USA v. Leslie Meyers

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13891
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESLIE MEYERS,
a.k.a. Les Meyers,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:18-cr-00058-LAG-TQL-1
____________________
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2 Opinion of the Court 21-13891
Before NEWSOM , BRANCH , and L UCK , Circuit Judges.
PER CURIAM:
Leslie Meyers pleaded guilty to various counts involving
dogfighting and being a felon in possession of a firearm. On appeal,
he argues that the district court erred when it found at sentencing
that he hanged his dog to death without requiring the government
to establish that fact by a preponderance of the evidence. After
careful review, and with the benefit of oral argument, we agree
with Meyers that the district court erred in making its factual find-
ing concerning the alleged hanging. We, therefore, VACATE and
REMAND for resentencing.1
I
Meyers raised pit bulls. At least once, he entered one of his
pit bulls in a fight in Sumter County, Georgia. A few hours into
the event, law enforcement officials from various agencies exe-
cuted a search warrant of the premises. The officers found—
among other things—a dead pit bull terrier. Video evidence
showed that it had participated in the fight, and it was later identi-
fied as Meyers’s dog.
More than a year later, law enforcement executed a search
warrant at a property where Meyers lived with his girlfriend.
Agents found 27 pit-bull-type dogs, one Great Dane, and one
1 Meyers also challenges the district court’s sentence as substantively unrea-
sonable. Because we agree with Meyers on his first challenge to the district
court’s sentence, we needn’t address his substantive-reasonableness challenge.
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21-13891 Opinion of the Court 3
German Shepherd. The pit bulls were chained and in physical con-
ditions consistent with being used for dog fighting. Agents also dis-
covered various equipment and paraphernalia related to dog-
fighting. Agents seized the animals and surrendered the Great
Dane and German Shepherd to local animal control officers.
A grand jury charged Meyers in a multi-defendant indict-
ment on 32 counts. Meyers pleaded guilty to five counts, and the
government dismissed the other 27.2 Meyers waived his right to
appeal except in the event that the district court imposed a sentence
higher than the guidelines range, and the government agreed to
recommend a sentence of no longer than 72 months.
A United States probation officer filed a presentence investi-
gation report that discussed the five offenses. The PSI included an
allegation from Meyers’s co-defendant Timothy White that Mey-
ers hanged his dog to death because the dog refused to commit a
“courtesy scratch”—an opportunity for the victorious dog in a fight
to attack a wounded loser in order to further maim or kill it. Based
on its consideration of the facts underlying the charges, Meyers’s
2 The five counts to which Meyers pleaded guilty were: (1) conspiring to vio-
late the Animal Welfare Act, in violation of 18 U.S.C. § 371 in connection with
7 U.S.C. § 2156(a), (b) and 18 U.S.C. § 49; (2) and (3) transporting a dog for use
in an animal fighting venture in violation of 7 U.S.C. § 2156(b) and 18 U.S.C. §
49; (4) sponsoring and exhibiting a dog in an animal fighting venture in viola-
tion of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 49; and (5) knowingly possessing
a firearm after knowing he had been convicted of a felony in violation of 18
U.S.C. §§ 924(a)(2) and 922(g)(1).
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4 Opinion of the Court 21-13891
criminal history, and his personal characteristics, the PSI concluded
that Meyers’s sentencing range was 77 to 96 months.
Meyers filed a written objection to the PSI pursuant to Fed-
eral Rule of Criminal Procedure 32(f) and Local Criminal Rule
32.1(b). Meyers’s only objections were to two paragraphs in the
PSI that discussed his prior criminal history. Meyers didn’t object
to the allegation that he hanged his dog to death.
At sentencing, Meyers told the court that he had the oppor-
tunity to review the PSI, that he had no questions about it, and that
he had reviewed his objections to the PSI with his counsel and had
no further objections. The district court overruled Meyers’s writ-
ten objections and asked the parties if there were any further ob-
jections. Both parties replied that there weren’t, and the district
court adopted the PSI as written. The district court heard from
both parties’ counsel on the recommended sentence and took tes-
timony from Meyers himself and his two nephews. At no point
during this time did Meyers contest the allegation that he had
hanged his dog to death.
Finally, the district court discussed its sentencing considera-
tions. Regarding the dog’s hanging, the district court said that the
allegation “bl[ew its] mind” and that it had been “fighting for . . .
months . . . to understand” Meyers’s conduct but said it had to “take
that into account and incorporate that into the nature and circum-
stance of the offense.” Doc. 561 at 23. At this point—for the first
time—Meyers contested the allegation that he hanged his dog to
death, stating that he “did not . . . hang that animal.” Id. Meyers
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21-13891 Opinion of the Court 5
went on to say, “as God is above” and offering to “put [his] hand
on a Bible” or “even take a lie detector test,” that the allegation was
a “complete lie” and that he left the dog with two hosts after the
fight. Id. at 23–25. Even so, after listening to Meyers, the district
court said that “the evidence in the case is that [the hanging by
Meyers] did occur.” Id. at 25. The court also said that “[t]he evi-
dence that has been presented up to this time in this case indicates
to me and I am making a finding of fact that I do believe that you
did, in fact, kill that dog as has been described in the record . . . .”
Id. at 27.
Taking that fact and Meyers’s criminal history into account,
the district court determined that an upward variance was appro-
priate and sentenced Meyers to 60 months for counts one through
four to run concurrently and 63 months for count five to be served
consecutively for a total of 123 months. Meyers objected to the
sentence, arguing that it was excessive, pointing specifically to the
government’s recommendation of a 72-month sentence.
This appeal followed.3
II
A sentencing court can make findings of fact for purposes of
sentencing “based on [1] evidence heard during trial, [2] facts
3 We review legal questions concerning the Federal Rules of Criminal Proce-
dure de novo. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006); see
also United States v. Beach, 113 F.3d 188, 189 (11th Cir. 1997) (“Because [the]
appeal presents legal questions regarding the application of . . . rules of proce-
dure, review is de novo.”).
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6 Opinion of the Court 21-13891
admitted by a defendant’s plea of guilty, [3] undisputed statements
in the presentence report, or [4] evidence presented at the sentenc-
ing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989). If a defendant disputes a fact in the PSI, a district court
“must . . . rule on the dispute or determine that a ruling is unnec-
essary either because the matter will not affect sentencing, or be-
cause the court will not consider the matter in sentencing . . . .”
Fed. R. Crim. P. 32(i)(3)(B). For a defendant to properly object to
his PSI, his challenge must be made with “specificity and clarity,”
so that the government and the district court know the mistake of
which he complains. United States v. Ramirez-Flores, 743 F.3d 816,
824 (11th Cir. 2014) (quoting United States v. Aleman, 832 F.2d 142,
145 (11th Cir. 1987)). A defendant also needs to object in a timely
manner. Fed. R. Crim. P. 32(f )(1). A district court has discretion to
waive the timeliness requirement for good cause. United States v.
Aguilar-Ibarra, 740 F.3d 587, 591 (11th Cir. 2014); see also Fed. R.
Crim. P. 32(i)(1)(D). When a defendant “dispute[s]” a portion of
the PSI, Fed. R. Crim. P. 32(i)(3)(B), “the Government has the bur-
den of establishing the disputed fact by a preponderance of the ev-
idence.” United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir.
2013) (quotation marks and citation omitted). The government
meets its burden by putting forth “reliable and specific evidence.”
United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997) (quota-
tion marks and citation omitted).
Meyers contends that the district court erred under Rule
32(i)(3)(B) when it found that he hanged his dog to death without
requiring the government to establish that fact based on a
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21-13891 Opinion of the Court 7
preponderance of the evidence. He concedes that his objection to
the alleged fact was untimely under Rule 32(f )(1) but argues that
the district court excused his untimeliness by resolving the objec-
tion on the merits. The government asserts that the district court
didn’t recognize that Meyers was asking to make a new objection
or that he was asking for an exception to his untimeliness based on
good cause. Meyers replies that his words and the context in which
he interjected “made clear that he did not want the [sentencing]
court to consider the disputed fact that he killed the dog in sentenc-
ing him, on the ground that the allegation was not truthful.”
We hold that Meyers satisfied the “specificity and clarity” re-
quirements when he interjected at the sentencing hearing. In per-
tinent part, Meyers told the court:
Your honor, I was just going to address [the alleged
fact about hanging the dog to death.] I don’t -- you
might not feel that that’s the truth or whatever. And
as God is above, I did not take off a belt off my waist
and hang that animal. . . . [T]hat’s a complete lie. I
didn’t do that. . . . I did not pull any -- I didn’t even
wear a belt that night to that situation for me to pull
a belt off my waist and hang the dog until it was dead.
. . . I’ll put my hand on a Bible or whatever needs to
be done or even take a lie detector test to determine I
didn’t do that -- that it didn’t happen. I was supposed
to address that before we got to this part, but it slipped
my mind about it.
With regard to specificity, Meyers’s interjection was targeted
solely at the allegation that he hanged his dog to death; it was an
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8 Opinion of the Court 21-13891
objection not to the PSI in general, but rather to a singular fact.
And as to clarity, Meyers’s offer to “put [his] hand on a Bible or do
whatever needs to be done or even take a lie detector test” and his
acknowledgement that he was supposed to bring this issue up ear-
lier indicate that he was disputing that fact from the PSI.
The sentencing court’s response, in turn, indicates that it
recognized Meyers’s interjection as an objection to the PSI that
would place the alleged fact in dispute. It said:
[I]n making this [sentencing] determination, the
Court has considered . . . the nature and circum-
stances of the offense, including the manner and
death of one animal. And I am making a specific find-
ing. I hear what you’re saying now. The evidence that
has been presented up to this time in this case indi-
cates to me and I am making a finding of fact that I
do believe that you did, in fact, kill that dog as has
been described in the record . . . .
Meyers met his burden of making a specific and clear objec-
tion to the PSI—albeit an untimely one. The district court recog-
nized his interjection as such and “ma[de] a specific finding” that
Meyers did hang his dog to death. It said that “[t]he evidence . . .
presented up to this time” supported that determination. The key
question is whether sufficient evidence supported that finding. Re-
call that a district court has four potential bases to make factual
findings at sentencing: “[1] evidence heard during trial, [2] facts ad-
mitted by a defendant’s plea of guilty, [3] undisputed statements in
the presentence report, or [4] evidence presented at the sentencing
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21-13891 Opinion of the Court 9
hearing.” Wilson, 884 F.2d at 1356. Because there was no trial in
this case, the government conceded at oral argument that there
was nothing in Meyers’s guilty plea admitting to the hanging, and
no new evidence was presented at the sentencing hearing, Options
1, 2, and 4 are out. That leaves only Option 3—“undisputed state-
ments in the presentence report.”
The problem is that by acknowledging Meyers’s objection
and making the finding, the district court also—though perhaps
unintentionally—acknowledged that the fact was disputed. At that
point, the district court had two options under Rule 32(i)(3)(B): It
could either rule on the dispute or determine that a ruling was un-
necessary “either because the matter w[ould] not affect sentencing,
or because the court w[ould] not consider the matter in sentenc-
ing.”
The district court couldn’t take the second route because it
had already stated that it had considered the matter in sentencing,
and because it had said previously that the hanging of the dog
“bl[ew its] mind” and that it “ha[d] been fighting for the months
that this case ha[d] been in front of [it] to understand it.” Doc. 561
at 23. That left the first route—ruling on the dispute. But that
meant the district court had to require the government to establish
the alleged fact by a preponderance of the evidence. Rodriguez, 732
F.3d at 1305. What the court couldn’t do is rely on the now-
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10 Opinion of the Court 21-13891
disputed portions of the PSI.4 But that’s what it did. In doing so,
it erred.5
III
Because the district court erred when it made a factual find-
ing regarding a disputed fact without requiring the government to
establish that fact by a preponderance of the evidence, we VA-
CATE Meyers’s sentence and REMAND for the district court to
allow the government an opportunity to establish the allegation
that Meyers hanged his dog to death by a preponderance of the
evidence.
4 The district court could of course rely on undisputed statements in the PSI.
See Wilson, 884 F.2d at 1356. Meyers’s specific objection to the PSI was that he
didn’t hang his dog to death. But he didn’t dispute, for example, that he owned
the dog that was killed, that he exhibited the dog in the first fight, or that the
dog was found dead behind his car. Even so, we don’t think that the undis-
puted portions of the PSI provide a sufficient basis for concluding by a prepon-
derance of the evidence that Meyers hanged his dog to death. That Meyers
owned the dog and entered it into a fight certainly doesn’t establish that he
killed it; indeed, Meyers’s dog’s victory in the fight might more reasonably
imply that he had no motive to do so. Nor do the remainder of any undisputed
facts in the PSI satisfy the preponderance standard.
5 We acknowledge that the district court could have overruled Meyers’s ob-
jection on the ground that it was untimely under Rule 32(f)(1). Aguilar-Ibarra,
740 F.3d at 591. But it didn’t. There is no hint in the sentencing transcript that
the court rejected Meyers’s objection on timeliness grounds. Rather, the tran-
script makes clear that the sentencing court resolved the dispute on the merits
when it said, “I am making a specific finding. . . . The evidence . . . indicates
to me and I am making a finding of fact that I do believe that you did, in fact,
kill that dog as has been described in the record . . . .” Doc. 561 at 27.
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