USA v. Mark Pinder

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 1, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-15865
Non-Argument Calendar
________________________
D. C. Docket No. 09-80063-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK PINDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 1, 2010)
Before BLACK, HULL and MARTIN, Circuit Judges.
PER CURIAM:

-- 1 of 3 --

Mark Pinder appeals his 144-month sentence after pleading guilty to
conspiracy to import at least 5 kilograms of cocaine in violation of 21 U.S.C. § 963.
Pinder claims his sentence is unreasonable because the district court used his
statements regarding other drug trafficking schemes to deny his request for a
sentence below the Guideline range. Specifically, Pinder claims he assisted the
Government by providing information used by the Government to object to the
presentence investigation report (PSI) for Pinder’s codefendant, Parson Exana.
After review, we affirm Pinder’s sentence.1
To encourage cooperation with the government, Section 1B1.8 of the
Guidelines provides:
Where a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others, and as
part of that cooperation agreement the government agrees that
self-incriminating information provided pursuant to the agreement will
not be used against the defendant, then such information shall not be
used in determining the applicable guideline range, except to the
extent provided in the agreement.
U.S.S.G. § 1B1.8(a). The Guideline applies only to the provision of information
concerning the unlawful activities of others, not to “an agreement by the defendant
simply to detail the extent of his own unlawful activities.” U.S.S.G. § 1B1.8
We review a final sentence imposed by the district court for reasonableness. United1
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). Reasonableness review is akin to the
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 4 (2007). Under the
abuse-of-discretion standard, we reverse only if the district court’s ruling constitutes a clear error
of judgment. United States v. Frazer, 387 F.3d 1244, 1259 (11th Cir. 2004).
2

-- 2 of 3 --

comment. (n.6). Additionally, “‘information post-dating the agreement and
obtained from independent sources is not barred.’” United States v. Pham, 463
F.3d 1239, 1243-44 (11th Cir. 2006) (quoting United States v. Baird, 218 F.3d 221,
231 (3d Cir.2000)).
We conclude the district court did not err by relying on Pinder’s previous
drug smuggling experience to deny his request for a downward variance. Although
U.S.S.G. § 1B1.8 does prohibit the district court from relying on information
provided to the Government as part of a cooperation agreement, Pinder has failed
to identify any cooperation agreement with the Government. The record lacks any
mention of such an agreement, and instead shows the Government learned of
Pinder’s prior drug smuggling trips from taped conversations during Pinder’s
commission of the offense. See Pham, 463 F.3d at 1244 (“[S]o long as the
information is obtained from independent sources or separately gleaned from
codefendants, it may be used at sentencing without violating § 1B1.8.”). Further,
the district court relied on factual allegations in Pinder’s PSI, which Pinder failed to
object to and thus admitted for sentencing purposes. See United States v. Wade,
458 F.3d 1272, 1277 (11th Cir. 2006). Accordingly, we affirm Pinder’s sentence.
AFFIRMED.
3

-- 3 of 3 --