USA v. Billy Harper

Filing

Opinion issued by court as to Appellant Billy James Harper. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-10213

Date Filed: 02/05/2014

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10213
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00276-MMH-TEM-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

BILLY JAMES HARPER,
a.k.a. "BJ",
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 5, 2014)
Before TJOFLAT, JORDAN and FAY, Circuit Judges.

Case: 13-10213

Date Filed: 02/05/2014

Page: 2 of 4

PER CURIAM:
Pursuant to a plea agreement, Billy James Harper pled guilty to Count One
of a multi-count indictment, which alleged, in Count One, that he and five others
were employed by and associated with a criminal enterprise, the “Guardians,” and
unlawfully participated in the affairs of the enterprise through a pattern of
racketeering activity, in violation of the Racketeering Influenced and Corrupt
Organizations Act, specifically 18 U.S.C. § 1962(c). According to the plea
agreement, Harper committed acts of racketeering by:
(1) knowingly, intentionally, and maliciously threatening injury to a
person with the intent to cause that person to do an act against his
will in violation of Sections 836.05, 775.082, 775.087, 777.011,
Florida Statutes(Racketeering Act One); (2) knowingly, willfully,
and intentionally selling or delivering anabolic steroids, a Schedule
Ill controlled substance in violation of Sections 893.13(1)(a)2,
775.082, and 775.083, Florida Statutes (Racketeering Acts Nine,
Ten, and Seventeen); and (3) knowingly entering a dwelling with
the intent to permanently or temporarily deprive a person or owner
of money or other property, and in the course of the taking using
force, violence, assault, or putting in fear, and further in the course
of the taking carrying or using a firearm in violation of Sections
812.13, 812.135(1), 812.135(2)(a), 775.082, 775.083, 775.087,
777.011, Florida Statutes (Racketeering Act Fourteen).
Plea agreement at 2. The District Court accepted Harper’s plea and sentenced him
to prison for a term of 100 months, within the applicable sentence range under the
Sentencing Guidelines, 84-105 months imprisonment.1

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A total offense level of 23 and a criminal history category V yielded a sentence range of 84105 months’ imprisonment. The maximum penalty prescribed by statute is life imprisonment.
18 U.S.C. § 1963(a).
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Case: 13-10213

Date Filed: 02/05/2014

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Although the plea agreement Harper signed contains an appeal-waiver
provision, he appeals the District Court’s judgment. Harper claims that the
Government breached the plea agreement by recommending, under U.S.S.G. §
5K1.1, that the court reduce his offense level by four levels, instead of twelve, and
that the court impose a sentence at the high-end of the Guidelines sentence range,
105 months’ imprisonment. He also claims that his sentence of 100 months
constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Harper did not assert these claims in the District Court; rather, he presents
them for the first time in this appeal. To prevail, Harper must convince us that the
District Court committed plain error in failing to recognize that the Government
breached the plea agreement as he contends, and in sentencing him to prison for
100 months. See United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006).
[A]n appellate court may, in its discretion, correct an error not raised at trial

only where the appellant demonstrates that (1) there is an “error”; (2) the
error is “clear or obvious, rather than subject to reasonable dispute”; (3) the
error “affected the appellant's substantial rights, which in the ordinary case
means” it “affected the outcome of the district court proceedings”; and (4)
“the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 556 U.S. 129, ––––, 129
S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted).

United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 2164, 176 L.Ed.2d
1012 (2010).

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Case: 13-10213

Date Filed: 02/05/2014

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Harper points to nothing in the plea agreement that made it “clear or
obvious” that the Government’s conduct during the sentencing hearing constituted
a breach of the agreement; nor does he cite any precedent that would have made it
plain to the court that it was obligated to read through the plea agreement during
the sentencing hearing to ensure that the Government was not breaching any of its
terms. In short, the Government’s conduct did not constitute error, much less plain
error. As for his Eighth Amendment claim, Harper cites nothing for the
proposition that a 100 months’ sentence that is below statutory maximum penalty
and the applicable Guidelines sentence range violates the Amendment.
AFFIRMED.

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