United States v. DiFalco

• Decision Date: 20 September 2016
• Docket Number: No. 15-14763,15-14763
• Citation: 837 F.3d 1207
• Parties: United States of America, Plaintiff-Appellee, v. Michael Francis DiFalco, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

837 F.3d 1207

United States of America, Plaintiff-Appellee,

v.Michael Francis DiFalco, Defendant-Appellant.

No. 15-14763

United States Court of Appeals, Eleventh Circuit.

Date Filed: September 20, 2016

Cherie Krigsman, Arthur Lee Bentley, III, Matthew Jackson, Yvette Rhodes, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Judy K. Hunt, Law Office of Judy K. Hunt, St. Petersburg, FL, for Defendant-Appellant.

Before MARCUS and WILLIAM PRYOR, Circuit Judges, and LAWSON,^* District Judge.

MARCUS

, Circuit Judge:

Michael DiFalco appeals his 240-month sentence imposed after pleading guilty to one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine. He claims that his sentence was imposed in error because the government did not file a proper information under 21 U.S.C. § 851

to support his enhanced sentence. But DiFalco signed a plea agreement waiving his right to appeal his sentence. Because we hold that a defendant may waive § 851's requirements, and the record before us establishes that DiFalco knowingly waived his right to appeal his sentence, we dismiss his appeal. But, even if we found that the defendant had not knowingly waived his right to challenge his sentence in this Court, DiFalco has failed to meet his burden of establishing that the district court erred, plainly or otherwise, in imposing a 240-month sentence.

I.

DiFalco was arrested and charged by a federal grand jury sitting in the Middle District of Florida for his role acting as the “source” of approximately 81 grams of methamphetamine for co-defendant Cheyenne Bryant who, in turn, sold the drugs on two occasions to a confidential informant working with federal law enforcement agents. DiFalco initially pled not guilty to a two-count indictment charging both him and Bryant. Bryant subsequently pled guilty to the charges leveled against her for conspiracy to distribute and possess with intent to distribute 50 grams or more of a substance containing a detectable amount of methamphetamine, and possession with intent to distribute and distribution of 50 grams or more of a substance containing a detectable amount of methamphetamine. The government then filed a two-count superseding indictment charging DiFalco with: (1) conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846

, 841(a)(1), 841(b)(1)(A)(viii), 851, and 18 U.S.C. § 2 ; and (2) possession with intent to distribute and distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 851, and 18 U.S.C. § 2.

Shortly after the superseding indictment was returned, DiFalco and the government began negotiating a possible plea agreement. As court filings from both sides indicated, DiFalco faced the possibility of a mandatory life sentence based on his multiple prior state-court drug convictions. On June 17, 2013, the Assistant United States Attorney responsible for prosecuting DiFalco informed the district court that he had received approval from his supervisor to enter into a plea agreement whereby the government would file only one 21 U.S.C. § 851

enhancement against the defendant, thereby reducing his potential sentence exposure from a mandatory term of life in prison to a mandatory minimum of 20 years of incarceration.

Three days later, DiFalco signed a plea agreement with the United States. Pursuant to the terms of the deal, DiFalco agreed to plead guilty to Count 1 of the superseding indictment, and the government agreed to dismiss Count 2 and refrain from charging DiFalco with any other federal crimes known to the government and related to the conduct giving rise to the agreement. The agreement also provided that, by entering a plea of guilty, DiFalco admitted to the charge alleged in Count 1 and that he had “previously [been] convicted of a felony drug offense.” The agreement also accurately noted that, by pleading guilty, DiFalco would be punished “by a mandatory minimum term of 20 years and a maximum term of life imprisonment, a term of supervised release of at least 10 years, a fine of up to $20,000,000, and a special assessment of $100, said special assessment to be due on the date of sentencing.”

Notably, the plea agreement also included an appeal waiver that read this way:

The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b)

, then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

DiFalco initialed each page of the agreement and signed the final page. DiFalco acknowledged in the agreement that he was pleading guilty freely and voluntarily.

On June 27, 2013, before the defendant entered a plea of guilty, the government filed an “Information and Notice of Prior Conviction” pursuant to 21 U.S.C. §§ 851

and 841(b)(1) notifying DiFalco that he was subject to an enhanced mandatory minimum sentence based on a prior felony drug conviction. Specifically, the information said that “[o]n or about July 19, 2007, the defendant was convicted of sale and possession with the intent to sell Amphetamine and Marijuana, in and for the Tenth Circuit Court of Bartow County, Florida, Case Number 2000CF8119[.]” The details set forth in the information, however, do not precisely align with the conviction contained in DiFalco's record as set forth in his Presentence Investigation Report (“PSI”). Rather, DiFalco had a prior conviction entered on July 19, 2002 for trafficking in amphetamine, manufacture of cannabis, possession of MDMA (ecstasy), possession of Alprazolam, use or possession of drug paraphernalia, and driving with a suspended license in the Circuit Court in Polk County, Florida under case number 00-CF-8119. The PSI noted that DiFalco was also charged with possession of cannabis with intent to sell in that case, but that no action was taken on that charge. DiFalco's record, as set forth in the PSI in paragraphs 45 and 46, also reveals two other sets of convictions on July 19, 2002: one for operating a chop shop and grand theft of a motor vehicle under case number 01-CF-676; and another for possession of methamphetamine, possession of cannabis, and use or possession of drug paraphernalia under case number 01-CF-677. DiFalco also had been convicted of another series of drug and vehicle related crimes on October 11, 2010, including possession of methamphetamine with intent to sell or deliver; possession of cannabis with intent to sell; possession of Oxycodone; possession of drug paraphernalia; actual or constructive possession of a structure used for trafficking, sale, or manufacture of a controlled substance; possession of a firearm or ammunition by a convicted felon; possession or sale of a vehicle with an altered vehicle identification number; and possession of a vessel with an altered hull identification number. The PSI did not indicate that DiFalco had any convictions for any crimes in 2007. The final page of the § 851

information included a certification that the assistant United States attorney had “electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the counsel of record.”

Later that day, DiFalco appeared at a change-of-plea hearing before a magistrate judge to enter a plea of guilty to the federal drug conspiracy count. The magistrate judge first ascertained that DiFalco was not under the influence of any type of drug or alcoholic beverage. The magistrate judge then explained the terms of the plea agreement to DiFalco in order to ensure that he understood the terms of the agreement. Among other things, the magistrate judge explained that the plea agreement provided that DiFalco would plead guilty to the first count of the indictment, that the government would dismiss the remaining counts against him, that the government would recommend he receive a sentence within the Guidelines range, that the government would recommend a downward adjustment in that range based on his acceptance of responsibility, that DiFalco agreed to cooperate fully with the government in its investigation and prosecution of others, and that DiFalco would forfeit any and all assets subject to forfeiture as a consequence of his illegal activity.

The magistrate judge also reviewed with DiFalco the penalties he would face upon pleading guilty to the conspiracy charge. Thus, he explicitly told DiFalco that he faced a minimum mandatory penalty of 20 years in prison and up to a maximum sentence of life imprisonment, a term of supervised release of at least 10 years, a fine of up to $20 million, and a special assessment in the amount of $100. The magistrate judge explained to DiFalco that the government had filed a notice of information and so DiFalco potentially faced an enhanced prison term because of one of his prior drug convictions. DiFalco said that he understood these penalties.

The magistrate judge also explained the appeals waiver found in the plea agreement, telling DiFalco what the waiver meant and what exceptions applied. Specifically, the defendant was told that although he would ordinarily have the right to appeal his sentence to the Eleventh Circuit Court of Appeals, he...