments regarding the propriety of a mi-
nor role reduction and the application of the safety-valve relief,
noting that Mr. Lee’s conduct was commensurate with that of an
average participant in the drug scheme and that the statutory safety
valve did not apply. To the extent Mr. Lee asserted that he was
entitled to safety-valve relief under the relevant Sentencing Guide-
lines, the district court also noted that—at the time of Mr. Lee’s
sentence—the Sentencing Guidelines had not yet been amended to
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6 Opinion of the Court 23-10551
reflect the new criteria in § 3553(f ), and therefore, this circuit’s de-
cision in United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en
banc), was not at issue.
D
On appeal, Mr. Lee asserts that the district court erred by
declining to apply safety-valve relief and by declining to apply a mi-
nor role reduction. He also asserts that the district court’s sentence
is both procedurally and substantively unreasonable, and violative
of the Eight Amendment’s prohibition against cruel and unusual
punishment. We address each argument below.
II
We start with Mr. Lee’s argument regarding safety-valve re-
lief. There are two “safety valve” provisions potentially at issue: a
statutory safety valve provision under 18 U.S.C. § 3553(f ) and a
guidelines safety valve provision under U.S.S.G. §§ 5C1.2(a) and
2D1.1(b)(18). It is not clear under which provision Mr. Lee seeks
relief, but both on appeal and before the district court, Mr. Lee cites
only to the statutory safety valve under § 3553(f ) and our en banc
decision in Garcon, 54 F.4th at 1277 (analyzing § 3553(f )). Notably,
as the district court correctly observed at sentencing, the criteria
for relief under the guidelines safety valve provision, U.S.S.G. §
5C1.2(a), had not been amended at the time of sentencing to reflect
the more expansive criteria contained in § 3553(f ). See First Step Act
of 2018, Pub. L. No. 115-391, § 402(a)(1)(A)(ii), 132 Stat. 5194,
5221 (amending § 3553(f )(1)). See also United States v. Jerchower, 631
F.3d 1181, 1184 (11th Cir. 2011) (a court applies the version of the
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23-10551 Opinion of the Court 7
Sentencing Guidelines in effect on the date of the sentencing hear-
ing).2
Accordingly, we limit our discussion to the statutory safety
valve as amended by the First Step Act, 18 U.S.C. § 3553(f ).
When reviewing a district court’s safety-valve decision, we
review factual determinations for clear error and legal conclusions
de novo. United States v. Milkintas, 470 F. 3d 1339, 1343 (11th Cir.
2 As set forth above, at the time of Mr. Lee’s sentencing, there was an incon-
gruity between the safety-valve criteria under 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2(a). The Guidelines similarly list five criteria in § 5C1.2(a) and provide
for a two-level reduction in the offense level for a drug offender if he or she
satisfies that criteria. See U.S.S.G. §§ 2D1.1(b)(18), 5C1.2(a). Under the then-
applicable § 5C1.2, which had not yet been amended, a defendant was eligible
for safety-valve relief if, among other things, the defendant “d[id] not have
more than 1 criminal history point.” § 5C1.2(a). Mr. Lee was not eligible under
that version of the Guidelines because he had more than one criminal history
point. The United States Sentencing Commission has since enacted an amend-
ment to make U.S.S.G. § 5C1.2 consistent with § 3553(f), which went into ef-
fect on November 1, 2023. See U.S.S.G. Proposed Amend. No. 4 (eff. Nov. 1,
2023).
As in this case, confusion was inevitable given the Sentencing Guidelines’
cross-reference to § 3553(f)’s criteria—even where that criteria was not identi-
cal. Nonetheless, the only way Mr. Lee (had he properly raised the issue) could
qualify for the two-level Guidelines reduction is if § 5C1.2’s incorrect reference
to “the criteria in 18 U.S.C. § 3553(f)(1)–(5) set forth below” is read to incorpo-
rate the amended criteria in § 3553(f), including the broadened criteria for
criminal history in § 3553(f)(1)—and to supplant the incongruent criteria in §
5C1.2. But that reading is not plain from the language of § 5C1.2, which set
out the former criteria explicitly. Nor has Mr. Lee pointed us to any authority
to the contrary.
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8 Opinion of the Court 23-10551
2006). The defendant bears the burden of proving eligibility for
safety-valve relief. See id. at 1345.
As amended in 2018 by the First Step Act, § 3553(f ) provides
that a sentencing court shall disregard the statutory minimum
mandatory sentence if the defendant does “not have (A) more than
4 criminal history points, excluding any criminal history points re-
sulting from a 1-point offense . . .; (B) a prior 3‑point offense . . . ;
and (C) a prior 2-point violent offense” and no later than the time
of sentencing, have “truthfully provided to the Government all in-
formation and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a
common scheme or plan.” 18 U.S.C. § 3553(f ); First Step Act of
2018, Pub. L. No. 115-391, § 402(a)(1)(A)(ii), 132 Stat. 5194,
5221 (amending § 3553(f )(1)). In Garcon, we held that the “and” in
§ 3553(f )(1) is conjunctive and that a defendant remains eligible for
safety-valve relief unless he has more than four criminal history
points (excluding any criminal history points resulting from a one-
point offense), a prior three-point offense, and a prior two-point vi-
olent offense. Garcon, 54 F.4th at 1277–80.
Although § 3553(f ) permits a district court to disregard a
statutory mandatory minimum sentence and instead impose a sen-
tence within the advisory guidelines range, there is no mandatory
minimum sentence at issue here. Thus, it is unclear why §
3553(f )—or our holding in Garcon, which is premised on that stat-
ute—is relevant here. Mr. Lee having failed to indicate its relevance
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23-10551 Opinion of the Court 9
to the contrary, we agree with the district court that statutory
safety-valve relief is not applicable.
III
Mr. Lee next asserts that he was entitled to a minor role re-
duction pursuant to U.S.S.G. § 3B1.2. Under this provision, a de-
fendant who is a “minor participant” in a criminal scheme can re-
ceive a two-level reduction in his or her offense level. A “minor par-
ticipant” is someone “who is less culpable than most other partici-
pants in the criminal activity, but whose role could not be described
as minimal.” Id., cmt. (n.5).
Whether a defendant is a minor participant is a finding of
fact that we review for clear error; thus, we will reverse only if we
have “a definite and firm conviction that a mistake has been com-
mitted.” United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir.
2016). The district court has “considerable discretion in making
this fact-intensive determination,” and the defendant bears the bur-
den of establishing his qualification for a reduction by a preponder-
ance of the evidence. United States v. Boyd, 291 F.3d 1274, 1277–78
(11th Cir. 2002).
In determining whether a defendant qualifies for the reduc-
tion, the district court should consider the following non-exhaus-
tive factors: (1) the defendant’s degree of understanding of the
structure and scope of the criminal activity; (2) the defendant’s de-
gree of participation in the organization and planning of the crim-
inal activity; (3) the defendant’s degree of decision-making author-
ity or influence over the decision-making authority; (4) the
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10 Opinion of the Court 23-10551
defendant’s nature and extent of participation in the criminal activ-
ity, including his actions and his responsibility and discretion in per-
forming those actions; and (5) how much the defendant “stood to
benefit” from the activity. See United States v. Presendieu, 880 F.3d
1228, 1249–50 (11th Cir. 2018); U.S.S.G. § 3B1.2, cmt. (n.3(C)). And
a district court’s analysis should be informed by (1) the defendant’s
role in the relevant conduct for which he has been held accountable
for at sentencing, and (2) his role as compared to that of the other
participants in the relevant conduct. See United States v. De Varon,
175 F.3d 930, 939 (11th Cir. 1999) (en banc).
As to the first prong, “only if the defendant can establish that
he played a relatively minor role in the conduct for which he has
already been held accountable—not a minor role in any larger
criminal conspiracy—should the district court grant a downward
adjustment for minor role in the offense.” Id. at 944. And as to the
second prong, “the district court should look at other participants
only to the extent that they (1) are identifiable or discernable from
the evidence, and (2) were involved in the relevant conduct at-
tributed to the defendant.” United States v. Moran, 778 F.3d 942, 980
(11th Cir. 2015) (citing De Varon, 175 F.3d at 944). “The conduct of
the participants in any larger criminal conspiracy is irrelevant.” De
Varon, 175 F.3d at 944. Indeed, “[e]ven if a defendant played a lesser
role than the other participants, that fact does not entitle [him] to
a role reduction since it is possible that none [of the participants]
are minor or minimal participants.” United States v. Martin, 803 F.3d
581, 591 (11th Cir. 2015) (internal quotation marks omitted). Thus,
“in order to satisfy the second prong, the defendant must show that
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23-10551 Opinion of the Court 11
he was less culpable than most other participants in his relevant
conduct.” Moran, 778 F.3d at 980.
Mr. Lee asserts that he was nothing more than “a run of the
mill street level drug salesman.” Appellant’s Br. at 24 (citing Cruick-
shank, 837 F.3d at 1192). To support that assertion, Mr. Lee posits
that he was “not in charge of anyone in the conspiracy, had no man-
agerial [or] leadership role, [and] merely assisted the conspiracy in
a limited manner at the direction of others.” Id. He further main-
tains that—unlike some of his codefendants—he was not caught
with a firearm and did not live in or maintain the residences where
the drugs were found. Id.
The district court did not clearly err in finding that Mr. Lee
did not warrant a minor role reduction. As the district court made
clear at sentencing, Mr. Lee was held accountable only for his con-
duct by calculating the drugs actually attributed to his sales during
his shifts at the drug house. The district court also properly com-
pared Mr. Lee’s conduct to that of his co-conspirators, including
other similarly situated members of the conspiracy, and agreed
with the probation officer’s assessment that Mr. Lee’s role—specif-
ically in terms of the weight of drugs attributed to him and the
length of time of his involvement—was commensurate with that
of an average participant in the scheme. See De Varon, 175 F.3d at
940–41. Mr. Lee’s lack of decision-making authority within the
conspiracy did not require the district court to grant him a minor
role reduction, and a criminal conspiracy may exist without any
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12 Opinion of the Court 23-10551
minor or minimal participants, as the district court found here. See
Cruickshank, 837 F.3d at 1195; Martin, 803 F.3d at 591.
IV
Mr. Lee also asserts that his sentence was both procedurally
and substantively unreasonable. We do not agree.
We use a two-step process to review the reasonableness of a
sentence imposed by a district court. See United States v. Cubero, 754
F.3d 888, 892 (11th Cir. 2014). First, we determine whether the
sentence is procedurally sound. See id. Assuming it is, we then
examine whether the sentence is substantively reasonable given
the totality of the circumstances and the sentencing factors set out
in 18 U.S.C. § 3553(a). See id. At both steps of the process, the party
challenging the sentence bears the burden of showing it is unrea-
sonable under the deferential abuse of discretion standard. See
United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012) (citing
Gall v. United States, 552 U.S. 38, 41 (2007)).
A
A sentence is procedurally unreasonable if the district court
commits a “significant procedural error” such as failing to calculate
or incorrectly calculating the guidelines range, treating the guide-
lines as mandatory, failing to consider the § 3553(a) factors, failing
to adequately explain the chosen sentence, or selecting a sentence
based on clearly erroneous facts. See United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008); United States v. Trailer, 827 F.3d 933, 936
(11th Cir. 2016).
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Mr. Lee contends that the district court failed to follow the
requirements of United States v. Booker, 543 U.S. 220, 262 (2005). Mr.
Lee appears to rely on his arguments regarding the application of
the safety valve and minor role reductions in support of his proce-
dural unreasonableness assertion. To the extent he does, we reject
those arguments once more.
To the extent Mr. Lee argues that the district court violated
any of Booker’s other mandates, such as by failing to adequately ex-
plain the chosen sentence or treating the guidelines range as man-
datory, we likewise reject those contentions. There is no indication
in the record that the district court treated the guidelines as man-
datory. Indeed, the record reflects just the opposite: the district
court expressly agreed with Mr. Lee’s counsel that the guideline
range may have been too high and granted a significant downward
variance based on Mr. Lee’s individual circumstances.
In short, the district court’s sentence was procedurally
sound.
B
Mr. Lee also asserts that his sentence was substantively un-
reasonable because the district court gave undue weight to his of-
fense conduct and to his past criminal history.3 As the party
3 Mr. Lee consistently asserts that the district court inappropriately designated
him as a recidivist offender or career offender. See Appellant’s Br. at 31–32.
That is not reflected in the sentencing hearing transcript or elsewhere in the
record. Rather, the district court properly reviewed Mr. Lee’s criminal history
as determined under the Sentencing Guidelines.
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challenging his sentence, Mr. Lee has “the burden of showing that
the sentence is unreasonable in light of the entire record, the §
3553(a) factors, and the substantial deference afforded [to] sentenc-
ing courts.” United States v. Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015). We have “underscored” that we must give “due deference”
to the district court to consider and weigh the proper sentencing
factors. See United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir.
2018) (quotation marks omitted).
A district court must impose a sentence that is “sufficient,
but not greater than necessary” to comply with the purposes listed
in § 3553(a)(2). When fashioning a reasonable sentence, a district
court must consider the factors set for in § 3553(a), which include,
in relevant part, the “nature and circumstances of the offense and
the history and characteristics of the defendant.” United States v.
Irey, 612 F.3d 1160, 1198 (11th Cir. 2010) (en banc). A district court
abuses its discretion when it “(1) fails to afford consideration to rel-
evant 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.” Id. at 1189
(quotation marks omitted).
One indicator of a reasonable sentence is that it is well below
the statutory maximum for the crime. See United States v. Dougherty,
754 F.3d 1353, 1364 (11th Cir. 2014). A district court has wide dis-
cretion to decide whether the § 3553(a) factors justify a variance
and the degree of the variance. Irey, 612 F.3d at 1196. Though ap-
pellate courts may presume a sentence within the guideline range
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23-10551 Opinion of the Court 15
is reasonable, a sentencing judge must still properly analyze the §
3553(a) factors and set forth enough to demonstrate that he or she
has considered the parties’ arguments and has a reasoned basis for
exercising his or her decision-making authority. See Rita v. United
States, 551 U.S. 338, 347–50, 356–57 (2007).
Mr. Lee’s 40-month sentence is substantively reasonable.
The district court appropriately weighed and considered the
§ 3553(a) factors, including his personal history and characteristics,
his difficult upbringing, and his relative culpability as compared to
other co-conspirators. The district court appropriately weighed
those factors against the serious nature of the crime and Mr. Lee’s
“low-level but persistent misconduct” as reflected in his criminal
history. On balance, the district court varied significantly down-
ward and imposed a sentence well below the guideline range. We
find no abuse of discretion in doing so.
V
Finally, Mr. Lee—for the first time on appeal—contends that
his 40-month term of imprisonment, a sentence well below the
Guidelines range, constitutes a violation of Mr. Lee’s Eighth
Amendment right against cruel and unusual punishment. Specifi-
cally, Mr. Lee contends that his sentence was disproportionate to
his crime.
We generally review de novo the legality of a sentence under
the Eighth Amendment; but, when a defendant fails to object in the
district court that his sentence violates the Eighth Amendment, we
review the claim for plain error. See United States v. Raad, 406 F.3d
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16 Opinion of the Court 23-10551
1322, 1323 (11th Cir. 2005). Plain error requires a defendant to
show: (1) an error; (2) that is plain; (3) that affects substantial rights;
and (4) that seriously affects the fairness, integrity, or public repu-
tation of the judicial proceedings. Id. Generally, “[a]n error is not
plain unless it is contrary to explicit statutory provisions or to on-
point precedent in this Court or the Supreme Court.” United States
v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (internal citation and
quotation marks omitted).
The Eighth Amendment contains a narrow proportionality
principle that applies to noncapital sentences. See United States v.
Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006). “Outside the context
of capital punishment, there are few successful challenges to the
proportionality of sentences.” Id. This is so because we accord
substantial deference to Congress’s broad authority to determine
the types and limits of punishments for crimes. Id. at 1242–43.
Consequently, a court “must make a threshold determination that
the sentence imposed is grossly disproportionate to the offense
committed.” Id. at 1243 (quotation marks omitted). “In general, a
sentence within the limits imposed by statute is neither excessive
nor cruel and unusual under the Eighth Amendment.” Id. (quota-
tion marks omitted).
Here, Mr. Lee has failed to establish any error, much less
plain error. Nor has he established how his sentence—more than
47 months below the low end of his guideline range—is grossly
disproportionate to his crime under the Eighth Amendment. See
United States v. Flanders, 752 F.3d 1317, 1343 (11th Cir. 2014). Mr. Lee
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23-10551 Opinion of the Court 17
has not pointed to a single Eleventh Circuit or Supreme Court case
to the contrary.
VI
We affirm Mr. Lee’s sentence.
AFFIRMED.
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