USA v. Brittany Smith

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10143
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRITTANY SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cr-00063-MTT-CHW-4
____________________
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2 Opinion of the Court 23-10143
Before NEWSOM , ABUDU, and MARCUS, Circuit Judges.
PER CURIAM:
Brittany Smith appeals her sentence of 135 months’ impris-
onment for possession of more than 5 grams of methamphetamine
with intent to distribute. On appeal, Smith argues that: (1) the gov-
ernment breached the plea agreement by failing to advocate for an
acceptance-of-responsibility reduction at sentencing; (2) the court
erred in denying the acceptance-of-responsibility reduction by
treating her failed drug tests as an outright ban to a reduction; and
(3) the court improperly imposed a sentence harsher than those im-
posed on her codefendants. After careful review, we affirm.
I.
Ordinarily, we review de novo whether the government has
breached a plea agreement. United States v. Malone, 51 F.4th 1311,
1318 (11th Cir. 2022). Where, however, a defendant fails to object
before the district court that the government breached a plea agree-
ment, we review for plain error. Id. To establish plain error, the
defendant must show (1) an error, (2) that is plain, and (3) that af-
fected his substantial rights. United States v. Turner, 474 F.3d 1265,
1276 (11th Cir. 2007). If the defendant satisfies these conditions, we
may exercise our discretion to recognize the error only if it seri-
ously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. A plain breach of the plea agreement can be
shown from the plain language of the agreement itself. See Malone,
51 F.4th at 1320–21. Otherwise, there must be binding precedent
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23-10143 Opinion of the Court 3
directly resolving an issue to establish that an error was plain.
United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015). A de-
fendant’s substantial rights are affected if the error “affected the
outcome of the district court proceedings,” which requires the de-
fendant to show a “reasonable probability” that his sentence would
be different. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th
Cir. 2005). “[W]here the effect of an error on the result in the dis-
trict court is uncertain or indeterminate -- where we would have to
speculate -- the appellant has not met his burden.” Id. at 1301. Put
differently, “where the record does not provide any indication that
there would have been a different sentence” absent the error, “the
party with the burden of showing a reasonable probability of a dif-
ferent result loses.” Id. at 1304 (quotations omitted).
We review a district court’s denial of an acceptance-of-re-
sponsibility adjustment under U.S.S.G. § 3E1.1 for clear error.
United States v. Tejas, 868 F.3d 1242, 1247 (11th Cir. 2017). We re-
view the sentence a district court imposes for “reasonableness,”
which “merely asks whether the trial court abused its discretion.”
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 551 U.S. 338, 351 (2007)).
II.
First, we are unpersuaded by Smith’s claim that the govern-
ment breached its plea agreement by failing to advocate for an ac-
ceptance-of-responsibility reduction at sentencing. The Sentencing
Guidelines provide that a defendant’s offense level should be de-
creased by two levels if she “clearly demonstrates acceptance of
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4 Opinion of the Court 23-10143
responsibility for his offense.” U.S.S.G. § 3E1.1(a). A defendant’s
offense level may be further decreased by one level if the offense
level determined prior to the subsection (a) decrease is 16 or
greater and the government files a motion stating that the defend-
ant has assisted authorities in the investigation or prosecution of
his own misconduct by timely notifying authorities of her intention
to enter a plea of guilty. Id. § 3E1.1(b).
A material promise set out in a plea agreement, which in-
duces a defendant to plead guilty, binds the government to that
promise. United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir.
2007). The government breaches a plea agreement when it fails to
perform the promises on which the plea was based. United States
v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). In Hunter, we ex-
plained that the government cannot avoid fulfilling the terms of the
plea agreement based solely on facts of which it was aware prior to
entering the agreement, noting that “[s]uch a practice would ren-
der the government’s promise to recommend the reduction illu-
sory and defy a defendant’s reasonable understanding of the plea
agreement.” Id. at 1326.
To evaluate the scope of the government’s promises, we ask
whether the government’s conduct conflicted with the defendant’s
reasonable understanding of the government’s promises when he
entered his guilty plea. Malone, 51 F.4th at 1319. In Malone, we held
that the government breached the plea agreement where it agreed
not to argue against a reduction unless the defendant manifested a
lack of acceptance of responsibility between entry of the plea and
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23-10143 Opinion of the Court 5
sentencing and then affirmatively argued against a reduction for
acceptance of responsibility based on the defendant’s pre-plea crim-
inal conduct. Id. at 1320–21. We also concluded that the error af-
fected the defendant’s substantial rights because the provision in
the plea agreement was material and the district court expressly
stated that it relied in part on the government’s argument when
denying the defendant the reduction. Id. at 1321.
Here, because Smith did not object in the district court to
the government’s alleged breach -- its failure to recommend an ac-
ceptance-of-responsibility reduction -- we review her claim for
plain error, and we can find none. As the record reflects, the gov-
ernment agreed in the plea agreement that if Smith “affirmatively
manifests an acceptance of responsibility,” then it would “recom-
mend to the Court that the Defendant receive an appropriate
downward departure for such acceptance.” It also “expressly re-
serve[d] its right to furnish to the Court information, if any, show-
ing that the Defendant ha[d] not accepted responsibility.” Later, at
sentencing, the government did not make the recommendation,
staying silent on the issue, and both parties admitted that Smith had
failed several drug tests while on pre-trial release.
Based on the language in the plea agreement, the govern-
ment was not plainly obligated to recommend an acceptance-of-
responsibility reduction in light of Smith’s failed drug tests, which
were inconsistent with an acceptance of responsibility for her drug
charges. As for whether the government improperly declined to
make a recommendation based on facts occurring before it entered
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6 Opinion of the Court 23-10143
into the plea agreement of which it was aware, Hunter, 835 F.3d at
1326, the record indicates that the prosecutor did not know about
the failed drug tests before entering into the plea agreement. And
although the parties later amended the plea agreement, it was only
amended to stipulate to a drug amount that lowered Smith’s guide-
lines range, and no other changes were contemplated. We are un-
able to say, on this record, that the government plainly breached
the plea agreement when it declined to recommend the reduction.
But, in any event, even if the government had plainly
breached the plea agreement, Smith has not shown a reasonable
probability that her sentence would be different. Rodriguez, 398
F.3d at 1299. To the contrary, the district court likely would have
denied the acceptance-of-responsibility reduction even if the gov-
ernment had advocated for it. This is especially true in light of the
court’s comment -- following Smith’s argument as to why the re-
duction was warranted -- that: “I might could excuse and under-
stand one [failed drug test], but several is a classic case that calls for
not giving a defendant the benefit of acceptance of responsibility.”
Further, this statement from the court -- which did not at all appear
to rely on any argument from the government, much less to give
any weight to the government’s silence -- makes this case unlike
Malone, wherein the court said that it had relied on the govern-
ment’s argument against a reduction in issuing its denial. 51 F.4th
at 1321. For these reasons, Smith has not established a reasonable
probability that her sentence would have been different but for the
government’s alleged breach, and, thus, we affirm as to her claim
that the government plainly breached the plea agreement.
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23-10143 Opinion of the Court 7
III.
We similarly are unconvinced by Smith’s argument that the
district court erred in denying a reduction based on acceptance of
responsibility. Because the sentencing judge is in a unique position
to evaluate a defendant’s acceptance of responsibility, the determi-
nation of the sentencing judge is “entitled to great deference on
review.” U.S.S.G. § 3E1.1, comment. (n.5). The district court’s de-
cision on acceptance of responsibility will not be overturned unless
the facts in the record clearly establish that the defendant actually
accepted personal responsibility. United States v. Sawyer, 180 F.3d
1319, 1323 (11th Cir. 1999). The defendant bears the burden of
proving she clearly accepted responsibility. Id.
A defendant who enters a guilty plea is not entitled to an
acceptance-of-responsibility reduction as a matter of right.
U.S.S.G. § 3E1.1, comment. (n.3). Rather, while a guilty plea and
truthful admission of the conduct comprising the offense of convic-
tion is significant evidence of acceptance of responsibility, it may
be outweighed by other conduct that is inconsistent with ac-
ceptance of responsibility. Id. The commentary provides a non‑ex-
haustive list of factors to be considered when deciding if a defend-
ant accepted responsibility, including voluntarily termination or
withdrawal from criminal conduct of associations, post-offense re-
habilitative efforts, and the timeliness of her acceptance of respon-
sibility. Id. § 3E1.1, comment. (n.1). Ultimately, § 3E1.1 “is in-
tended to reward those defendants who affirmatively acknowledge
their crimes and express genuine remorse for the harm caused by
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8 Opinion of the Court 23-10143
their actions.” United States v. Carroll, 6 F.3d 735, 740 (11th Cir.
1993).
In Mathews, we said that a district court may consider a
broad range of evidence when considering whether to grant an ac-
ceptance-of-responsibility reduction, “including whether the de-
fendant has voluntarily withdrawn from criminal conduct.” United
States v. Mathews, 874 F.3d 698, 709 (11th Cir. 2017). We specified
that “[a] district court does not err in denying the reduction if it
concludes that a defendant’s drug use after his arrest shows that he
has not accepted responsibility and turned away from the lifestyle
that motivated his offense.” Id. However, we also noted that a
court errs if it believes that it does not have the authority to grant
such a downward reduction. Id. We concluded that the district
court erred by erroneously believing that a failed drug test meant
that, as a matter of law, it lacked the authority to grant the appel-
lant an acceptance-of-responsibility reduction. Id. at 709–10.
Here, the district court did not err in declining to grant
Smith a reduction for acceptance of responsibility because it did not
clearly err in finding that her four failed drug tests while on pretrial
release indicated that she had not withdrawn from criminal con-
duct. For starters, the record reflects that in making its decision,
the district court solicited arguments from Smith and the govern-
ment, both of whom agreed that her failed tests occurred before
she entered her plea, and Smith argued that her failed drug tests
were due to her drug addiction, a factor the court expressly consid-
ered. What’s more, the court did not treat the fact that Smith had
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23-10143 Opinion of the Court 9
failed a drug test as depriving it of the authority to impose an ac-
ceptance-of-responsibility reduction. Rather, as we’ve noted, the
court said that a reduction still may have been warranted if she’d
failed one test, but not in this case where she’d failed several tests.
On this record, the court’s decision to deny Smith the reduc-
tion comported with Mathews. There, we recognized that district
courts have wide discretion over whether to grant a reduction and
that a district court does not err in denying the reduction based on
a finding that a defendant’s post-arrest drug use shows that she has
not accepted responsibility and turned away from the lifestyle that
motivated her offense. See id. Here, the district court never indi-
cated that it lacked the authority to grant the reduction, and instead
weighed that she had not only failed one drug test, but several drug
tests, in determining that she had not fully accepted responsibility
for her criminal conduct. Accordingly, we affirm the district
court’s decision as to this issue as well.
IV.
Finally, we do not agree with Smith’s claim that the district
court substantively erred in imposing her sentence. In reviewing
the “‘substantive reasonableness of [a] sentence imposed under an
abuse-of-discretion standard,’” we consider the “‘totality of the cir-
cumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). The district court must impose a sentence
“sufficient, but not greater than necessary to comply with the
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10 Opinion of the Court 23-10143
purposes” listed in 18 U.S.C. § 3553(a).1 The court must consider
all of the § 3553(a) factors, but it may give greater weight to some
factors over others -- a decision which is within its sound discretion.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).
The district court is not required to discuss each of the § 3553(a)
factors, and an acknowledgement that it has considered the §
3553(a) factors will suffice. United States v. Turner, 474 F.3d 1265,
1281 (11th Cir. 2007).
However, a sentence may be substantively unreasonable
when a court unjustifiably relies on any single § 3553(a) factor, fails
to consider pertinent § 3553(a) factors, bases the sentence on im-
permissible factors, or selects the sentence arbitrarily. Pugh, 515
F.3d at 1191–92. A sentence that suffers from one of these symp-
toms is not per se unreasonable; rather, we must examine the total-
ity of the circumstances to determine the sentence’s reasonable-
ness. Id. at 1192. “[W]e will not second guess the weight (or lack
thereof ) that the [court] accorded to a given [§ 3553(a)] factor . . .
as long as the sentence ultimately imposed is reasonable in light of
1 The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed to reflect the seriousness of the offense, to promote re-
spect for the law, and to provide just punishment for the offense; (3) the need
for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or voca-
tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
tencing Guidelines range; (8) the pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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23-10143 Opinion of the Court 11
all the circumstances presented.” United States v. Snipes, 611 F.3d
855, 872 (11th Cir. 2010) (quotations, alteration and emphasis omit-
ted). We will vacate a sentence only if we are left with the “definite
and firm” conviction that the district court committed a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sen-
tence that is outside the range of reasonable sentences dictated by
the facts of the case. Pugh, 515 F.3d at 1191.
Specifically, when considering the need to avoid unwar-
ranted sentence disparities among defendants who have been
found guilty of similar conduct under 18 U.S.C. § 3553(a)(6), we
first consider whether the defendant is similarly situated to the de-
fendants to whom she compares herself. United States v. Duperval,
777 F.3d 1324, 1338 (11th Cir. 2015). “[T]here can be no unwar-
ranted sentencing disparities among codefendants who are not sim-
ilarly situated.” United States v. Azmat, 805 F.3d 1018, 1048 (11th Cir.
2015) (quotations omitted).
The party challenging the sentence bears the burden of
demonstrating that the sentence is unreasonable in light of the rec-
ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def-
erence afforded sentencing courts. Rosales-Bruno, 789 F.3d at 1256.
An indicator of a reasonable sentence is one that is well below the
statutory maximum for the crime. United States v. Dougherty, 754
F.3d 1353, 1364 (11th Cir. 2014). We also ordinarily expect that a
sentence within the guideline range is reasonable. United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
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12 Opinion of the Court 23-10143
Here, Smith’s primary argument is that her 135-month sen-
tence is unreasonable because there were unwarranted disparities
between her sentence and the lower sentences that the district
court subsequently imposed on other codefendants. However,
Smith cannot show that they were similarly situated to her because
they were convicted of different offenses, received reductions for
acceptance of responsibility, and were attributed with different
drug quantities. See Duperval, 777 F.3d at 1338. As for codefendant
Emanuael Ivey, for example, he pled guilty to possession with in-
tent to distribute a different drug -- cocaine rather than metham-
phetamine -- and a different quantity, and he was granted an ac-
ceptance-of-responsibility reduction. As for codefendant Antonio
Raines, his offense also involved a different drug -- cocaine base --
and different quantity, and he had a lower criminal history category
than Smith did.
In light of these differences, Smith cannot show that the dis-
trict court committed a clear error of judgment in sentencing her.
Moreover, the reasonableness of Smith’s sentence is supported by
the fact that it was well below the statutory maximum of 40 years
and at the low end of the guideline range. Gonzalez, 550 F.3d at
1324; Dougherty, 754 F.3d at 1364. Accordingly, Smith has not
shown that the district court imposed a substantively unreasonable
sentence, and we affirm.
AFFIRMED.
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