[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
THOMAS K. KAHN
No. 06-15593
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-60106-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ATASHA J. DILLON,
a.k.a. Juliet Atasha Dillon,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 26, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Atasha J. Dillon appeals her 70-month sentence for conspiracy to import
cocaine, in violation of 21 U.S.C. § 963 (2006). On appeal, Dillon challenges her
sentence on two grounds: (1) it was clear error for the district court to fail to award
her requested two-level minor role sentence reduction; and (2) her pre-United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), sentence was unreasonable
under the factors enumerated in 18 U.S.C. § 3553(a). We find Dillon’s arguments
to be without merit and affirm the district court’s sentence.
Appellant first argues that, in denying her a minor-role reduction, the district
court never made factual findings establishing the relevant conduct for which she
was found responsible, and this failure constituted clear error under our holding in
United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en
banc). Dillon did not object below to the district court’s failure to make factual
findings regarding her role in the relevant conduct, and therefore we review her
claim of error, raised for the first time on appeal, for plain error. See United States
v. Harness, 180 F.3d 1232, 1234 (11th Cir. 1999). To reverse under a “plain error”
standard, we must conclude that (1) there is an error; (2) the error is plain; and (3)
the error affects the defendant’s substantial rights in that it was prejudicial and not
harmless. United States v. Vance, 494 F.3d 985, 993 (11th Cir. 2007). We may
correct a forfeited error, but only if the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Munoz,
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430 F.3d 1357, 1375 (11th Cir. 2005) (internal quotations and citations omitted),
cert. denied, 126 S. Ct. 2305 (2006).
When determining whether the defendant is entitled to a two-level minor
role reduction, a district court first “must measure the defendant’s role against the
relevant conduct for which she was held accountable at sentencing . . . .” De
Varon, 175 F.3d at 945. Second, the court “may also measure the defendant’s role
against the other participants . . . in that relevant conduct.” Id. Where the district
court’s decision is supported by the record, and there are no unresolved factual
disputes, “a simple statement of the district court’s conclusion is sufficient.” Id. at
939. Accordingly, we have held that “a district court is not required to make any
specific findings other than the ultimate determination of the defendant’s role in
the offense.” Id. at 940.
In deciding that Dillon’s role precluded her from receiving a minor-role
reduction, the district court complied with the procedural requirements of De
Varon when it made the ultimate determination, based on facts admitted by Dillon,
that “she did exactly what [the other participants] . . . did: she imported the
cocaine,” and concluded, “I don’t think she meets the criteria for a minor role
reduction.” Because this determination was supported by the record, the district
court committed no error, plain or otherwise, by failing to make specific findings
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establishing her role in the relevant conduct since we do not require such findings
under De Varon.
Dillon next argues that the district court committed substantive error in
denying her a minor role reduction because her conduct was minor relative to the
scope of the conspiracy and in comparison to her coconspirators. Specifically, she
renews her objection to the presentence report and contends that the district court
overlooked the following facts: (1) she was the only one who had no prior
smuggling experience; (2) she was the only one who did not take the cruise, on
which they smuggled the cocaine, with the intent to smuggle cocaine; (3) she did
not learn of the importation scheme until she discovered she had been given
cocaine; and (4) she was the only one who gave a truthful statement to law
enforcement. Dillon asserts that this evidence established that she was less
culpable than her coconspirators, and therefore should have been granted a two-
level reduction.
A district court’s determination of a defendant’s role in the offense is
reviewed for clear error. United States v. Boyd, 291 F.3d 1274, 1277 (11th Cir.
2002). We have recognized that the district court enjoys considerable discretion in
making this factual determination, and that the defendant bears the burden of
proving a mitigating role in the offense by a preponderance of the evidence. De
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Varon, 175 F.3d at 938, 939. A defendant warrants a minor-role reduction if he is
“less culpable than most other participants, but [his] role could not be described as
minimal.” U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.5 (2007). However,
“a defendant is not automatically entitled to a minor role adjustment merely
because she was somewhat less culpable than the other discernable participants.”
De Varon, 175 F.3d at 944.
Given that Dillon engaged in exactly the same conduct in furtherance of the
conspiracy as her coconspirators, the district court’s conclusion that Dillon was not
less culpable than the other participants, and therefore was not a minor participant,
was not clearly erroneous. Accordingly, the district court did not err in denying
her motion for a minor role reduction.
Finally, Dillon argues that her sentence was unreasonable in light of the
record and the 18 U.S.C. § 3553(a) factors, in that her personal background, lack of
criminal history, and cooperation with authorities warranted a lesser sentence. She
also contends that she had been tricked and coerced into participating in the
conspiracy, and her “limited” participation rendered her sentence unreasonable.
In this procedurally unusual case, Dillon’s original 2004 sentence was
entered prior to the Supreme Court’s decision in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005), but was later vacated and reinstated under our decision
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in United States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), in order to perfect this
appeal. The purpose of the Phillips doctrine is to put a party back in the position
she would have been had ineffective assistance of counsel not deprived her of an
opportunity to file a timely appeal. See United States v. Parrish, 427 F.3d 1345,
1348 (11th Cir. 2005) (discussing the summary nature of Phillips sentence
reinstatement); McIver v. United States, 307 F.3d 1327, 1331 (11th Cir. 2002)
(discussing purpose of 28 U.S.C. § 2255 remedy).
We need not and do not express an opinion about whether the post-Booker
reinstated sentence should have been entered in light of the § 3553(a) factors, and
note that there is no evidence in the record before us that Dillon made a challenge
under Booker at the time of the original sentence on November 12, 1004, or the
resentencing on September 28, 2006. Had Dillon timely appealed her November
12, 2004 sentence, the Supreme Court’s decision in Booker, which was handed
down on January 12, 2005, would have been announced during the pendency of the
briefing schedule in that appeal. See Fed. R. App. P. 31(a) (setting an 84-day
briefing schedule for appeals). This Court would have, then, reviewed for Booker
error had the appeal been timely and had the argument not been waived. See
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987) (“We therefore
hold that a new rule for the conduct of criminal prosecutions is to be applied
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retroactively to all cases, state or federal, pending on direct review or not yet final,
with no exception for cases in which the new rule constitutes a ‘clear break’ with
the past.”).
Assuming arguendo that Dillon’s pre-Booker sentence is subject to
reasonableness review under the § 3553(a) factors, Dillon’s failure to raise any §
3553(a) arguments below requires us to review Dillon’s sentence for plain error.1
Had Dillon filed a timely appeal of her 2004 sentence, the statutory Booker
error–treating the Guidelines as mandatory–would have been made manifest during
the appellate process. Dillon would have been able, on a timely appeal, to satisfy
the first two prongs of the plain error test: there was error and it was plain after the
Supreme Court’s decision in Booker. However, Dillon fails to satisfy the third
prong of the plain error test, and cannot, under our decision in United States v.
Rodriguez, 398 F.3d 1291,1299-1306 (11th Cir. 2005), meet her burden to prove
substantial prejudice. “[W]here the effect of an error on the result in the district
1
Dillon has not made a constitutional challenge to her pre-Booker sentence, and
accordingly has waived this argument. See United States v. Dockery, 401 F.3d 1261, 1262-63
(11th Cir. 2005) (Booker-Apprendi issues and contentions not timely raised in an appellant’s
initial brief are deemed abandoned). We additionally observe that Dillon expressly waived her
right to raise constitutional challenges to her sentence at the time she executed her plea
agreement. Not only does the plea agreement reflect this waiver, but so too does Dillon’s plea
colloquy. Nevertheless, we will assume without deciding that this waiver did not include a
waiver of what we have referred to elsewhere as “[s]tatutory Booker error,” whereby the court
treats the Guidelines as mandatory instead of advisory. See United States v. Houston, 456 F.3d
1328, 1339 (11th Cir. 2006).
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court is uncertain or indeterminate–where we would have to speculate–the
appellant has not met his burden of showing a reasonable probability that the result
would have been different but for the error; he has not met his burden of showing
prejudice; he has not met his burden of showing that his substantial rights have
been affected.” Rodriguez, 398 F.3d at 1301. There must be a “a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge in this case.” Id. at 1300.
Here, Dillon fails to demonstrate with any reasonable probability how the
court below might have applied the Guidelines in an advisory fashion. At
sentencing, the court indicated that it would sentence Dillon at the bottom of the
Guidelines range–but notably without a minor-role reduction–and expressed no
desire to sentence below that range had it been available to the court. Cf. United
States v. Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005) (finding reasonable
probability of prejudice when district court made several remarks on the record
about the Guidelines range being too severe, sentenced defendant to the lowest
possible range, and indicated that said sentence was “more than appropriate”). In
this case, it would be nothing more than guesswork on our parts to discern any
probability of a reduced sentence in a post-Booker context, and therefore we find
Dillon has failed to demonstrate prejudice under our plain error review to entitle
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her to a new sentencing hearing.
We find no plain error in the entry of Dillon’s 2004 sentence and
accordingly the sentence is
AFFIRMED.2
2
Appellant’s request for oral argument is denied.
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