Case: 11-12251 Date Filed: 11/06/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12251
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cr-00179-MEF-SRW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VANDRICIA DEISHON FINLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(November 6, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Case: 11-12251 Date Filed: 11/06/2012 Page: 2 of 6
Vandricia Finley appeals his 188-month sentence for possession with intent
to distribute 50 grams or more of crack cocaine. For the reasons that follow, we
dismiss the appeal in part and affirm in part.
I.
Finley pleaded guilty to the sole charge against him pursuant to a plea
agreement, which included a waiver of Finley’s right to appeal or collaterally
challenge his sentence. At the change-of-plea hearing, the court explained the
waiver to Finley, and Finley stated that he understood the terms of the appeal
waiver. He then admitted that he possessed fifty grams or more of crack cocaine
with the intent to distribute it.
At sentencing, the court determined that Finley was responsible for an
amount of crack equivalent to 635,918 kilograms of marijuana and 3,038
kilograms of powder cocaine. When combined for a total of 638,957 kilograms,
the amount corresponded to a base offense level of 38. After including all
applicable enhancements and reductions, including a reduction for substantial
assistance under U.S.S.G. § 5K1.1, the court determined the guideline range to be
188 to 235 months’ imprisonment, and it sentenced Finley to 188 months’
imprisonment. After the sentence was imposed, Finley stated his objection to the
quantity of drugs for which he was held responsible. Finley now appeals the
2
Case: 11-12251 Date Filed: 11/06/2012 Page: 3 of 6
reasonableness of his sentence and the district court’s failure to apply the Fair
Sentencing Act,1 which lowered the mandatory minimum sentences – and the
quantity of drugs necessary to trigger such sentences – applicable to crack cocaine
offenses.
II.
Before we reach the merits of Finley’s appeal, we must first address the
appeal waiver that was part of Finley’s plea agreement. We review the validity of
an appeal waiver de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th
Cir. 1993). An appeal waiver is enforceable if it was made knowingly and
voluntarily, and for this court to enforce it the government must demonstrate either
that “(1) the district court specifically questioned the defendant concerning the
sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear
from the record that the defendant otherwise understood the full significance of
the waiver.” Id. at 1351.
Our review of the record confirms that Finley’s waiver was entered into
knowingly and voluntarily. Indeed, Finley does not argue otherwise. We
therefore conclude that the waiver is enforceable. Accordingly, to the extent that
Finley challenges the drug quantity attributable to him or argues that his sentence
1
The Fair Sentencing Act of 2010, Pub.L. No. 111-120, 124 Stat. 2372 (2010).
3
Case: 11-12251 Date Filed: 11/06/2012 Page: 4 of 6
was otherwise unreasonable, such issues are barred by the waiver and we dismiss
the appeal with respect to these issues.
But we need not reach this issue of whether the appeal waiver applies to
Finley’s claim that he should have been, but was not, sentenced under the Fair
Sentencing Act because the government has expressly waived its right to enforce
the appeal waiver with respect to that claim.2 Accordingly, we will address the
merits of Finley’s Fair Sentencing Act claim.
III.
Finley did not object to the court’s failure to apply the Fair Sentencing Act,
leaving him with the more difficult plain error standard of review. See United
States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To meet this standard,
Finley must show an (1) error, (2) that is plain and (3) that affects substantial
rights. If all three conditions are met, an appellate court may exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1276
(internal citation omitted).
The Supreme Court has clarified that the Fair Sentencing Act applies to
2
In response to our request for supplemental briefing, the government concedes that it is
not seeking to enforce the appeal waiver with respect to Finley’s Fair Sentencing Act claim.
4
Case: 11-12251 Date Filed: 11/06/2012 Page: 5 of 6
those defendants who, like Finley, committed their acts before but were sentenced
after the Act went into effect. Dorsey v. United States, 132 S.Ct. 2321, 2331, 2335
(2012). We thus conclude that Finley can show an error that was plain. See
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (“[a]lthough the
error was not ‘plain’ at the time of sentencing, ‘where the law at the time of trial
was settled and clearly contrary to the law at the time of appeal—it is enough that
the error be ‘plain’ at the time of appellate consideration.’” (quoting Johnson v.
United States, 520 U.S. 461, 468 (1997)).
But Finley cannot show that his substantial rights were affected. Finley was
held responsible for a staggering amount of drugs, placing him well above the
quantities necessary to trigger the mandatory minimum sentences that were revised
under the Fair Sentencing Act. See 21 U.S.C. § 841 (2006 & Supp. V 2012).
Even if the court had applied the Fair Sentencing Act, Finley’s base offense level
and guideline range would not have been different. And the mandatory minimum
sentences played no role in the sentence imposed. Thus, Finley cannot show that
the district court’s error affected his substantial rights. See United States v.
Rodriguez, 406 F.3d 1261, 1262-63 (11th Cir. 2005) (explaining that an error
affects substantial rights when it “affected the outcome of the district court
proceedings” (internal quotation marks omitted)). Accordingly, we affirm
5
Case: 11-12251 Date Filed: 11/06/2012 Page: 6 of 6
Finley’s sentence.
DISMISSED in part, and AFFIRMED in part.
6