United States v. Xhosa Buffington , 629 F. App'x 875 ( 2015 )


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  •            Case: 15-10200   Date Filed: 10/22/2015   Page: 1 of 4
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-10200
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:12-cr-00223-SCJ-JSA-6
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    XHOSA BUFFINGTON,
    a.k.a. Sis,
    Defendant-Appellant.
    _______________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (October 22, 2015)
    Before HULL, ROSENBAUM and BLACK, Circuit Judges.
    PER CURIAM:
    Case: 15-10200        Date Filed: 10/22/2015        Page: 2 of 4
    Xhosa Buffington appeals her 60-month mandatory minimum sentence,
    imposed after she pled guilty to conspiracy to possess with intent to distribute
    heroin, in violation of 
    21 U.S.C. §§ 846
    , 841(b)(1)(B)(i), 841(b)(1)(C) and
    841(b)(1)(D). On appeal, Buffington argues that the Government failed to show
    she was responsible for at least 100 grams of heroin, triggering the mandatory
    minimum sentence. Buffington also argues that the sentencing court improperly
    applied an enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises
    to distribute or manufacture controlled substances. After review, we affirm.
    As a preliminary matter, Buffington does not challenge the constitutionality
    of her sentence under Alleyne v. United States, 570 U.S. ___, 
    133 S. Ct. 2151
    (2013) and appears not to want a jury to decide whether she possessed a sufficient
    quantity of heroin to qualify for the mandatory minimum under 
    21 U.S.C. § 841
    (b)(1)(B)(i). Buffington proceeded through two sentencing hearings and two
    appeals without raising an Alleyne objection.1 See Hamilton v. Southland
    Christian Sch., Inc., 
    680 F.3d 1316
    , 1319 (11th Cir. 2012) (“A passing reference to
    an issue in a brief is not enough, and the failure to make arguments and cite
    authorities in support of an issue waives it.”); United States v. Vanorden, 
    414 F.3d 1
    The plea colloquy in this case took place three weeks before Alleyne was decided. The
    first sentencing hearing, which was the subject of Buffington’s first appeal, took place two
    months after Alleyne, and the second sentencing hearing, which is the subject of this appeal, took
    place 18 months after Alleyne. Buffington references Alleyne for the first time in this appeal but
    only to counter an anticipated argument by the Government that Alleyne converts Buffington’s
    guilty plea as to all elements of the offense except the quantity of drugs into an unqualified guilty
    plea. The Government does not so argue.
    2
    Case: 15-10200     Date Filed: 10/22/2015   Page: 3 of 4
    1321, 1323 (11th Cir. 2005) (applying the waiver/abandonment rule in the context
    of constitutional challenges to criminal procedure). Because Buffington challenges
    the basis for the sentencing court’s findings rather than the constitutionality of the
    sentencing process, this Court reviews the sentencing court’s findings of fact for
    clear error. United States v. Rodriguez, 
    398 F.3d 1291
    , 1296 (11th Cir. 2005); see
    also United States v. Rothenberg, 
    610 F.3d 621
    , 624 (11th Cir. 2010).
    The sentencing court’s finding that Buffington was responsible for more
    than 100 grams of heroin was not clearly erroneous. Buffington admitted to the
    factual allegations in count three of the indictment, which included a statement that
    Buffington joined the underlying conspiracy “on or about March 1, 2012.”
    Although Buffington argued at the sentencing hearing that she did not join the
    conspiracy until May 2012, the sentencing court was entitled to credit Buffington’s
    statement during her plea colloquy that the indictment was true with the exception
    of the heroin quantity. See United States v. Almedina, 
    686 F.3d 1312
    , 1315 (11th
    Cir. 2012) (quotation omitted) (“Where a fact pattern gives rise to two reasonable
    and different constructions, the factfinder’s choice between them cannot be clearly
    erroneous.”). At the sentencing hearing, Buffington offered as evidence multiple
    investigation reports, which identified several heroin transactions involving one or
    more of Buffington and her co-conspirators and commencing on or after March 1,
    2012. In total, the reports identify transactions involving an aggregate of 84.2
    3
    Case: 15-10200     Date Filed: 10/22/2015    Page: 4 of 4
    grams of heroin and at least another 55.9 grams of heroin that was found in
    Buffington’s home. Therefore, the district court could reasonably have concluded
    that Buffington was responsible for more than 100 grams of heroin.
    The sentencing court’s decision to apply a two-point enhancement under
    U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of
    manufacturing or distributing a controlled substance was also not clearly
    erroneous. The evidence offered at sentencing showed that Buffington sold drugs
    from her home on at least one occasion and purchased drugs in her home on at
    least one occasion. On the night of Buffington’s arrest, as police approached
    Buffington’s home, they encountered in Buffington’s front yard two men, one of
    whom was armed. When Buffington’s home was searched, police found four
    scales and a large quantity of drugs, many of which were individually packaged in
    baggies. Under these facts, the sentencing court could reasonably have concluded
    that one of Buffington’s primary or principal uses for her home was the
    distribution of drugs. See U.S.S.G. § 2D1.1, comment (n.17) (“Manufacturing or
    distributing a controlled substance need not be the sole purpose for which the
    premises was maintained, but must be one of the defendant’s primary or principal
    uses for the premises, rather than one of the defendant’s incidental or collateral
    uses for the premises.”).
    AFFIRMED.
    4
    

Document Info

Docket Number: 15-10200

Citation Numbers: 629 F. App'x 875

Filed Date: 10/22/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023