United States v. Marlon Jerell Daffin , 574 F. App'x 914 ( 2014 )

Case: 14-10279 Date Filed: 09/09/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10279
Non-Argument Calendar
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D.C. Docket No. 1:05-cr-00296-CB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON JERELL DAFFIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(September 9, 2014)
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Before HULL, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
Marlon Daffin appeals the district court’s order revoking his supervised
release and resentencing him to 24-months imprisonment. Daffin argues that his
sentence is procedurally unreasonable because the district court erred in calculating
his guidelines range. Although Daffin is correct that the district court plainly erred
in calculating his guidelines range 1—something the United States does not
dispute—that error did not affect his substantial rights. Therefore, after careful
review of the record and the parties’ briefs, we affirm.
Because Daffin raises his objections to the district court’s sentencing
calculations for the first time on appeal, our review is for plain error. United States
v. Frazier, 605 F.3d 1271, 1282 (11th Cir. 2010). Plain-error review requires that:
(1) an error occurred; (2) the error was plain; and (3) the error affected the
defendant’s substantial rights. United States v. Bennett, 472 F.3d 825, 831 (11th
Cir. 2006) (per curiam). If those three conditions are met, we can then exercise our
discretion to “notice the forfeited error if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 832. “A substantial
right is affected if the appealing party can show that there is a reasonable
1
Chapter 7 of the United States Sentencing Guidelines (USSG), which addresses sentences for
violations of supervised release, emphasizes reasons that may exist for departing from the range
of imprisonment set out in the Revocation Table, beyond those that might exist at the time the
original sentence is imposed. See USSG § 7B1.4 comment. (nn. 1–6).
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probability that there would have been a different result had there been no error.”
Id. at 831–32.
In reviewing the reasonableness of a sentence, we consider whether the
district court committed a procedural error, such as improperly calculating the
guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). However, a guideline range miscalculation does not necessarily affect a
defendant’s substantial rights. See, e.g., United States v. Pantle, 637 F.3d 1172,
1177–78 (11th Cir. 2011) (per curiam). In Pantle, the district court’s chosen
sentence was outside the correct guideline range, but we held that the error did not
affect the defendant’s substantial rights, in part because the sentencing court could
have imposed the same sentence despite the miscalculation. Id.Similar to Pantle, although the district court plainly erred in this case in
determining Daffin’s guidelines range, this error did not affect his substantial
rights. The district court told Daffin at a previous revocation hearing that another
violation would result in “the maximum sentence that [it] can impose in the
penitentiary,” 24-months imprisonment. See 18 U.S.C. § 3583(e)(3). At his
second revocation hearing, the one at issue here, the district court noted Daffin’s
extensive criminal history and its own leniency after his first violation of
supervised release. The court stated that the 24-month sentence Daffin was warned
about was appropriate, although it mistakenly stated that the sentence was within
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the guidelines range. The court sentenced him to the statutory maximum, as it
previously had stated it would if he violated his supervised release terms again.
Therefore, Daffin has failed to demonstrate a reasonable probability that he would
have received a different sentence if the district court had not erred in its
calculation of the applicable guideline range. See Pantle, 637 F.3d at 1178.
Because Daffin cannot show that the plain error has affected his substantial rights,
we affirm.
AFFIRMED.
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