[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14852

Non-Argument Calendar

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D.C. Docket No. 5:17-cr-00022-MTT-CHW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

DELMA GODDARD, 

a.k.a., Shug

a.k.a., Big Hxmie,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(September 3, 2020)

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Before MARTIN, ROSENBAUM, and ED CARNES, Circuit Judges.

PER CURIAM: 

After a four-day trial, a jury found Delma Goddard guilty of 23 crimes that

he committed during a string of drug and gun sales to a confidential informant. He

appeals his conviction and sentence, raising three issues. First, he contends that his 

trial counsel provided ineffective assistance. Second, he contends that the district 

court erred in not instructing the jury on the defense of entrapment. Finally, he 

contends that the district court clearly erred at sentencing when it found that he had 

been involved in a drug sale described in the presentence investigation report but 

not charged in the indictment.

I.

In 2017 Goddard was charged in a 16-defendant, 51-count indictment with

various drug and gun charges and related conspiracies. Goddard was named in 37

of those counts. The government later filed a 4-defendant, 27-count second 

superseding indictment, and Goddard was named in 26 of those counts. He was 

charged with: 1 count of conspiracy to possess with the intent to distribute 

controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and

(b)(1)(A), (B), and (C); 13 counts of distributing or possessing with the intent to 

distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), 

(B), or (C); 6 counts of possession of a firearm as a convicted felon, in violation of 

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18 U.S.C. § 922(g); and 6 counts of possession of a firearm in furtherance of a 

drug trafficking crime, in violation of 18 U.S.C. § 924(c). Goddard decided to go 

to trial, and the jury found him guilty of 23 counts.1

Goddard’s presentence investigation report calculated an advisory guidelines

range of 360 months to life imprisonment. It also determined that Goddard was 

subject to five separate and consecutive mandatory minimum sentences for his 

§ 924(c) convictions, totaling 105 years. The parties agreed at sentencing that this 

was the correct guidelines range and mandatory minimum sentence.

Goddard objected to only a single paragraph of the PSR: a paragraph

describing a controlled drug buy that had not been charged in the second 

superseding indictment. That paragraph said that two confidential informants went 

to buy crack cocaine from a third party, Goddard showed up and gave the third 

party the drugs, and then the informants bought those drugs. Goddard argued that, 

even though one of the confidential informants had testified at trial about that drug 

sale, the allegation was unsubstantiated. The district court overruled the objection 

and adopted the PSR. It considered the 18 U.S.C. § 3553(a) factors and sentenced 

Goddard to a total of 145 years imprisonment.

1 During trial, the government voluntarily dismissed three of the 26 counts, one each of 

the charges for drug distribution, possession of a firearm as a convicted felon, and possession of 

a firearm in furtherance of a drug trafficking crime.

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II.

Goddard first contends that his trial counsel was ineffective in two ways: (1)

for failing to move to suppress a pre-arrest statement he made to law enforcement 

agents, and (2) for failing to provide notice of intent to examine a government 

witness about a prior conviction, which prevented his counsel from impeaching the 

witness on the basis of that conviction. See Fed. R. Evid. 609.

“Generally, we do not address ineffective assistance claims on direct appeal, 

except in the rare instance when the record is sufficiently developed for us to do 

so.” United States v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006). This is not one 

of those rare instances.

Goddard did not raise an ineffective assistance of counsel claim before the 

district court on either of the grounds he now asserts. And because the record is 

not developed enough for us to review the merits of his arguments, we will not 

consider them in this direct appeal. See United States v. Perez-Tosta, 36 F.3d 

1552, 1563 (11th Cir. 1994) (stating that “a claim of ineffective assistance of 

counsel cannot be considered on direct appeal if the claims were not first raised 

before the district court and if there has been no opportunity to develop a record of 

evidence relevant to the merits of the claim”).

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III.

Goddard next contends that the district court erred by refusing to instruct the 

jury on the defense of entrapment. He argues that there was enough evidence to 

support an entrapment instruction because all of his sales of drugs and guns to the 

confidential informant started with the informant asking for those illegal goods. 

We review de novo a district court’s refusal to give an entrapment 

instruction. United States v. Dixon, 901 F.3d 1322, 1346–47 (11th Cir. 2018)

(recognizing that even if some of our decisions have “purported to review the 

question for an abuse of discretion,” it is clear that “[t]he correct standard of 

review is de novo”) (quotation marks omitted). A defendant who asserts the 

affirmative defense of entrapment is entitled to an instruction on it “whenever there 

is sufficient evidence from which a reasonable jury could find 

entrapment.” Mathews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883 (1988).

To prove entrapment, the defendant must establish two elements: (1) the 

government induced the crime, and (2) the defendant was not predisposed to 

commit it. Dixon, 901 F.3d at 1346. When seeking a jury instruction on 

entrapment, the “defendant bears the initial burden of production as to government 

inducement.” United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010)

(quoting United States v. Ryan, 289 F.3d 1339, 1344 (11th Cir. 2002)). He can

meet that burden by “produc[ing] any evidence sufficient to raise a jury issue that 

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the [g]overnment’s conduct created a substantial risk that the offense would be 

committed by a person other than one ready to commit it.” Dixon, 901 F.3d at 

1346. 

Though “this burden is light,” it is not weightless. Sistrunk, 622 F.3d at 

1333 (quoting United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995)). For 

example, it is not enough for the defendant to show that the government merely

initiated contact with the defendant, or that the government suggested a crime, 

solicited it, or provided the opportunity for committing it. Id. Instead, proving

government inducement requires showing that the government engaged in some 

sort of “persuasion or mild coercion,” such as both providing the opportunity and

exerting excessive pressure or manipulating the defendant’s non-criminal motive. 

Id. Persuasion or mild coercion can be shown by evidence that the defendant 

reacted unfavorably to the government’s attempted inducement, or “that several 

attempts at setting up an illicit deal had failed and on at least one occasion [the 

defendant] had directly refused to participate.” Id. (quoting Ryan, 289 F.3d at

1344).

Goddard cannot show government inducement. He points to no evidence 

that the government manipulated him, no evidence that it placed excessive pressure 

on him, and no evidence that he refused to participate in any of the controlled buys. 

Nor could he; Goddard accepted every one of the confidential informant’s offers to 

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buy illegal goods, from the first to the last. Goddard’s only argument that he was 

induced is that the government, through its confidential informant, initiated contact 

in each of the controlled buys. That is not enough. See Brown, 43 F.3d at 627 

(“[I]t is not entrapment for a Government agent to . . . offer, either directly or 

through an informer or other decoy, to engage in an unlawful transaction with a 

defendant.”) (quoting jury instruction). Goddard was not entitled to a jury 

instruction on the defense of entrapment.

IV.

Goddard contends that the district court clearly erred by accepting the PSR’s 

description of a drug sale that was not charged in the indictment. He argues that 

the record and testimony do not support the PSR’s description of his involvement 

in the sale of those drugs.

We review the district court’s factual findings about relevant conduct for 

sentencing only for clear error. United States v. Maddox, 803 F.3d 1215, 1220 

(11th Cir. 2015). It is well established that a district court in sentencing may 

consider uncharged conduct, and even conduct for which a defendant was 

acquitted, if it finds the government proved the conduct by a preponderance of the 

evidence. See United States v. Culver, 598 F.3d 740, 752 (11th Cir. 2010); United 

States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). And when the defendant 

challenges the factual basis of part of the PSR, the government bears the burden of 

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proving the disputed facts by a preponderance of the evidence. See United States 

v. White, 663 F.3d 1207, 1216 (11th Cir. 2011). The district court may base its

factfinding at sentencing on evidence presented at trial, undisputed statements in 

the PSR, and evidence presented at the sentence hearing. Id.

Here, the evidence presented at trial was more than sufficient for the district 

court to find by a preponderance of the evidence that Goddard participated in the 

disputed drug sale. The government’s confidential informant was the buyer in that 

sale, and he testified in detail about Goddard’s role in it. He testified that he was 

present when Goddard showed up to deliver drugs to a third party — drugs the 

informant then bought from the third party. The PSR relied on that testimony for 

its description of the sale, and although Goddard disputed it, he offered no 

evidence, either at trial or at sentencing, to contradict it. The district court did not 

clearly err in finding that Goddard took part in that drug sale.

AFFIRMED.

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