United States v. Dallas E. Davis , 194 F. App'x 716 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10214 AUGUST 30, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00044-CR-FTM-33DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALLAS E. DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 30, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Dallas E. Davis appeals his sentence after pleading guilty to two counts of
possession with intent to distribute and distribution of crack cocaine. See 21
U.S.C. § 841. Davis argues that (1) his sentence should be vacated because he was
entitled to sentencing by a different district court judge after the government
breached its obligation under his plea agreement and (2) his sentence under section
841(b) violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
We affirm.
On three occasions in January 2004, Davis sold crack cocaine to an
undercover agent of the U.S. Drug Enforcement Administration. Davis was
arrested and indicted on three counts of possession with intent to distribute and
distribution of crack cocaine. See 21 U.S.C. § 841. Davis entered a written plea
agreement in which the government agreed to dismiss the third count of the
indictment and recommend a sentence “at the low end of the applicable guideline
range” in exchange for Davis’s pleading guilty to the first two charges. On August
4, 2005, Davis pleaded guilty.
At Davis’s sentencing hearing, the district court calculated a guidelines
range of 84 to 105 months of imprisonment. The government recommended a
sentence “within the guidelines range.” The district court commented on Davis’s
prior drug convictions and sentenced Davis to 100 months of imprisonment.
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After the district court adjourned the hearing, Davis reminded the
government of its obligation to recommend a sentence at the low end of the
guidelines range. The government requested that the district court reopen the
sentencing hearing and advised the district court that it was “contractually bound to
recommend” a sentence of 84 months. The district court reopened the hearing and
permitted both parties an opportunity to argue. The district court then stated that it
does not always follow the recommendation of the government, spent a “long time
looking through [Davis’s] background,” and determined that the sentence of 100
months was an “appropriate and fair sentence, given the crime involved, given the
defendant’s background, and given the defendant’s history.” Davis did not object
to the sentence or that it was imposed by the same district court judge.
This Court reviews de novo the remedy for a violation of a plea agreement
by the government. See United States v. Johnson, 132 F.3d 628, 631 (11th Cir.
1998). We review de novo the constitutionality of a statute. See United States v.
Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). “We review arguments raised for
the first time on appeal for plain error.” United States v. Clark, 274 F.3d 1325,
1325 (11th Cir. 2001).
Davis argues that resentencing by the same district court judge was an
insufficient remedy for the breach of the plea agreement by the government.
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Because Davis failed to object to this remedy, we review for plain error. See id.“We will find plain error only where (1) there is an error in the district court’s
determination; (2) the error is plain or obvious; (3) the error affects the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.
1996)). “In regard to this third prong, ‘it is the defendant rather than the
government who bears the burden of persuasion with respect to prejudice.’”
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (quoting United
States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993)).
Even if the district court committed error that is plain by reopening the
sentencing hearing and resentencing Davis, see Johnson, 132 F.3d 631, Davis
cannot establish prejudice. Davis must establish a “reasonable probability” that his
sentence would have been lower. Id. Davis offers no evidence that his sentence
would have been lower had his sentencing been reassigned to an “untainted”
district court judge. To the contrary, the district court stated that it considered the
recommendation of the government but chose not to follow it because of Davis’s
conduct, background, and history. Davis suffered no prejudice when he was
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resentenced by the same district court judge after the breach was brought to the
attention of the court.
Davis also argues that his sentence is unconstitutional under Apprendi, 530
U.S. 466, 120 S. Ct. 2348, because section 841(b) allows facts not found by a jury
to increase the sentence beyond the statutory maximum. Davis failed to raise this
argument before the district court, and this Court recently held that section 841
does not violate Apprendi and its progeny. See United States v. Underwood, 446
F.3d 1340, 1345 (11th Cir. 2006). We find no error, plain or otherwise.
AFFIRMED.
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