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Full Opinion
USCA11 Case: 23-13519 Document: 50-1 Date Filed: 09/30/2025 Page: 1 of 20
NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13519
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
PlaintiïŹ-Appellee,
versus
MARCUS D. FLINTROY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:23-cr-00008-MCR-1
____________________
Before NEWSOM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
A jury convicted Marcus Flintroy of federal drug and firearm
crimes, and he was sentenced to thirty-five years in prison. Flintroy
now appeals his conviction and sentence on six grounds. He
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2 Opinion of the Court 23-13519
contends that: (1) the government acted outrageously while inves-
tigating his case; (2) the government committed a Brady v. Mary-
land, 373 U.S. 83 (1963), violation by withholding information
about a confidential informant; (3) the governmentâs decision not
to call the informant at trial violated his rights under the Confron-
tation Clause; (4) the district court erred by giving an âaiding and
abettingâ jury instruction; (5) the district court erred by refusing to
grant him a sentence reduction for accepting responsibility; and
(6) his trial counsel rendered ineffective assistance. After careful
consideration, we affirm.
FACTUAL BACKGROUND
In late 2022, the Drug Enforcement Administration began
investigating Marcus Flintroy for drug trafficking. The Administra-
tion arranged for a confidential informant to make two controlled
purchases of fentanyl from Flintroy. Following standard proce-
dure, the Administration searched the confidential informant be-
fore and after the transactions, outfitted him with a recording de-
vice, and monitored him while he met with Flintroy. The confi-
dential informant returned with 28.3 grams of fentanyl after the
first transaction, and 69.4 grams of fentanyl after the second.
The Administration allowed the confidential informant to
drive to meet Flintroy despite knowing that he did not have a valid
driverâs license. After the first controlled purchase, the Administra-
tion also learned that the confidential informant had a state warrant
out for his arrest. But the Administration continued to employ the
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23-13519 Opinion of the Court 3
confidential informant to interact with Flintroy while itâunsuc-
cessfullyâattempted to have the warrant recalled.
In early 2023, law enforcement observed Flintroy driving an
improperly tagged car without a driverâs license. They followed
Flintroy as he pulled into a gas station and parked. After the car
parked, an unidentified man exited another vehicle and entered the
passenger side of Flintroyâs car. Suspecting that a drug sale was in
progress, a law enforcement officer pulled behind Flintroyâs car
and activated his emergency lights. Flintroy immediately at-
tempted to flee, crashing his car into two undercover police vehi-
cles that had moved in to stop his escape. Both Flintroy and his
passenger took off running. While the passenger made it back to
his own vehicle and escaped, law enforcement found and arrested
Flintroy.
The Administration searched Flintroyâs abandoned car and
found 99.9 grams of fentanyl, a loaded AR rifle, a loaded handgun
with an extended magazine, and 182 rounds of ammunition. As a
felon, Flintroy could not legally possess a firearm.
PROCEDURAL HISTORY
Flintroy was charged (by superseding indictment) with five
counts: two counts of distributing fentanyl, one count of pos-
1
sessing fentanyl with intent to distribute, one count of possessing
a firearm in furtherance of drug trafficking, and one count of
1
This count also included an aiding and abetting allegation under 18 U.S.C.
section 2.
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4 Opinion of the Court 23-13519
possessing a firearm as a felon. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(vi), 841(b)(1)(C); 18 U.S.C. §§ 922(g)(1), 924(a)(8),
924(c)(1)(A)(i).
Pretrial Proceedings
A few weeks before trial, Flintroy submitted a pro se letter
requesting the appointment of new counsel. He argued that his
trial counsel did not have his best interests at heart and was not
putting up a defense. The district court held a hearing on the letter,
but Flintroy ultimately stated that he wished to proceed with his
appointed attorney.
A few days before trial was scheduled to start, the govern-
ment filed a trial brief and a list of proposed jury instructions. That
list included the pattern jury instruction on aiding and abetting for
the possession-of-fentanyl-with-intent-to-distribute count. Two
days later, the district court held a change of plea hearing on the
felon-in-possession-of-a-firearm count. But at the hearing Flintroy
decided not to change his plea. Instead, Flintroy asked for the hear-
ing to be treated as a pretrial conference and alerted the district
court that he recently discovered the confidential informant in-
volved in his case had a pending arrest warrant when the govern-
ment had the informant buy fentanyl from Flintroy. Flintroy also
learned that the government allowed the confidential informant to
drive without a valid driverâs license to and from the controlled
purchases. Flintroyâs counsel explained that Flintroy told him the
confidential informantâs âstreet name,â and from that counsel de-
duced the informantâs real identity through some âquick computer
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23-13519 Opinion of the Court 5
research.â Flintroy alleged that the government never provided the
confidential informantâs name in its pretrial disclosures.
The government contested that assertion and stated that it
did not intend to call the confidential informant as a witness at trial.
Further, the government argued Flintroy had long been aware of
the confidential informantâs identity. It provided a screenshot of
one of Flintroyâs text messages, where he identified the confidential
informant by his legal name as the person who made the controlled
purchases. Flintroy requested a trial continuance, which the dis-
trict court denied. Still, the district court gave both sides a day to
brief the issue. After reviewing that briefing, the district court con-
tinued the trial to let Flintroy file a motion to dismiss the supersed-
ing indictment.
Flintroy moved to dismiss the superseding indictment. He
argued that the government had acted outrageously by (1) using a
confidential informant who had an outstanding arrest warrant, and
(2) allowing that informant to drive to make the controlled pur-
chase without a valid license. Flintroy acknowledged that his mo-
tion may not be timely since the pretrial motion deadline passed,
but he contended the motion should be accepted because the trial
had been continued.
The district court denied Flintroyâs motion to dismiss the su-
perseding indictment for two reasons. First, the motion was un-
timely because the pretrial motion deadline had passed, and no ex-
tension was requested. The district court determined that Flintroy
âwas long aware of the identityâ of the confidential informant, and
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6 Opinion of the Court 23-13519
there was no reason the motion could not have been raised earlier.
Second, the district court found that, timeliness aside, the alleged
government conduct was not so outrageous as to warrant dismis-
sal. The district court reasoned that the alleged unlawful conduct
did not violate Flintroyâs constitutional rights or impact his willing-
ness to sell fentanyl.
Trial
Flintroy objected before trial, arguing that the government
committed a Brady violation by failing to turn over information
about the confidential informant. The district court overruled
Flintroyâs objection, and the case proceeded to a two-day trial. The
government called nine witnesses: seven law enforcement officers
who had been involved in the investigation and two chemical ex-
perts. Neither the government nor Flintroy called the confidential
informant as a witness. One of the governmentâs witnesses testi-
fied about the confidential informant, explaining his involvement,
that he was paid, that he had an active warrant out for his arrest,
and that he was permitted to drive without a valid driverâs license.
Flintroy did not testify.
On the second day of trial, the district court held a charge
conference. Flintroy objected to the inclusion of an âaiding and
abettingâ instruction for the possession-of-fentanyl-with-intent-to-
distribute count, but the district court overruled the objection and
gave the instruction. The jury convicted Flintroy on all charges.
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23-13519 Opinion of the Court 7
Sentence Proceeding
The probation office prepared a presentence investigation
report, calculating Flintroyâs offense level at thirty-seven and his
criminal history category at six. This set Flintroyâs guideline sen-
tence range between 420 months and life imprisonment. The re-
port did not include a reduction for accepting responsibility.
Flintroy objected to the report, arguing that he should receive an
offense level reduction for accepting responsibility. The district
2
court overruled his objection because he took his case to trial.
Flintroy spoke, stating that the district court had been âde-
prived of the right to be fair and impartialâ because aspects of his
case were not presented at trial. The district court adjudicated
Flintroy guilty on all counts, incorporated the presentence investi-
gation report into his sentence, and imposed a bottom of the guide-
lines sentence of 420 monthsâ imprisonment followed by eight
years of supervised release. Flintroy appeals his convictions and
sentence.
DISCUSSION
Flintroy raises six arguments on appeal. First, he contends
that the district court should have dismissed the superseding indict-
ment because the government acted outrageously while investigat-
ing his case. Second, he asserts that the government committed a
Brady violation by withholding information about the confidential
2
The district court did not explicitly overrule the objection, but it implicitly
overruled it by declining to reduce Flintroyâs guideline range.
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8 Opinion of the Court 23-13519
informant. Third, he argues that the governmentâs decision not to
call the informant at trial violated his rights under the Confronta-
tion Clause. Fourth, he contends that the district court erred by
giving an âaiding and abettingâ jury instruction. Fifth, he argues
that the district court erred by refusing to grant him a sentence re-
duction for accepting responsibility. And sixth, while he asserts an
ineffective-assistance-of-counsel claim, he asks that we decline to
review it at this time. We address each of his arguments in turn.
Outrageous Government Conduct
We review de novo the denial of a motion to dismiss an in-
dictment based on claims of outrageous government conduct.
United States v. Castaneda, 997 F.3d 1318, 1325 (11th Cir. 2021). In
doing so, we examine the district courtâs fact-findings for clear er-
ror. Id. âClear error arises when our review of the record leaves
us with the definite and firm conviction that a mistake has been
committed.â United States v. Gbenedio, 95 F.4th 1319, 1328 (11th Cir.
2024) (citation and internal quotation marks omitted).
The outrageous government conduct defense âfocuses on
the tactics employed by law enforcement officials to obtain a con-
viction for conduct beyond the defendantâs predisposition.â United
States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998). It presumes
that if the government uses law enforcement techniques that are
shocking and fundamentally unfair, then it should not be permitted
to obtain a conviction from those techniques. See Castaneda, 997
F.3d at 1324 (citation omitted).
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23-13519 Opinion of the Court 9
To show outrageous government conduct, a defendant
must demonstrate that the governmentâs techniques violated âfun-
damental fairnessâ to the point that they were âshocking to the uni-
versal sense of justice, mandated by the Due Process Clause of the
Fifth Amendment.â United States v. Cannon, 987 F.3d 924, 941 (11th
Cir. 2021); see also United States v. Ciszkowski, 492 F.3d 1264, 1270
(11th Cir. 2007). Further, âthe actionable government misconduct
must relate to the defendantâs underlying or charged criminal acts.â
United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011).
Whether government conduct is outrageous âturns upon the total-
ity of the circumstances with no single factor controlling,â and the
defense âcan only be invoked in the rarest and most outrageous
circumstances.â United States v. Haimowitz, 725 F.2d 1561, 1577
(11th Cir. 1984) (citation omitted). Neither we, nor the Supreme
Court, have ever found the outrageous government conduct de-
fense to apply, and we have never barred a prosecution based on
it. Castaneda, 997 F.3d at 1324.
Here, the district court did not err by denying Flintroyâs mo-
tion to dismiss the superseding indictment based on outrageous
government conduct. To start, the district court based its ruling
on two grounds: first, timeliness, and second, the merits. Flintroy
only challenges the second ground on appeal. But âto obtain re-
versal of a district court judgment that is based on multiple, inde-
pendent grounds, an appellant must convince us that every stated
ground for the judgment against him is incorrect.â Sapuppo v. All-
state Floridian Ins., 739 F.3d 678, 680 (11th Cir. 2014). Because
Flintroy does not challenge the district courtâs conclusion that his
USCA11 Case: 23-13519 Document: 50-1 Date Filed: 09/30/2025 Page: 10 of 20
10 Opinion of the Court 23-13519
motion was untimely, âhe is deemed to have abandoned any chal-
lenge of that ground, and it follows that the judgment is due to be
affirmed.â Id.
Even considering the merits, the governmentâs conduct in
Flintroyâs case was not âso outrageous that it [was] fundamentally
unfair.â Ciszkowski, 492 F.3d at 1270. Flintroy argues the govern-
ment acted outrageously by (1) using a confidential informant that
had an outstanding arrest warrant, and (2) allowing the informant
to drive without a valid driverâs license. But neither of these ac-
tions affected Flintroyâs Fifth Amendment due process rights, or his
predisposition to sell fentanyl. See Jayyousi, 657 F.3d at 1111; Can-
non, 987 F.3d at 942 (âMerely presenting defendants with a non-
unique opportunity to commit a crime, of which they are more
than willing to take advantage, does not amount to outrageous
government conduct.â). Further, the governmentâs conduct was
not so âshocking to the universal sense of justiceâ as to be outra-
geous. Cannon, 987 F.3d at 941. While the government chose to
use the confidential informant, it was working to have the inform-
antâs arrest warrant recalled. And although the government al-
lowed the confidential informant to drive a short distance to meet
Flintroy, it closely watched him as he did so.
In short, Flintroy has not shown that the district court erred
by denying his motion to dismiss the superseding indictment based
on his allegations of outrageous government conduct.
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23-13519 Opinion of the Court 11
Brady Violation
Flintroyâs second argument on appeal is that the govern-
ment committed a Brady violation by failing to timely disclose in-
formation about the confidential informant. We review allega-
tions of a Brady violation de novo, placing the burden on the de-
fendant to show the required elements. United States v. Melgen, 967
F.3d 1250, 1264 (11th Cir. 2020).
The Supreme Court established in Brady that âthe suppres-
sion by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.â 373 U.S. at 87. To show a Brady violation, a
defendant must demonstrate that: (1) the government possessed
evidence favorable to him; (2) he did not possess the evidence, and
could not have obtained it with reasonable diligence; (3) the gov-
ernment suppressed the favorable evidence; and (4) if the evidence
had been disclosed, there is a reasonable probability that the out-
come of the trial would have been different. See United States v.
Stahlman, 934 F.3d 1199, 1229 (11th Cir. 2019).
Flintroy has not shown either the second or fourth required
elements. First, the record is clear that Flintroy knew the confiden-
tial informantâs identity and could have obtained the other infor-
mation about him with reasonable diligence. The government
produced a text message Flintroy sent several months before his
trial in which he identified the confidential informant (by his legal
name) as the person who had worked with the government against
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12 Opinion of the Court 23-13519
him. Later, Flintroyâs counsel explained that upon learning the
confidential informantâs âstreet nameâ from Flintroy, he deduced
the informantâs real identity through some âquick computer re-
search.â With the confidential informantâs identity in hand,
Flintroyâs counsel discovered that the informant had an outstand-
ing arrest warrant and suspended driverâs license at the time of the
controlled transactions. Because Flintroy knew the confidential in-
formantâs identity and could have discovered the other infor-
mation with reasonable diligence, he cannot show a Brady viola-
tion. Id.
Additionally, all the information about the confidential in-
formantâexcept his real identityâcame out at trial. The govern-
mentâs witnesses testified that they employed a confidential in-
formant who was subject to an arrest warrant and allowed him to
drive without a valid driverâs license. Despite this, the jury con-
victed Flintroy. Thus, even if the government had disclosed this
information to Flintroy weeks before trial, the outcome of the trial
would have remained the same. See id.
Altogether, the record does not support Flintroyâs Brady
3
claim.
3
To the extent that Flintroy attempts to add a Giglio claim for the first time on
appeal, that claim also fails. See Giglio v. United States, 405 U.S. 150 (1972). âIn
order to succeed on a Giglio challenge, the defendant must demonstrate that
the prosecutor âknowingly used perjured testimony, or failed to correct what
he subsequently learned was false testimony, and that the falsehood was ma-
terial.ââ United States v. Vallejo, 297 F.3d 1154, 1163â64 (11th Cir. 2002) (citation
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23-13519 Opinion of the Court 13
Confrontation Clause
Flintroy argues that the government violated the Sixth
Amendmentâs Confrontation Clause by declining to call the confi-
dential informant at trial. He insists that the confidential informant
was a key witness whom Flintroy should have been able to cross-
examine. Flintroy acknowledges that he did not make an objection
4
based on the Confrontation Clause below.
Constitutional objections raised for the first time on appeal
are reviewed only for plain error. United States v. Moriarty, 429 F.3d
1012, 1018-19 (11th Cir. 2005); see also United States v. Arbolaez, 450
F.3d 1283 (11th Cir. 2006) (reviewing a Confrontation Clause claim
first raised on appeal for plain error). Plain error occurs when
â(1) there was error, (2) that was plain, (3) that affected the defend-
antâs substantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of judicial proceedings.â United
States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (citation
omitted). Flintroy does not argue that the government presented any false
testimony at trial.
4
Flintroy argues that while he did not specifically raise the Confrontation
Clause below, his various objections throughout trial were collectively
enough to preserve the issue. We disagree. See United States v. Chau, 426 F.3d
1318, 1321â22 (11th Cir. 2005) (holding that the defendantâs hearsay objections
did not preserve the Confrontation Clause issue); see also United States v. Luci-
ano, 414 F.3d 174, 178 (1st Cir. 2005) (âAs Luciano did not raise this Confron-
tation Clause or Crawford-type claim in the proceedings belowâdefense ob-
jections were framed as hearsay and reliability objectionsâwe review for plain
error.â).
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14 Opinion of the Court 23-13519
omitted). âWhen neither [our] Court nor the Supreme Court have
resolved an issue, there can be no plain error in regard to that is-
sue.â United States v. Vereen, 920 F.3d 1300, 1312 (11th Cir. 2019).
5
Flintroy has not shown error, let alone plain error. The
Sixth Amendmentâs Confrontation Clause âprotects a defendantâs
right of cross-examination by limiting the prosecutionâs ability to
introduce statements made by people not in the courtroom.â
Smith v. Arizona, 602 U.S. 779, 783 (2024). It prohibits the introduc-
tion of âtestimonial statementsâ made by an absent witness unless
the witness is both unavailable to testify and the defendant previ-
ously had an opportunity to cross-examine the witness. Id. The
âConfrontation Clauseâs requirements apply only when the prose-
cution uses out-of-court statements for âthe truth of the matter as-
serted.ââ Id. (emphasis added) (citation omitted).
5
To the extent that Flintroy argues that he was denied compulsory service of
process because the confidential informant became a fugitive before trial, he
has not shown (1) that he ever attempted to subpoena the confidential inform-
ant, (2) that the government acted in bad faith, or (3) that the confidential in-
formantâs testimony would have been materially favorable to him. See Beach
v. Blackburn, 631 F.2d 1168, 1171 (5th Cir. 1980) (finding a defendantâs allega-
tion that he âwas denied the right to compulsory processâ without merit be-
cause he made no allegation âthat he sought to subpoenaâ the witness); United
States v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010) (âTo show a violation
of his due process rights or compulsory process rights, [appellant] is required
to show that there was a reasonable basis to believe that the testimony would
be material and favorable to him, and that the government had acted in bad
faith.â).
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23-13519 Opinion of the Court 15
Flintroy does not point to any âtestimonial statementâ made
by the confidential informant. Instead, he argues that his Confron-
tation Clause rights were violated because the government de-
6
clined to call the confidential informant as a witness. But the Con-
frontation Clause does not require the government to call a witness
if it does not introduce any testimonial statements from that wit-
ness. See id. Flintroy cites no authority to support his assertion that
the government was required to call the confidential informant as
a witness, and indeed, our precedent indicates that it was not. See
United States v. Kabbaby, 672 F.2d 857, 864 (11th Cir. 1982) (â[T]he
[g]overnment is under no duty to call witnesses even if they are
informers.â) (citation omitted); Shuler v. Wainwright, 491 F.2d 1213,
1224 (5th Cir. 1974) (âThe Confrontation Clause of the Sixth
Amendment applies to evidence actually disclosed at trial and a de-
fendant has no right to confront a âwitnessâ who provides no evi-
dence at trial.â).
In sum, Flintroy has not shown a violation of the Confron-
tation Clause.
6
To the extent that Flintroy attacks the credibility of the law enforcement of-
ficersâ testimony, or the sufficiency of the evidence underlying his conviction,
he has not properly raised those claims on appeal. Thus, we decline to con-
sider them. See United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000)
(declining to consider a sufficiency of the evidence claim not properly raised
on appeal).
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16 Opinion of the Court 23-13519
âAiding and Abettingâ Jury Instruction
Flintroy next argues that the district court erred when it
granted the governmentâs request for an âaiding and abettingâ jury
instruction as to the possession-of-fentanyl-with-intent-to-distrib-
ute count of the superseding indictment.
We review a district courtâs decision to give a jury instruc-
tion for abuse of discretion. Rubinstein v. Yehuda, 38 F.4th 982, 992
(11th Cir. 2022). âA district court abuses its discretion if it âapplies
an incorrect legal standard, follows improper procedures in making
the determination, or makes findings of fact that are clearly erro-
neous.ââ Gbenedio, 95 F.4th at 1327 (citation omitted). This is a
âdeferential standard of reviewâ and âwe will only reverse if we are
left with a substantial and eradicable doubt as to whether the jury
was properly guided in its deliberations.â United States v. Anderson,
1 F.4th 1244, 1260 (11th Cir. 2021) (citation omitted).
Flintroy asserts that the jury instruction was improper be-
cause aiding and abetting is a separate crime that was not charged
in the superseding indictment. He contends that its inclusion in the
jury instructions âconstituted undue surpriseâ and prejudicial harm
by restricting his ability to argue âthat there might have been an-
other person with, by or in charge of the drugs.â But Flintroyâs
contentions are belied by the record. The superseding indictment
did charge Flintroy with aiding and abetting under the possession-
of-fentanyl-with-intent-to-distribute count. See 18 U.S.C. § 2 (pe-
nalizing aiding and abetting the commission of a federal crime).
And the jury instruction was limited to that count.
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23-13519 Opinion of the Court 17
Nor could Flintroy have been unduly surprised by the in-
struction. The government first filed its proposed jury instruc-
tionsâwhich included the aiding and abetting instructionâmore
than a month before Flintroyâs trial. And at the charge conference,
Flintroy objected to the instructionâs inclusion, so he had both no-
tice and an opportunity to be heard on the issue. See Fed. R. Civ.
P. 51(b) (requiring a district court to inform parties of proposed jury
instructions before trial and allow the opportunity to object).
Thus, Flintroy has not shown that the district court abused its dis-
cretion by including the aiding and abetting jury instruction.
Acceptance of Responsibility Sentencing Reduction
Flintroy contends that the district court erred by denying his
request for a sentence reduction based on acceptance of responsi-
bility. The sentencing guidelines provide for a two-level reduction
in a defendantâs offense level if the defendant âclearly demonstrates
acceptance of responsibility for his offense.â U.S.S.G. § 3E1.1(a).
The reduction âis intended to reward those defendants who affirm-
atively acknowledge their crimes and express genuine remorse for
the harm caused by their actions.â United States v. Carroll, 6 F.3d
735, 740 (11th Cir. 1993).
âDenials of a sentenc[e] reduction for acceptance of respon-
sibilityâfindings entitled to âgreat deferenceââare reviewed for
clear error.â United States v. Smith, 22 F.4th 1236, 1242 (11th Cir.
2022) (citation omitted). We will not overturn a âdistrict courtâs
determination that a defendant is not entitled to acceptance of re-
sponsibilityâ unless âthe facts in the record clearly establish that
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18 Opinion of the Court 23-13519
[the] defendant has accepted personal responsibilityâ for his crimes.
United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
Flintroy essentially argues that he accepted responsibility by
almost pleading guilty to one of the charges. He asserts that the
âwithdrawal from his proposed guilty pleaâ was not his own doing
and was owed âto events far beyond his control involving claims of
[g]overnment misconduct and the advice of counsel.â Flintroy
points to the sentencing guideline commentary, which states that
in ârare situations a defendant may clearly demonstrate an ac-
ceptance of responsibility for his criminal conduct even though he
exercises his constitutional right to trial.â U.S.S.G. § 3E1.1,
cmt. n.2.
But Flintroyâs case is not one of the ârare situationsâ the
commentary is referring to. Id. Those are circumstances where,
for example, âa defendant goes to trial to assert and preserve issues
that do not relate to factual guilt.â Id. However, Flintroyâs trial
concerned his factual guilt, and thus, he was not entitled to the re-
duction. See id. (âThis adjustment is not intended to apply to a de-
fendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse.â).
Further, Flintroyâs canceled change-of-plea hearing involved
only one count of the superseding indictment, and the record does
not suggest that he ever came close to pleading guilty to any of the
other four counts. Instead, Flintroy chose to put the government
to its burden on all his charges at trial. Nor did he express any
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23-13519 Opinion of the Court 19
acceptance of responsibility at the sentence proceeding. Rather,
Flintroy told the district court that it was âdeprived of the right to
be fair and impartialâ because âcritical aspectsâ of his case were not
presented at trial. He asserted that the district court âonly saw one
side of the hand in this case,â and âdidnât get to see the other.â
Flintroy offered no remorse, instead maintaining that the district
court did not know what was âreally going onâ with his case.
In short, Flintroy has not shown that the district court
clearly erred by declining to reduce his sentence for acceptance of
responsibility.
Ineffective Assistance of Counsel
âWe will not generally consider claims of ineffective assis-
tance of counsel raised on direct appeal where the district court did
not entertain the claim nor develop a factual record.â United States
v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (citation omitted).
âThe preferred means for decidingâ these claims âis through a
28 U.S.C. [section] 2255 motion[,] âeven if the record contains some
indication of deficiencies in counselâs performance.ââ United States
v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (citation omitted).
Here, both parties argue that the record is not sufficiently
developed to consider Flintroyâs ineffective-assistance-of-counsel
claim on direct appeal. We agree. Thus, we decline to consider
Flintroyâs ineffective-assistance-of-counsel claim. See id. at 1329
(declining to consider ineffective-assistance-of-counsel claim on un-
developed record).
USCA11 Case: 23-13519 Document: 50-1 Date Filed: 09/30/2025 Page: 20 of 20
20 Opinion of the Court 23-13519
CONCLUSION
Because Flintroy has not shown any error requiring the re-
versal of his convictions or sentence, we affirm.
AFFIRMED.
Case Information
- Court
- 11th Cir.
- Decision Date
- September 30, 2025
- Status
- Precedential