[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11314 SEPTEMBER 13, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00121-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERENCE DEVON HAMILTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 13, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Terence Devon Hamilton appeals his 200-month sentence for distribution of
five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On
appeal, Hamilton argues that the government breached its plea agreement. He also
challenges his sentence on the grounds that the district court erred by engaging in
judicial fact-finding and that its downward departure was based on impermissible
factors and was unreasonable. For the reasons set forth more fully below, we
affirm.
By superseding indictment, Hamilton was charged with three counts of
distribution of five grams or more of a mixture containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). In exchange for Hamilton’s
agreement to plead guilty to one count of distribution of five grams or more of
cocaine base, the government agreed, in pertinent part, to recommend a sentence at
the “low end of the applicable guideline range” and, if Hamilton rendered
substantial assistance, the government agreed to file a motion for downward
departure “from the applicable sentencing guideline range” pursuant to U.S.S.G.
§ 5K1.1. The government filed a motion for downward departure, but did not
recommend a sentence at the low end of the applicable Guideline range. Although
the district court called upon Hamilton’s counsel to “call upon the government for
any more disclosures you think they should make consistent with your agreement,”
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Hamilton did not mention the government’s obligation to recommend a sentence at
the low end of the applicable Guideline range.
Hamilton objected to the calculation of his advisory Guideline range using
facts that were not based upon the conduct to which he pled guilty. In reliance
upon such facts, the probation officer assigned an offense level of 34 because
Hamilton was a career offender under U.S.S.G. § 4B1.1. After granting Hamilton
an acceptance of responsibility reduction, the district court calculated an advisory
Guideline range of 188 to 235 months’ imprisonment based on a base offense level
of 31 and criminal history category of VI.
Before announcing its sentence, the district court commented in regard to
Hamilton, who was 33 years’ old at the time of the hearing,
I would have no hesitancy . . . sentencing you when I look at this
record. It goes back prior to your 17 years old being in the cocaine
business. And it appears further that you really never — you have
been treated so lenient by the state court. . . . It was not much of a
deterrent.
The court further stated that Hamilton “seems contrite. But I know his record leads
to the inescapable conclusion that drugs and drug dealing have been his life’s
pursuit.” The district court then sentenced Hamilton to 200 months’ imprisonment,
noting that the sentence was brought about by the government’s § 5K1.1 motion
and its support of the motion with specifics as to Hamilton’s cooperation.
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I. Plea Agreement
Hamilton argues for the first time on appeal that the government breached its
plea agreement by failing to recommend a sentence at the low end of the applicable
Guideline range. The government responds that Hamilton invited any error
because he failed to inform the court of any alleged lapse when given the
opportunity to do so. Alternatively, the government argues that Hamilton’s failure
to raise the issue before the district court results in plain error review on appeal,
and that Hamilton cannot establish plain error.
We agree with the government that Hamilton’s failure to object on this basis
before the district court limits our review to plain error. United States v. Romano,
314 F.3d 1279, 1281 (11th Cir. 2002). However, we do not find the invited error
doctrine applicable in this case. “The doctrine of invited error is implicated when a
party induces or invites the district court into making an error.” United States v.
Stone, 139 F.3d 822, 838 (11th Cir. 1998). Here, the alleged error was not an error
committed by the district court, but one committed by the government. See United
States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998) (“But, as Proctor contends,
the AUSA [Assistant United States Attorney], not the court, violated the plea
agreement; the sentencing judge’s acts are not important to this issue.”).
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Under plain error review, there must be (1) an error, (2) that is plain, and
(3) that affects substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-
29 (11th Cir. 2005). If these three prongs are met, we may exercise our discretion
to notice this error if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id. at 1329. For an error to affect substantial rights, “in
most cases it means that the error must have been prejudicial: It must have affected
the outcome of the district court proceedings.” United States v. Olano, 507 U.S.
725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). The party seeking to
establish plain error has the burden of persuasion as to prejudice. See United States
v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).
To establish prejudice, the defendant must show a reasonable probability of a
different result. Id. Where the effect of an error on the district court’s sentence is
uncertain or indeterminate, the defendant cannot show prejudice. Id. at 1301.
Even if Hamilton can show an error that is plain, he cannot meet the third
prong of the plain error standard. Hamilton makes no arguments that the error
affected his substantial rights.1 Accordingly, he cannot meet his burden to
establish prejudice. See Rodriguez, 398 F.3d at 1299. Moreover, at best, the
record is unclear as to whether the district court would have imposed a different
1
To the extent Hamilton suggests that he need not show plain error, this argument is contrary
to precedent. Romano, 314 F.3d at 1281.
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sentence had the government recommended a sentence at the low end of the
applicable Guideline range, and, therefore, Hamilton could not show prejudice. Id.
at 1301. Therefore, the government’s failure to recommend a sentence at the low
end of the applicable Guideline range, if error, was not plain error.
II. Hamilton’s sentence
Recognizing that his argument is contrary to current precedent, Hamilton
argues that the district court erred in enhancing his sentence based on facts that
were not charged in the indictment, proved to a jury beyond a reasonable doubt,
part of his guilty plea, or admitted by him.2 Hamilton next argues that the district
court erred in granting the government’s motion for substantial assistance yet
sentencing him within the advisory Guideline range. He contends that the district
court’s downward departure was improperly based on his receipt of an acceptance
of responsibility adjustment and his criminal history, the lack of a departure was
unreasonable, and, because he “gets nothing” for his substantial assistance, his
sentence is unreasonable.
A constitutional challenge to a sentence is reviewed de novo. United States
v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005). We review Hamilton’s argument
that the district court relied upon non-assistance related factors for plain error
2
At sentencing, Hamilton did not contest the factual accuracy of the information in the
presentence investigation report.
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because Hamilton failed to raise this objection before the district court. Rodriguez,
398 F.3d at 1298. We cannot review Hamilton’s challenge to the reasonableness
of the district court’s downward departure. United States v. Winingear, 422 F.3d
1241, 1245 (11th Cir. 2005); United States v. Luiz, 102 F.3d 466, 468 (11th Cir.
1996) (citing United States v. Castellanos, 904 F.2d 1490, 1497 (11th Cir. 1990)).
However, we review the district court’s ultimate sentence for reasonableness.
Winingear, 422 F.3d at 1245.
The district court did not err in enhancing Hamilton’s sentence based on
prior convictions that were neither alleged in the indictment nor proved beyond a
reasonable doubt. Shelton, 400 F.3d at 1329. Nor did the district court err by
engaging in judicial fact-finding under the advisory Guidelines where it did not
impose a sentence beyond the statutory maximum authorized by Hamilton’s guilty
plea. United States v. Hunt, No. 05-11671, man. op. at 4-5 (11th Cir. Aug. 10,
2006); Rodriguez, 398 F.3d at 1300.
Reductions under § 5K1.1 must be based on factors relating to the
defendant’s substantial assistance. United States v. Crisp, No. 05-12304, slip op.
at 2949 (11th Cir. July 7, 2006). The district court’s explanation of its ultimate
sentence indicates that Hamilton’s substantial assistance was the reason that the
court sentenced him as low as 200 months. However, even if there is error,
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Hamilton makes no argument that the error affected his substantial rights and the
effect of any error on the district court’s sentence is, at best, uncertain.
Accordingly, Hamilton cannot meet his burden as to prejudice and, therefore,
cannot establish plain error. See Rodriguez, 398 F.3d at 1299, 1301.
The district court’s imposition of a sentence and our reasonableness inquiry
are guided by the factors outlined in 18 U.S.C. § 3553(a). United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005); Winingear, 422 F.3d at 1246. The § 3553(a)
factors take into account:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786. The burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors lies with the party
challenging the sentence. Id. at 788.
Hamilton cannot show that his sentence is unreasonable. Hamilton’s
substantial assistance alone does not make a sentence within the Guideline range
unreasonable as the district court must consider the 18 U.S.C. § 3553(a) factors in
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choosing a reasonable sentence. See id. at 786. Moreover, in light of Hamilton’s
extensive criminal history and the district court’s finding that prior punishment
failed to deter Hamilton, Hamilton’s 200-month sentence, which was less than half
of the 40-year (480-month) statutory maximum term of imprisonment under 21
U.S.C. § 841(b)(1)(B) and towards the lower end of the advisory Guideline range,
is reasonable.
In light of the foregoing, Hamilton’s sentence is
AFFIRMED.
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