United States Court of Appeals, District of Columbia Circuit
January 23, 2018
Appeals from the United States District Court for the
District of Columbia Nos. 1:13-cr-00203-5, 1:13-cr-00203-3,
Christine Pembroke, appointed by the court, argued the cause
and filed the briefs for appellant Dawayne Brown.
E. Davis, appointed by the court, argued the cause for
appellant Marquette Boston. With her on the briefs was
Pleasant S. Brodnax III, appointed by the court.
Barbara E. Kittay, appointed by the court, argued the cause
and filed the briefs for appellant Ira Adona.
Jonathan Zucker, appointed by the court, argued the cause and
filed the briefs for appellant Keith Matthews.
A. Ewing, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Elizabeth Trosman,
Elizabeth H. Danello, and George P. Eliopoulos, Assistant
Before: Garland, Chief Judge, and Kavanaugh and Millett,
convicted Dawayne Brown, Marquette Boston, and Keith Matthews
of crimes associated with unlawful distribution of PCP. A
fourth defendant, Ira Adona, pled guilty before trial. The
district court sentenced Brown to 14 years in prison; Boston
to eight years; Matthews to nine years; and Adona to nine
years. Adona's sentence was to be served consecutively to
a prison sentence of two years and four months imposed by the
D.C. Superior Court for Adona's attempted assault with a
challenge their convictions and sentences. Brown argues that:
(i) the district court's jury instructions were erroneous
in certain respects; and (ii) the district court based
Brown's sentence on an erroneous factual finding. Boston
contends that the evidence was insufficient to support his
conviction for possession with intent to distribute PCP.
Adona argues that: (i) the district court double counted a
D.C. Superior Court conviction in determining his sentence;
and (ii) his federal and D.C. sentences should run
concurrently, not consecutively. Matthews argues that the
district court erred in sentencing because: (i) the court
enhanced Matthews' sentence based on attempted assault
with a dangerous weapon even though, according to Matthews,
attempted assault with a dangerous weapon is not a crime of
violence; and (ii) the district court failed to adequately
explain Matthews' above-Guidelines sentence.
affirm the judgments of the district court with respect to
Brown and Boston. We vacate the sentences of Adona and
Matthews, and we remand the case to the district court for
resentencing of those two defendants.
Clifton lived in the Woodberry Village apartment complex in
Washington, D.C. On January 12, 2013, Clifton walked into the
Metropolitan Police Department's 7th District station and
told the officers an extraordinary story: Armed men had taken
over his apartment and were using the apartment to
manufacture and sell PCP - all while Clifton continued to
to Clifton, at the end of December 2012, Dawayne Brown and
Keith Matthews attacked Clifton in the foyer of his building
and demanded access to his apartment. Clifton refused. He
managed to break free and fled to the safety of his
apartment. Clifton thought that was the end of it. He was
week later, Dawayne Brown again approached Clifton - this
time, with a gun. Brown forced Clifton into a local Dollar
Store at gunpoint and had Clifton make a copy of
Clifton's house key. Clifton complied, and Brown
immediately took the key. From then on, Brown and Matthews
used Clifton's apartment as they pleased. They came and
went when they wanted, without permission. And they used the
apartment to prepare "dippers" - cigarettes dipped
in PCP - and to store the money earned from selling those
endured Brown and Matthews in his apartment for several weeks
before going to the police. He claimed to have sought help
discreetly at first, including from family members. But that
proved ineffective. Finally, he turned to the police for help
evicting his unwelcome, PCP-dealing home invaders.
police traveled to Woodberry Village and entered
Clifton's apartment, using the key that Clifton had
provided them. A surprised Brown was inside the apartment.
Police placed Brown on a sofa and handcuffed him. When they
lifted him from the sofa, they found a loaded handgun. The
police continued their search of Clifton's apartment and
discovered an Uzi nine-millimeter semi-automatic rifle and a
.38-caliber revolver under the love seat. They also
discovered evidence of PCP, including glass vials with
various amounts of PCP. In total, 44.4 grams of PCP were
police searched Brown's cell phone. Text messages on
Brown's phone led police to pursue Keith Matthews.
March 7, 2013, police arrested Matthews inside another
Woodberry Village apartment. A search of Matthews' phone
led police to discover that the takeover of Clifton's
apartment was not an isolated event. Brown, Matthews, and
some friends had formed a drug-dealing operation that they
called "Little Mexico." Little Mexico's method
of operation involved using Woodberry Village apartments to
stash guns and sell PCP.
cell phone led police to Tiffany Williams' apartment.
When police executed a search warrant at Williams' home,
they found Williams, Ira Adona, Breal Hicks, and
Williams' six-year-old daughter. Police arrested the
three adults and searched the apartment. The search yielded
evidence similar to that found in Clifton's apartment:
partially filled PCP vials, three handguns, and Everclear
grain alcohol, a known cutting agent for PCP.
Williams cooperated with the police and led them to the
apartment of Conovia Eddie, another member of Little Mexico.
After obtaining a search warrant, the police raided
Eddie's apartment. They used a battering ram to enter
after their demands to open the door had been ignored.
Inside, they found Marquette Boston. Boston was standing near
the bathroom, and the odor of PCP was coming from a running
toilet. Police arrested Boston. Police found vials partially
filled with PCP or containing PCP residue, empty vials, and
rubber gloves, in addition to a bulletproof vest and a loaded
.22-caliber pistol with an effaced serial number.
September 10, 2013, the government obtained a 39-count grand
jury indictment against Brown, Boston, Matthews, Adona,
Hicks, and Eddie for conspiracy to distribute and to possess
with the intent to distribute PCP and related offenses.
November 5, 2014, Adona pled guilty to conspiracy to
distribute and possess PCP. Under the plea agreement, Adona
agreed that he had conspired with others to distribute PCP in
Woodberry Village. He also admitted that he had shot a man
named Karl Carrington in the back on April 30, 2012, during a
marijuana transaction. The two crimes were to be sentenced
separately. In the D.C. Superior Court, Adona would be
sentenced for the shooting offense. In the U.S. District
Court, Adona would be sentenced for the drug conspiracy. The
D.C. Superior Court sentenced Adona to two years and four
months in prison. The district court sentenced Adona to nine
years in prison, to be served consecutively to the sentence
of imprisonment imposed by the D.C. Superior Court.
March 24, 2015, the jury found Brown, Boston, and Matthews
guilty. Brown was found guilty of second-degree
burglary while armed; possession with intent to distribute
PCP; and possession of an unregistered firearm. Boston was
found guilty of possession with intent to distribute PCP.
Matthews was found guilty of unlawful possession of a firearm
district court sentenced Brown to 14 years in prison; Boston
to eight years in prison; and Matthews to nine years in
Boston, Adona, and Matthews now appeal.
challenges the district court's jury instructions and his
challenges three aspects of the jury instructions.
in its instructions to the jury, the district court stated
that Brown had previously been convicted in the D.C. Superior
Court for possession of an unregistered firearm. Brown argues
on appeal that the district court erred when it informed the
jury of Brown's prior firearm conviction. The problem for
Brown is that he not only did not object to this instruction
at trial, but he affirmatively invited this
instruction. Brown's counsel insisted that the jury be
informed of the prior conviction, presumably because of a
strategic judgment in the context of all of the evidence and
instructions in the case. A defendant may not complain about
invited error. See, e.g., United States v.
Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000). Because Brown
invited the error, he may not now complain of the error on
Brown contends that the district court failed to give a
special unanimity instruction with respect to the possession
with intent to distribute PCP charge. Brown contends that
jurors may have relied on different testimonial and physical
evidence to conclude that he was guilty on that count. He
claims that the jurors' reliance on different facts to
support his conviction violates the Sixth Amendment. Brown
did not raise this argument in the district court. Therefore,
our review is for plain error. We need not dally on this
argument. Because there is no precedent of the Supreme Court
or this court requiring a district court to give a special
unanimity instruction sua sponte in circumstances like those
in this case, the district court's failure to do so
cannot constitute plain error. See United States v.
Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008). Indeed, in
Hurt, this court held that "the trial
court's failure to give a special unanimity instruction
sua sponte was not plain error, " and Brown
makes no argument that would distinguish his case from
Hurt's. Id. at 1352. As a result, Brown's
argument is unavailing.
Brown contends that the burglary instruction was inadequate.
The crime of burglary requires proof that the accused person
entered the dwelling of another with the intent to commit an
identified offense. See D.C. Code § 22-801(a).
The district court instructed the jury that it must find that
"the defendant intended to use Mr. Clifton's
apartment as a place to possess and store narcotics."
Trial Tr. 31 (Mar. 17, 2015). The district court further
explained that Brown must have "intended to commit a
crime" on the premises. Id. Brown contends that
instruction was insufficient because it did not identify the
narcotics as unlawful narcotics. We disagree. In context, the
burglary instruction plainly referred to illegal drugs. Any
rational juror would have easily understood that the burglary
charge related to Brown's allegedly entering
Clifton's apartment with the intent to store illegal
argues that the district court, in sentencing Brown,
incorrectly attributed 100 to 400 grams of PCP to him. But
Brown is simply mistaken about the district court's
factual finding. Brown was not sentenced for possessing more
than 100 grams of PCP. He was sentenced for possessing 76.6
grams. The probation office determined that "Mr. Brown
is accountable for 76.6 grams of PCP resulting in a base
offense level of 20." At sentencing, the district court
said that it was adopting the probation office's finding
of 76.6 grams. We further know that the district court
adopted the probation office's finding because a finding
that Brown possessed 100 or more grams would have resulted in
a base offense level of 24. A finding that he possessed 76.6
grams would mean a base offense level of 20. The district
court calculated Brown's base offense level to be 20.
Boston argues that there was insufficient evidence to convict
him of possession with intent to distribute PCP.
reviewing sufficiency claims, we "accept the jury's
guilty verdict" if "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Andrews,
532 F.3d 900, 903 n.1 (D.C. Cir. 2008) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)) (internal
quotation marks omitted). We view the evidence in the light
most favorable to the government. See id. at 904
was not found with PCP on his person, but rather near illegal
drugs inside of Conovia Eddie's apartment. But the
evidence tying Boston to the PCP was substantial. First, a
key to Eddie's apartment was found on Boston, although he
did not live there. Possession "of a key" may be
"sufficient to establish constructive possession."
United States v. Dingle, 114 F.3d 307, 311 (D.C.
Cir. 1997). Second, Boston's presence inside the
apartment was consistent with Little Mexico's method of
operation of using others' apartments as trap houses.
Third, the officers had to use a battering ram for roughly a
minute to gain access to the apartment when they were not
admitted after their knock and announce. See Trial
Tr. 107 (Mar. 3, 2015 a.m.). A reasonable jury could have
considered that to be evasive conduct on Boston's part
indicating constructive possession of the contraband found
inside the apartment. See United States v. Dorman,
860 F.3d 675, 680 (D.C. Cir. 2017). Fourth, the officers
testified at trial that they smelled PCP coming from the
bathroom. Boston was standing near the bathroom at the moment
that the police entered, and the toilet had been recently
flushed. Fifth, a vial containing PCP residue was found in
the apartment and had Boston's left palm print on it.
Sixth, a woman named Monique Mathis testified at trial that
Boston sold PCP in Woodberry Village.
all of the evidence in the light most favorable to the
government, a rational jury could conclude that Boston
possessed PCP and, using Eddie's apartment as a base of
operations, intended to distribute PCP.
turn to Ira Adona's appeal. The only defendant-appellant
to plead guilty, Adona raises a single challenge to his
108-month federal prison sentence. In his view, the district
court should have sentenced him concurrently with, rather
than consecutively to, a D.C. Superior Court sentence that
stemmed from his federal guilty plea. To reach that argument,
we first must determine whether Adona waived his right to
this appeal. We conclude that the appeal is not barred and
that the district court plainly erred in its
consecutive-sentencing analysis. We therefore vacate
Adona's sentence and remand for resentencing.
government contends that Adona's sentence is not subject
to appeal because his plea agreement waived his right to
appeal his sentence except in specified circumstances. Like
all other courts of appeals, our circuit holds that a
defendant "may waive his right to appeal his sentence as
long as his decision is knowing, intelligent, and
voluntary." United States v. Guillen, 561 F.3d
527, 529 (D.C. Cir. 2009). Adona's plea agreement, which
he signed in April 2014, stated:
Your client agrees to waive the right to appeal the sentence
in this case, . . . and the manner in which the sentence was
determined, except to the extent the Court sentences your
client above the statutory maximum or guidelines range
determined by the Court, in which case your client would have
the right to appeal the illegal sentence or above-guidelines
sentence, but not to raise on appeal other issues regarding
Agreement 7. Adona's sentence did not qualify under
either of the specified exceptions: it was not above either
the statutory maximum or the Guidelines range determined by
the court. Accordingly, were we to look only at the written
plea agreement, that would end the matter, and the appeal
would be barred. See United States v. Hunt, 843 F.3d
1022, 1027 (D.C. Cir. 2016) (noting that we "ordinarily
dismiss an appeal falling within the scope of [an appeal]
although we start with the text of the plea agreement, we
cannot end there: our duty to ensure that an appeal waiver is
knowing, intelligent, and voluntary requires us to examine
also the colloquy with the judge during which Adona entered
his guilty plea. See, e.g., Hunt, 843 F.3d
at 1028-29; United States v. Kaufman, 791 F.3d 86,
88 (D.C. Cir. 2015); United States v. Godoy, 706
F.3d 493, 495 (D.C. Cir. 2013). Such plea colloquies are
required by Federal Rule of Criminal Procedure 11(b), and aim
"to dispel any misconceptions that the defendant may
have about his likely sentence" and to correct or
clarify any "erroneous information given by the
defendant's attorney." United States v.
Horne, 987 F.2d 833, 838 (D.C. Cir. 1993) (internal
quotation marks omitted). The Supreme Court has admonished
that Rule 11's "procedural safeguards serve
important constitutional interests in guarding against
inadvertent and ignorant waivers of constitutional
rights." United States v. Vonn, 535 U.S. 55, 67
(2002). Accordingly, we have instructed that "courts
conducting plea colloquies must scrupulously adhere to the
obligations of Rule 11." United States v.
Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015).
relevant to this appeal, Rule 11(b) instructs a trial court
to "inform the defendant of, and determine that the
defendant understands, . . . the terms of any plea-agreement
provision waiving the right to appeal or to collaterally
attack the sentence" before accepting a guilty plea.
Fed. R. Crim. P. 11(b)(1)(N). In prior cases, we have
assiduously assured compliance with this rule. Noting that
"[c]riminal defendants need to be able to trust the oral
pronouncements of district court judges, " we have
scrutinized Rule 11 colloquies to ensure that district courts
accurately explain the scope of defendants' appeal
waivers. Godoy, 706 F.3d at 495 (quoting United
States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004)
(internal quotation marks omitted)). Specifically, we have
examined whether "the district court mischaracterized
the meaning of the waiver in a fundamental way."
Id. If so, "the district court's oral
pronouncement controls, " and the "appeal is not
barred." Id. at 496; see Hunt, 843
F.3d at 1028-29; Kaufman, 791 F.3d at 88; United
States v. Fareri, 712 F.3d 593, 594-95 (D.C. Cir. 2013).
focus our analysis on what the district court told Adona
during the plea colloquy. When explaining to Adona the rights
that his guilty plea would waive, the district court stated:
Now, with regard to certain circumstances, you may even have
an opportunity, the right to appeal the sentence of this
court on the grounds of reasonableness. Do you understand
Plea Hearing Tr. 10 (Nov. 5, 2014). Adona answered in the
court's statement described a different right to appeal
than that contained in the written appeal waiver. "Taken
for its plain meaning - which is how criminal defendants
should be entitled to take the statements of district court
judges, " Godoy, 706 F.3d at 495 - the district
court's statement suggested to Adona that he could appeal
a sentence he thought unreasonable. Because "the
district court mischaracterized the meaning of the waiver in
a fundamental way, " "the district court's oral
pronouncement controls, " and the "appeal is not
barred." Id. at 495-96.
district court's statement is not saved by its
conditional nature. The court's use of "may"
was hardly clarifying because "may" can mean
"can" as well as "might." See
Black's Law Dictionary 1127 (10th ed. 2014). Nor is the
statement saved by the "with regard to certain
circumstances" language, which was unaccompanied by any
description of what those "certain circumstances"
were or were not. See Kaufman, 791 F.3d at 88
(vitiating plea waiver where the court initially told the
defendant that he "would still have the right to appeal
the sentence if [he] believe[d] the sentence is illegal,
" and later told him that he "might have the right
to appeal, under some circumstances, if he did not
'like' the sentence"); cf. Fareri, 712
F.3d at 594 (vitiating appeal waiver where the district court
declared, without further explanation, that the defendant
"probably retain[ed] the right" to appeal certain
sentences). By leaving those circumstances unexplained, the
district court failed to "inform the defendant of . . .
the terms of any plea-agreement provision waiving the right
to appeal, " as Rule 11(b) requires.
cannot uphold the waiver on the grounds that
"reasonableness" is a "legal term of art"
in the Sentencing Guidelines context. See United States
v. Ingram, 721 F.3d 35, 43 (2d Cir. 2013) (Calabresi,
J., concurring). In assessing the adequacy of plea
colloquies, we do not assume familiarity with criminal-law
argot. Rather, we ask how a defendant like Adona (who left
school after completing eleventh grade, Adona Plea Hearing
Tr. 6) would understand the district court's
pronouncement. See Godoy, 706 F.3d at 495. That is
why, in Godoy, we found that the mention of a right
to appeal an "illegal" sentence was misleading,
even though the court's statement was technically
accurate considering that "illegal sentence" is a
lawyerly term of art. Here, likewise, we do not pause to
parse the precise legal meaning of
"reasonableness." Rather, we note that Adona surely
thinks his sentence unreasonable, and that his belief is not
outside the common meaning of that word.
conclusion that the district court's plea colloquy was
deficient does not end our analysis. Notwithstanding the
district court's misstatement, the government contends
that Adona's counsel "clarified any ambiguity"
in the plea colloquy. U.S. Br. 65 n.27. To assess this claim,
we turn to Adona's counsel's statement, which was as
And I've advised Mr. Adona of what Your Honor said to him
in open court prior to this, that Your Honor . . . would
consider the advisory guidelines, but your inclination was
that that - the court would probably depart upward and would
state the reasons for that. I've explained to Mr. Adona,
and I think Your Honor just went over briefly with him
earlier, that under the plea agreement he retains the right
to appeal that decision and - if Your Honor does do that.
Plea Hearing Tr. 14.
not decide whether or under what circumstances a statement by
defense counsel may cure a district court's
mischaracterization of a plea waiver because counsel's
statement did not do so in this case. Contrary to the
government's contention, Adona's counsel did not
state "that Adona would retain the right to appeal
only if the district court sentenced him to an
above-guidelines sentence." U.S. Br. 65 n.27 (emphasis
added). Instead, Adona's counsel merely told him that he
retained the right to appeal an above-Guidelines sentence,
without suggesting that was the only category of sentence he
could appeal. Indeed, that was not the only category
of sentence he could appeal, even under the written plea
agreement - which permitted him also to appeal a sentence
"above the statutory maximum." Plea Agreement 7.
Accordingly, because counsel's statement made no effort
to mark the metes and bounds of appealable sentences, it did
nothing to inform Adona of the true scope of his appeal
the government say anything to clarify or correct the record
- despite our recent admonition that "the United States
Attorney's Office would be well advised to develop
instructions and training for its attorneys to make it part
of their routine practice to help ensure that district courts
fulfill each of the requirements of Rule 11 . . . when a
defendant enters a plea." Shemirani, 802 F.3d
at 3. Had the government immediately corrected the record, it
could have preserved its appeal waiver and obviated the need
for the past several pages of this opinion. Because it did
not, we now proceed to addressing the merits of Adona's
raises a number of arguments about the district court's
decision to sentence him consecutively to, rather than
concurrently with, his Superior Court sentence. Only one of
them, which concerns the district court's failure to take
into account Section 5G1.3(b) of the United States Sentencing
Guidelines, has merit. Because Adona failed to assert this
argument in the district court, we review it for plain error
only. United States v. Andrews, 532 F.3d 900, 908
(D.C. Cir. 2008). Under that standard, "[t]here must be
(1) error, (2) that is plain, and (3) that affect[s]
substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Id. (quoting Johnson
v. United States, 520 U.S. 461, 467 (1997)); see
United States v. Olano, 507 U.S. 725, 731-36 (1993).
district court accepted Adona's plea agreement in
November 2014. As part of his guilty plea, Adona admitted to
conspiring to distribute and possess PCP, in violation of 21
U.S.C. §§ 841, 846. He proffered that he
"knowingly and intentionally distributed PCP in vials
and cigarette 'dippers, '" that he "kept,
stored, shared, and maintained firearms" within
Woodberry Village, and that he undertook these activities in
conspiracy with his five co-defendants. Plea Agreement 14.
agreement also required Adona to plead guilty to a D.C.
Superior Court charge of attempted assault with a dangerous
weapon, in violation of 22 D.C. Code §§ 402, 1803.
That charge stemmed from Adona's shooting of Karl