United States v. Damioun Cole

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16948 SEPT 08, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-20538-CR-CMA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMIOUN COLE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(September 8, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Damioun Cole appeals his 364-day sentence, which was imposed after he

pled guilty to knowingly engaging in and attempting to engage in a sexual act with
a female inmate at the Federal Detention Center (“FDC”) in Miami, Florida, in

violation of 18 U.S.C. § 2243(b). On appeal, Cole argues that the district court

violated United States v. Booker, 543 U.S. 220 (2005), by enhancing his offense

level for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and then applying the

Guidelines in a mandatory fashion.1 After careful review, we affirm.

Although Cole did not raise a Booker objection at the sentencing hearing, he

did preserve an Apprendi objection relating to the enhancement for obstruction of

justice when, at the sentencing hearing, he argued that the enhancement “would

take [the sentence] above the statutory maximum.” Cf. United States v. Dowling,

403 F.3d 1242, 1246 (11th Cir.) (finding that similar Apprendi objection was

sufficient to preserve Booker claims), cert. denied, 126 S. Ct. 462 (2005). Thus,

we review Cole’s preserved Booker claims de novo. See United States v. Cain,

433 F.3d 1345, 1347 (11th Cir. 2005); United States v. Candelario, 240 F.3d 1300,

1304 (11th Cir. 2001) (citations omitted).

Pursuant to Booker, “the Sixth Amendment right to trial by jury is violated

where under a mandatory guidelines system a sentence is increased because of an

1
Cole does not address the separate issues of whether a downward departure was warranted
or whether the sentence was reasonable under Booker. Accordingly, he has waived those claims.
Cf. United States v. Hembree, 381 F.3d 1109, 1110 (11th Cir. 2004) (prior to Booker, holding that
claims not raised on appeal, including claims based on Blakely v. Washington, 542 U.S. 296 (2004),
are deemed waived); United States v. Curtis, 380 F.3d 1308, 1310-11 (11th Cir. 2004) (same).

2
enhancement based on facts found by the judge that were neither admitted by the

defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.) (emphasis in original), cert. denied, 125 S. Ct. 2935 (2005). We

have held that there are two types of Booker errors: (1) constitutional error

resulting from enhancements based on judicial fact-finding, and (2)

non-constitutional statutory error resulting from mandatory application of the

Guidelines. See United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

Here, we can discern neither type of Booker error. Contrary to Cole’s

arguments, the district court explicitly stated that it was applying the Guidelines in

an advisory, and not mandatory, manner. See R3 at 50 (“Understanding that the

Guidelines are advisory and understanding what the statutory criteria are that I am

required to consult and apply under 35 U.S.C. § 3553(a)(1) through (7) . . . .”); id.

at 61 (“therefore the appropriate offense level for Mr. Cole under the advisory

Guidelines is a level 14 with a range of 15 to 21 months. I am mindful of the

statutory maximum, however, and I will not exceed that statutory maximum.”).

Moreover, the district court calculated the sentencing range consistent with United

States v. Crawford, 407 F.3d 1174 (11th Cir. 2005), and then stated that it had

considered all of the § 3553(a) factors and the 12-month statutory maximum before

imposing its sentence. Accordingly, the district court satisfied its obligations under

3
Booker, and there was no Booker error, of either a constitutional or statutory

variety.

We likewise are unpersuaded by Cole’s separate argument that, pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000), the obstruction-of-justice

enhancement impermissibly increased the penalty over the statutory maximum. In

short, because Cole’s sentence, which the district court imposed under an advisory

sentencing scheme, did not exceed the statutory maximum prescribed in 18 U.S.C.

§ 2243(b), there was no Apprendi violation. See United States v. Clay, 376 F.3d

1296, 1301 (11th Cir. 2004) (noting that “the constitutional rule of Apprendi does

not apply where the sentence imposed is not greater than the prescribed maximum

for the offense of conviction.”); cf. Rodriguez, 398 F.3d at 1297 (holding that,

post-Booker, a district court may continue to determine any enhancement when

applying the Guidelines as advisory).

AFFIRMED.