USA v. Angelo Shaw

Filing

Opinion issued by court as to Appellant Angelo Anton Shaw. Decision: Affirmed in part, Vacated and Remanded in part. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16918
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20366-CMA-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELO ANTON SHAW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 2, 2017)
Before HULL, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:

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Angelo Aton Shaw was convicted, after a jury trial, of possessing a
controlled substance with intent to distribute and possessing a firearm in
furtherance of a drug trafficking crime. He pled guilty to possessing a firearm
while subject to a protective order. This is his appeal of the 97-month sentence
and the $2,500 fine both imposed as a result of these convictions. Shaw argues
that the district court erred (1) in granting the government’s for-cause challenges to
five prospective jurors; (2) in denying the application of a sentence reduction for
acceptance of responsibility; and (3) in imposing the $2,500 fine. After careful
review, we affirm Shaw’s conviction and sentence except as to the fine and we
vacate his sentence as to the fine and remand for resentencing.
I.
In the early morning of March 26, 2016, a police officer attempted to stop
Shaw, who was riding a bicycle without a light. Shaw fled and was later caught
with a firearm, thirty bags of crack cocaine, and twenty-one bags of heroin in his
possession. At the time of his arrest, Shaw was subject to a domestic violence
injunction, which prohibited him from possessing a firearm.
On May 19, 2016, Shaw was indicted, charged with three counts: possession
with intent to distribute a controlled substance, in violation of 21 U.S.C.
§ 841(a)(1) (Count One); possession of a firearm in furtherance of a drugtrafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); and
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possession of a firearm and ammunition while subject to a protective order, in
violation of 18 U.S.C. § 922(g)(8) (Count Three). On July 14, 2016, Shaw pled
guilty to Count Three.
A. JUROR SELECTION
The following day, jury selection began for Shaw’s trial on Counts One and
Two. At the end of voir dire, the government moved to strike jurors for cause, five
of whom are the subject of this appeal.
Juror 3—In Juror 3’s questionnaire, she wrote “I don’t alway[s] side with
the brutality of the police department against civilians.” In response to the district
judge’s questioning, Juror 3 said: “I just don’t always side with the police
department . . . how they going about their cruelty towards citizens.” The
exchange continued:
Judge:
Juror 3:
Judge:
Juror 3:
Judge:
Juror 3:

And do you come to court with a preconception, are you going
to hold the [g]overnment to an even higher standard or no?
No. I hold it—
You’ll hold them what? To what, I’m sorry?
I’ll hold the [g]overnment to the high standard.
To the high standard I announced, not some other higher
standard you have?
No.

Juror 6—In Juror 6’s questionnaire, he wrote that he’d been arrested 15
years ago and that his arrest might affect his ability to be fair and impartial. The
district judge questioned him further:

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Judge:

Juror 6:
Judge:
Juror 6:
Judge:
Juror 6:
Judge:
Juror 6:
Judge:
Juror 6:

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And you wrote about something that occurred about 15 years
ago. Is there anything about that experience that would affect
your ability to judge this case?
Yes, it—it will be. I am going to try to be fair, but maybe—
maybe not.
You don’t think you can be fair?
I don’t think so.
You served last year as a juror in another case.
Yes, it was different. Every time I come here, I am reminded
about my bad experience.
Your bad experience?
Yes.
Your bad experience didn’t affect you last year, but you think
it’s going to affect you—
No, no, no. I’m trying to say I am trying to go over this
problem, but every time I come here—I am going to be fair, I
am going to try to be fair.

Upon further questioning by the attorney for the government, Juror 6 elaborated
that he “was arrested about 15 years ago, and I think I didn’t fail nothing, nothing,
but the officer said I did.” When then asked if he could be an impartial juror, he
first responded “I am going to try to,” and then on further prompting, said his past
experiences would not impact his decisions.
Juror 10—Juror 10 raised her hand when the district judge asked the panel
if anyone thought they could not “sit in judgment of others or would be
uncomfortable in doing so for religious or moral reasons.” On further questioning,
she said:
Juror 10:
Judge:
Juror 10:

I’m a Christian.
Um-hmm.
And my pastor and the Bible says we shouldn’t judge anyone.
And I feel very uncomfortable to judge.
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Judge:
Juror 10:

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Okay. So you cannot sit in judgment?
No.

Juror 14—On his questionnaire, Juror 14 reported that he was a criminal
justice major who “believe[d] the current criminal justice system has way too
many flaws and errors,” and that his brother had faced drug charges earlier that
year. After being told about Shaw’s charges, Juror 14 raised his hand to indicate
that the nature of the case could affect his ability to be impartial. He mentioned his
brother’s recent similar drug charge and said he was “trying to stay away from that,
just stay on the right path, I don’t want to get involved.” When the attorney for the
government later asked Juror 14 if he could be impartial, he responded: “Based on
what I’ve seen in class . . . everything’s about the law, not really about what’s true
or what actually happened, whoever is the best at proving the law, I don’t think I
can be fair based on what I know.”
Juror 21—In her questionnaire, Juror 21 wrote that her ability to be fair and
impartial might be affected because: “I avoid judging others—I think life
circumstances are part of our evolutionary process.” When the district judge asked
whether anyone would be uncomfortable sitting in judgment of others for religious
or moral reasons, she responded: “I have a hard time with judgment or judging
others because I have been working on myself personally a lot not to be
judgmental or judging other people.” Although she had previously served on a

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jury, Juror 21 clarified that that was before she had concerns about sitting in
judgment.
After questioning by both the district judge and the attorney for the
government, Shaw’s attorney attempted to rehabilitate these jurors. Shaw’s
attorney asked Jurors 3, 10, and 14 if they could follow the court’s instructions and
return a verdict of guilty if the government met its burden. All three responded
“Yes.” When Shaw’s attorney similarly tried to rehabilitate Juror 21, she
responded that it would be very difficult for her to judge, but she believed she
could. When the government moved to exclude Juror 3 for cause, Shaw’s attorney
argued that she had been rehabilitated. The district court judge responded:
I don’t believe she was rehabilitated. I don’t think there’s quite such a
thing . . . . Had she said that I would have trouble sitting in judgment
if I don’t hear from Mr. Shaw, and [the attorney for the government]
rehabilitated her by saying yes, but if I don’t hear from him, I promise
to be fair, I dare say you would be seeking a cause challenge because
the first response was the more truthful of the two.
In general, the district judge found that statements made by the challenged jurors to
Shaw’s attorney were outweighed by their earlier statements to the court. For
example, when Shaw’s attorney objected to the removal of Juror 10 for cause, the
district judge responded: “I take her answers to me as truthful. I take her later
answers to you in response to prodding, leading questions as being less than
truthful.” In the end, fifteen jurors were removed for cause, including Jurors 3, 6,
10, 14, and 21.
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B. SENTENCING
The jury found Shaw guilty of Counts One and Two. In preparation for
sentencing, a probation officer prepared a presentence investigation report
(“PSR”). To calculate Shaw’s sentence, the PSR grouped Counts One and Three
based on United States Sentencing Guidelines § 3D1.2(c), and then used the most
serious count, Count Three, to set the offense level. Count Two was kept separate
because it required a consecutive sentence. The PSR determined that no
enhancements or reductions were merited, and set the guideline imprisonment
range at 37 to 46 months for Counts One and Three, to be followed by a
consecutive term of not less than five years for Count Two. The PSR also
calculated the fine range to be between $15,000 and $1,000,000, but noted that
Shaw had been unemployed since 2012 and appeared to have no assets. Based on
a number of outstanding bills and child support arrearages, the PSR determined
that Shaw had a negative net worth of $29,928, and that he did not appear able to
pay a fine.
At sentencing, Shaw argued that he should be eligible for an acceptance of
responsibility sentence reduction based on his guilty plea to Count Three. The
court found that Shaw was “not deserving of points off for accepting responsibility
for his actions in full,” and sentenced Shaw to 97-months imprisonment and a

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$2,500 fine. Shaw objected to both the court’s decision not to apply the
acceptance of responsibility reduction and to the assessment of the $2,500 fine.
II.
First, Shaw appeals the district court’s decision to grant the government’s
for-cause challenges to five prospective jurors. “We review a district court’s
decision to strike a prospective juror for cause for abuse of discretion.” United
States v. Abraham, 386 F.3d 1033, 1035 (11th Cir. 2004).
The Constitution provides the right to an impartial jury. U.S. Const. Amend.
VI. A juror is impartial when he “can lay aside his opinion and render a verdict
based on the evidence presented.” Patton v. Yount, 467 U.S. 1025, 1037 n.12, 104
S. Ct. 2885, 2891 n.12 (1984). If a court determines that a juror cannot be
impartial, that juror may be removed for cause. In reviewing for-cause challenges,
we recognize that the trial record may not adequately capture the examining
judge’s impressions of jurors. As such, we give deference to the district court,
which has the advantage of having seen and heard the jurors. See United States v.
Brown, 441 F.3d 1330, 1357 (11th Cir. 2006). “[T]here are few aspects of a jury
trial where we would be less inclined to disturb a trial judge’s exercise of
discretion than in ruling on challenges for cause in empanelling of a jury.” United
States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983).

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Shaw argues that five defense-friendly jurors were improperly removed for
cause, and that as a result, the government effectively received more peremptory
challenges than it was allotted by law. He points specifically to Jurors 10 and 21,
who expressed concern that their beliefs would not allow them to sit in judgment,
and Jurors 3, 6, and 14, who expressed concerns about their impartiality based on
experiences with the criminal justice system.
On this record, we cannot say that the district court abused its discretion in
removing the five challenged jurors for cause. In her questionnaire, Juror 3
expressed concerns about police brutality impacting her impartiality and upon
questioning, seemed to say she would hold the government to a higher standard
than the one the court provided. While Juror 6 eventually said he would try to be
fair, he initially said he didn’t think he could be, based on his prior arrest. Juror 14
said his impartiality would be impacted by his knowledge as a criminal justice
major, but more importantly, by his brother’s recent arrest for similar charges. In
each of these cases, the district court did not abuse its discretion in finding that
these jurors would not lay aside their opinions and decide the case impartially.
There was no abuse of discretion as to Jurors 10 and 21 either. While Shaw argues
that their stated religious or moral beliefs did not rise to the level of bias, both
jurors expressed concern about their ability to sit fairly in judgment. The district
court did not abuse its discretion in removing them for cause.
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The cases Shaw cites for support do not require a different result. Shaw
provides us with no examples in which this or any other court reversed a trial court
for inappropriately choosing to excuse a juror for cause. Indeed, the only cases
Shaw offers in which a trial court was found at fault involve a judge’s refusal to
excuse a juror for cause despite obvious signs of bias. In one case, for example, a
juror personally knew the plaintiff and potential witnesses. In all the other cases
involving “garden-variety expressions of bias or doubt,” we deferred to the trial
court. These cases counsel in favor of deference to the trial judge here.
The record does not bear out Shaw’s characterization of the district judge’s
comments as foreclosing rehabilitation entirely. Instead, the district judge merely
found specific attempts at rehabilitation to be insufficient. For the most part,
Shaw’s rehabilitation consisted of his asking jurors if they could be fair, and the
jurors responding with a one-word affirmance. We conclude the district judge did
not abuse its discretion by weighing the jurors’ earlier, ambiguous answers to the
court’s questions more heavily than later cursory responses to Shaw’s attorney.
Because the district court did not abuse its discretion in removing the five
challenged jurors for cause, we in turn reject Shaw’s argument that the government
effectively received five additional peremptory challenges. We affirm the district
court’s decision to excuse the challenged jurors for cause and affirm Shaw’s
convictions as well.
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III.
Second, Shaw appeals the district court’s refusal to reduce his sentence for
acceptance of responsibility. We review a district court’s decision declining to
apply the acceptance of responsibility reduction for clear error. United States v.
Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005).
Guidelines § 3E1.1 allows for an offense level decrease “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense.” USSG
§ 3E1.1(a). “A district court’s determination that a defendant is not entitled to
acceptance of responsibility will not be set aside unless the facts in the record
clearly establish that a defendant has accepted personal responsibility.” United
States v. Amedeo, 370 F.3d 1305, 1320–21 (11th Cir. 2004) (quotation omitted).
The district court’s refusal to apply the acceptance of responsibility
reduction was not clear error. First, while entering a guilty plea before trial and
truthfully admitting the relevant convict “will constitute significant evidence of
acceptance of responsibility,” USSG § 3E1.1 cmt. n.3, “[a] guilty plea does not
automatically entitle a defendant to a reduction for acceptance of responsibility,”
United States v. Rowland, 906 F.2d 621, 622 (11th Cir. 1990). Second, this circuit
has determined that “[a] defendant who fails to accept responsibility for all the
crimes he has committed and with which he has been charged is entitled to nothing
under § 3E1.1.” United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001).
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Based on the Sentencing Guidelines commentary and our circuit precedent, we
find it was not clear error for the district court to refuse to apply the acceptance of
responsibility reduction when Shaw pled guilty to one of his three charged counts.
IV.
Third, Shaw appeals the district court’s imposition of a $2,500 fine. We
review a district court’s finding that a defendant is able to pay a fine for clear error.
United States v. McGuinness, 451 F.3d 1302, 1307 (11th Cir. 2006) (per curiam).
The Sentencing Guidelines require the court to “impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely to
become able to pay.” USSG § 5E1.2(a). The Guidelines also provide a list of
factors that the court is required to consider when setting the amount of the fine,
including “the defendant’s ability to pay” and “the burden that the fine places on
the defendant and his dependents relative to alternative punishments.” Id.
§ 5E1.2(d). The district court is not required “to make specific findings of fact
with respect to the Sentencing Guideline factors as long as the record reflects the
district court’s consideration of the pertinent factors prior to imposing the fine.”
United States v. Hernandez, 160 F.3d 661, 665–66 (11th Cir. 1998) (quotation
omitted and alteration adopted). And when the district court has “reviewed the
[PSR] before imposing the fine and heard argument of counsel about the fine” we
may infer that the pertinent factors were considered. United States v. McNair, 605
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F.3d 1152, 1234 (11th Cir. 2010). However, “when the record provides no
guidance as to the court’s reason(s) for imposing a fine, we must remand the case
so that the necessary factual findings can be made.” Hernandez, 160 F.2d at 666.
This record includes no evidence offered to contradict the PSR’s
determination that Shaw was unable to pay a fine. The district court’s decision to
fine Shaw $2,500 without explanation was therefore clear error. The PSR
described Shaw as being unemployed since 2012 and having a negative net worth
of $29,928, largely as a result of outstanding child support arrearages. The PSR
concluded: “Based on the defendant’s present financial situation and need to
support his minor children, it appears he does not have the ability to pay a fine.”
Nevertheless, the district court required Shaw to pay a fine of $2,500, with no
discussion whatsoever. Shaw objected to the fine as “based on a lack of record
evidence,” but while the court acknowledged that objection, no other support was
provided. In United States v. Gonzalez, 541 F.3d 1250 (11th Cir. 2008), we
vacated and remanded for resentencing where the court imposed a $250,000 fine
without explanation, and the PSR reflected that the defendant lacked the ability to
pay a fine. Id. at 1256–57. While Shaw’s fine in this case is certainly smaller than
that in Gonzalez, it is equally unsupported by any basis for rejecting the
recommendation in the PSR. We therefore vacate Shaw’s sentence as to the fine
and remand for resentencing in that regard.
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AFFIRMED IN PART, VACATED AND REMANDED IN PART

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