Petition for Writ of Certiorari — Toepfer v. United States (No. 08-469)

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Supreme Court, U.S.

FILED

08-469 OCT 7- 2008

\o D

No. 08° OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

DEVON HOWARD TOEPFER

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD C. KLUGH, JR.

Counsel for Petitioner

Ingraham Building

25 S.E. 2nd Avenue, Suite 1105

Miami, Florida 33131

Tel. (305) 536-1191

QUESTIONS PRESENTED

Prior to trial, the district court advised petitioner

that the jury’s special verdict findings would bind the

court for sentencing purposes. At sentencing, over

petitioner’s objection, the district court calculated the

guidelines on the basis of acquitted conduct.

Thereafter, the court erroneously imposed sentence

without considering statutory sentencing factors.

Petitioner failed to object to the statutory error. The

questions presented are:

1. Did the district court’s exclusive reliance on

acquitted conduct in imposing a _ guideline-based

sentence violate petitioner’s Sixth Amendment jury

trial and Fifth Amendment due process rights?

2. Did the court of appeals err in employing —

contrary to the majority of the circuits — a plain error

sentencing prejudice test under which a defendant, in

order to show the harmfulness of the violation of

forfeited procedural rights at sentencing, must present

evidence that the sentence would have been lower but

for the violation?

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceeding in the court whose

judgment is sought to be reviewed are listed below:

Devon Howard Toepfer, Jeffrey Toepfer, and the

United States of America

TABLE OF CONTENTS

QUESTIONS PRESENTED ................-5.

PARTIES TO THE PROCEEDING BELOW ..... ii

TABLE OF AUTHORITIES .................. v

OPINIONS BELOW ...............0.0.0005- 1

TOOT a ih a een eee 1

CONSTITUTIONAL AND OTHER PROVISIONS

INVOUIED. «0 5s ee Sen eed nei esos needs 1

PTATEM cia eee eee 2

REASONS FOR GRANTING THE WRIT ....... 7

I. THE COURT SHOULD RESOLVE WHETHER

THE FIFTH AND SIXTH AMENDMENTS

LIMIT A DISTRICT COURT’S RELIANCE ON

ACQUITTED CONDUCT IN IMPOSING A

GUIDELINE SENTENCE ................. 7

Il. THE COURT SHOULD RESOLVE THE

ENTRENCHED CIRCUIT CONFLICT AS TO

APPLICATION OF THE PLAIN ERROR

PREJUDICE TEST TO SENTENCING

SS oo wo ae Os ee ee eee 15

CAFU IIOD ds on oe eo ae a a 23

(iii)

APPENDIX

Opinion of the United States Court of

Appeals for the Eleventh Circuit, July 9,

I ok geo aos be oe ee CE ee ee ea la

Judgment of the United States District Court,

Southern District of Florida, April 24,2006 . 14a

Sentencing Ruling of the United States

District Court, Southern District of Florida,

ee es I i oe es es ee ee ee 22a

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466

(2000)

Blakely v. Washington, 542 U.S. 296 (2004)

Gall v. United States, 128 S.Ct. 586

(2007) 3, 11, 15-16

Harris v. United States, 536 U.S. 545 (2002) ..... 2

Jones v. United States, 527 U.S. 373 (1999) .. 17, 22

Kimbrough v. United States, 128 S.Ct. 558

(2007) 11, 15, 16

Kotteakos v. United States, 328 U.S. 750 (1946) .. 20

Puckett v. United States, No. 07-9712, 2008 WL

647140 (U.S. Oct. 1, 2008)

Ring v. Arizona, 536 U.S. 584 (2002)

Rita v. United States, 127 S.Ct. 2456 (2007) .. 10,12

Smith v. Massachusetts, 543 U.S. 462 (2005) .... 13

United States v. Ameline, 409 F.3d 1073

(9th Cir. 2005) (en banc).................. 20

United States v. Antonakopoulos, 399 F.3d 68

Ce ee sg sa oe ae eee 20

United States v. Booker, 543 U.S. 220

(2005)

United States v. Canania, 532 F.3d 764

(8th Cir. 2008)

United States v. Coles, 403 F.3d 764

ene Se EE a sc a kb eo ae a 20

United States v. Crosby, 397 F.3d 103

(2d Cir. 2005)

United States v. Davis, 407 F.3d 162

(3d Cir. 2005)

CASES — continued

United States v. De La Garza, 516 F.3d 1266

(llth Cir. 2008)

United States v. Dominguez-Benitez, 542 U.S. 74

(2004)

United States v. Duncan, 400 F.3d 1297

(11th Cir. 2005)

United States v. Faust, 456 F.3d 1342

(11th Cir. 2006)

United States v. Grier, 475 F.3d 556

(3d Cir. 2007)

United States v. Henry, 472 F.3d 910

(D.C. Cir. 2007)

United States v. Hughs, 401 F.3d 540

(4th Cir. 2005)

United States v. Ibanga, 454 F.Supp.2d 532 (E.D.

Va. 2006), vacated and remanded, 271 Fed.

Appx. 298 (4th Cir. 2008)

United States v. Mares, 402 F.3d 511

(5th Cir. 2005)

United States v. Mercado, 474 F.3d 654

(9th Cir. 2007)

United States v. Oliver, 397 F.3d 369

(6th Cir. 2005)

United States v. Paladino, 401 F.3d 471

(7th Cir. 2005)

United States v. Pirani, 406 F.3d 543

(8th Cir. 2005) (en banc)

United States v. Reuter, 463 F.3d 792

(7th Cir. 2006)

United States v. Rodriguez, 398 F.3d 1291

(11th Cir. 2005)

V1l

CASES - continued Page

United States v. Settles, 530 F.3d 920

Re vcs wow eeu teak hae eee oS 10

United States v. Watts, 519 U.S. 148 (1997) .. 2, 8-10

United States v. White, 503 F.3d 487

SC PE. 4g 3 x 5 + seh b 4d ee eas 11

Witte v. United States, 515 U.S. 389 (1995) ...... 4

CONSTITUTIONAL PROVISIONS

Seg eT ee 1, passim

t).o. Comet. amend. Vi ...........2.46. 2, passim

STATUTES

WOUGC, BU | oo oi on ce ee ee we 4

Ue os 6 oe dee 4

TOUSC.61066 ..... o.oo ccc cha cveveas 4

18 U.5.C. § 2663{a) 2... ees 6, 7, 12, 13, 16-18

Bee ee in a ee eee eee eee 4

Dies Oe ks a ee 8 oe eee 4

CBU GC. § 19540)... cede be cunv ew, 1

OTHER AUTHORITIES

rod. , Crim. F. Be)... awe 1,2, 19

U.S. Sentencing Commission, Preliminary

Quarterly Data Report (3rd Quarter 2008) .... 8

Barry L. Johnson, Jf at First You Don’t Succeed -

Abolishing the Use of Acquitted Conduct in

Guidelines Sentencing, 75 N.C. L. Rev. 153

CRT 8:5 Gece wens ca be se eee 11

Vill

OTHER AUTHORITIES — continued Page

Mark Hansen, “Acquitting Time,” ABA JOURNAL

(Ae. DO ou oss 004 hee eee 8

Scott Michaels, “When Not Guilty Can Mean More

Prison Time: Judges Can Sentence Criminals to

Longer Prison Terms Even After a Jury Has

Acquitted Them,” ABC News

(Sept. 16, 2008), http://abcnews.go.com/

TheLaw/Story71d=5809692&page=1 ......... 8

Brief of Amici Curiae Law Professors in United

States v. White, No. 05-6596 (Jan. 16, 2008) .. 12

Petition for Certiorari by the United States, Barnett

v. United States, (No. 04-5252) ............ 21

Brief for the United States, Rodriguez v. United

States, 2005 WL 1210522 (No. 04-1148) (May

TAMOOE 6c a bee 25 eee 18, 21

Brief for the United States, Mendoza-Torres v.

United States, 2006 WL 849864 (No. 05-7496)

(Fem. SB, Bae? 2nd ise eee 21

PETITION FOR A WRIT OF CERTIORARI

Petitioner Devon Howard Tocepfer respectfully

presents this petition for a writ of certiorari.

OPINIONS BELOW

The unpublished opinion of the Court of Appeals for

the Eleventh Circuit (App. 1a-13a) is reported at 2008

WL 2673878 (11th Cir. July 9, 2008). The district

court's sentencing ruling is set forth in the sentencing

transcript (App. 22a-23a).

JURISDICTION

The judgment of the court of appeals was entered

on July 9, 2008. The Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED

This petition is premised on the Fifth and Sixth

Amendments of the United States Constitution and

Rule 52(b) of the Federal Rules of Criminal Procedure:

U.S. Const. amend. V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except 1n cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

U.S. Const. amend. VI

In all criminal prosecuticns, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of

Counsel for his defence.

Fed. R. Crim. P. 52(b)

Plain Error. A plain error that affects

substantial rights may be considered even

though it was not brought to the court's

attention.

STATEMENT

In United States v. Watts, 519 U.S. 148 (1997), the

Court held that the Double Jeopardy Clause does not

preclude a sentencing court’s use of acquitted conduct

to determine a defendant’s federal sentencing guideline

range. And in Harris v. United States, 536 U.S. 545

(2002), the Court held that a conviction is not a

prerequisite to application of statutory minimum

sentencing provisions. The Court’s later decisions, in

United States v. Booker, 543 U.S. 220 (2005), holding

that the Sixth Amendment right to jury trial bars

mandatory application of the sentencing guidelines,

and in Gall v. United States, 128 S.Ct. 586 (2007),

holding that a sentencing court has discretion to

deviate substantially from the guideline range, even

absent jury resolution of disputed facts, see td. at 603

(Souter, J., concurring), do not specifically address

whether a defendant’s jury trial and due process rights

create a basis for reliance on an acquittal in the

guideline sentencing process.

Because the extent of a defendant’s reliance on a

jury verdict may vary from case to case, and because

petitioner was advised by the trial court that the

sentencing decision would rest on the jury’s findings as

to drug quantity, this case presents an opportunity for

the Court to explain whether, and under what

circumstances, a defendant may rely on the jury’s

verdict in sentencing guideline determinations.

Apart from the constitutional error, the court of

appeals also held that the sentencing court’s failure to

consider statutory sentencing factors did not affect

petitioner’s substantial rights, a holding premised on

the application of the court of appeals’ plain error

prejudice test under which a defendant must present

record evidence showing that the district court would

have imposed a lower sentence but for the error, so as

to satisfy a “reasonable probability” burden. Because

this high standard effectively bars relief for plain

sentencing errors, conflicts with the law of other

circuits, and presents an intractable conflict, after

several years of the Eleventh Circuit’s reiteration of its

rule, this case offers an opportunity to resolve the

substantial rights test for plain sentencing errors.

A. District Court Proceedings.

Petitioner was charged in a multi-count federal

indictment that named him in 11 counts, ranging from

drug manufacturing and distribution to money

laundering to mortgage fraud to obstruction of justice.’

At trial, petitioner was found guilty only of the

lesser-included offenses of conspiracy to possess and

manufacture, and possession and manufacture of, less

] ’ . . ‘ .

The indictment charged petitioner with conspiracy,

from 1994 to 2003, to manufacture and possess with intent

to distribute 1000 or more marijuana plants (count 1), in

violation of 21 U.S.C. § 846; manufacturing and possessing

with intent to distribute more than 1000 marijuana plants

from 1998 to 1999 (count 2), in violation of 21 U.S.C. § 841;

attempting to distribute more than 100 kilograms of

marijuana in August 2000 (count 3), in violation of 2

U.S.C. § 846; possessing with intent to distribute 50 or more

marijuana plants in November 200i (count 4), in violation

of 21 U.S.C. § 841; possessing with intent to distribute 50

kilograms of more of marijuana in November 2001 (count 5),

in violation of 21 U.S.C. § $41; obstructing justice (count 8),

in violation of 18 U.S.C. § 1512; distributing Diazepam

(Vahum) pills (counts 9 & 10), in violation of 21 U.S.C. §

841; money laundering conspiracy from 1994 to 2003 (count

11), in violation of 18 U.S.C. § 1956; and making material

false statements to a lending institution to secure a

mortgage in 1996 (count 14) and in 2000 (count 15), in

violation of 18 U.S.C. § 1014.

than 1000 marijuana plants (counts 1 & 2) as well

distributing four Diazepam pills (Counts 9 & 10).

Petitioner was acquitted of all other charges. The jury

made a special verdict finding that the amount of

marijuana plants involved was less than 1000.

Before swearing in the jury at trial, the district

court engaged in a colloquy with petitioner to insure

that he understood that 1n the event of a conviction,

the jury’s findings as to the number of marijuana

plants would trump the court’s discretion to decide that

sentencing factor. The trial court asked petitioner if he

understood that the court “would be bound to any

finding the jury makes,” and petitioner responded,

“Yes, Your Honor.” ‘Trial tr. 3 (Dec. 5, 2005). The

district court instructed petitioner that the jury’s

findings as to marijuana plants would give the court

“no discretion as to your sentence.” Jd. The trial court

then inquired as to, and petitioner confirmed, his

choice to go to trial, with awareness of the finality of

the jury’s determinations as to the number of plants.

At the conclusion of the trial, the jury returned a

verdict with a special finding of an amount of

marijuana plants less than that stated in the

indictment, specifically, less than 1000 plants. The

district court noted that the jury verdict in petitioner’s

case represented a finding of 661 plants. App. lla.

At sentencing, petitioner argued that the drug

guideline calculation should — as the parties and the

court had acknowledged prior to and during trial — be

set on the basis of less than 1000 marijuana plants.’

The district court overruled the objection and

sentenced petitioner based on its finding of a greater

amount of plants, a total of 3,744 plants, which raised

petitioner’s guideline range by more than 5 years. The

district court then imposed a guideline-range sentence

of 140 months without affording consideration to any

of the requisite non-guideline sentencing factors under

18 U.S.C. § 3553(a). Petitioner failed to object to this

procedural error.

B. Appellate Proceedings.

The court of appeals, while disputing whether the

statements made by the district court and the

government constituted consent “to be bound at

sentencing” by the jury’s factual determinations, held

that even if petitioner had relied on _ such

representations, they were unenforceable. App. 6a-7a

(“‘[E]ven if there was an agreement between

[petitioner] and the government, the agreement would

At sentencing, the government did not dispute that

petitioner chose to go to trial believing that the jury verdict

would control the drug quantity calculation for his

sentencing guidelines. During the jury instruction

conference, the government recognized — consistent with the

pretrial advice by the district court — that the jury’s findings

as to the number of marijuana plants would control the

guideline determination and requested that the verdict form

include offense level-graded findings above the quantity

amounts stated in the indictment. Trial tr. 64-65

(requesting that jury verdict form allow for finding as to

more than 3,000 plants). The trial court denied the request,

and the jury found lesser amounts than those charged.

not preclude the district court from fulfilling its

obligation under tne Sentencing Guidelines to conduct

independent findings of fact necessary for imposing a

reasonable sentence.”). Regarding the district court’s

reliance on acquitted conduct in determining the

guideline-range sentence, the court of appeals held

that the district “court did not violate [petitioner]’s

Fifth or Sixth Amendment rights by calculating his

sentence based on judge-found facts, including

acquitted conduct.” App. 7a (citing United States v.

Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005)).

Applying plain error review to the district court’s

“procedural sentencing error under Booker [in failing]

to consider the 18 U.S.C. § 3553(a) factors in

calculating” petitioner’s sentence, App. 8a, the court of

appeals held that petitioner failed to establish an effect

on his substantial rights because he did not present

evidence showing “that if the district court had

explicitly considered the § 3553(a) factors, the court

would have imposed a different sentence.” App. 10a.

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD RESOLVE WHETHER

THE FIFTH AND SIXTH AMENDMENTS

LIMIT A DISTRICT COURT'S RELIANCE ON

ACQUITTED CONDUCT IN IMPOSING A

GUIDELINE SENTENCE.

The Court has not revisited the role of acquitted

conduct in the sentencing guidelzne process since its

pre-Apprendi® holding, in United States v. Watts, 519

U.S. 148 (1997), that double jeopardy does not bar such

reliance in the federal guideline system. For numerous

reasons, including the public’s continuing surpiise and

misunderstanding as to the lack of effect of jury

verdicts’ and the persisting predominance of the

guideline calculation as a sentence-determinative

benchmark,® the Court should resolve the

circumstances under which acquitted conduct may be

used to substantially increase punishment under the

sentencing guidelines.

In Watts, the Court stated that “sentencing

enhancemeuts [based on acquitted conduct] do not

punish a defendant for crimes of which he was not

’ Apprendi v. New Jersey, 530 U.S. 466 (2000).

‘See, e.g., Mark Hansen, “Acquitting Time,” ABA

JOURNAL (Aug. 2008); Scott Michaels, “When Not Guilty

Can Mean More Prison Time: Judges Can Sentence

Criminals to Longer Prison Terms Even After a Jury Has

Acquitted Them,” ABC News (Sept. 16, 2008), available at

http://abenews.go.com/TheLaw/Story?id=5809692&page=1.

The Sentencing Commission’s most recent national

comparison of sentences imposed relative to the guideline

range shows that from October 1, 2007 to June 30, 2008,

only 13.1% of all sentences were non-government-sponsored

below-guidelines sentences, 1.6% were above-guideline

sentences, and 85.2% of all sentences were within-guideline

or government-sponsored-below-guideline sentences. U.S.

Sentencing Commission, Preliminary Quarterly Data Report

(3rd Quarter 2008), Table 1, available at: http://www.ussc.

gov/sc_cases/USSC _2008_Quarter_Report_3rd.pdf.

convicted, but rather increase his sentence because of

the manner in which he committed the crime of

conviction.” Watts, 519 U.S. at 154 (citing Witte v.

United States, 515 U.S. 389, 402-03 (1995)). But Watts

addressed only the double jeopardy consequences of an

acquittal, not its Sixth Amendment significance or its

relevance to other Fifth Amendment rights. See

United States v. Booker, 543 U.S. 220, 240 & n. 4

(2005) (Watts involved the “very narrow question”

presented by the Double Jeopardy Clause).

Although to date the conflict over the use of

acquitted conduct has been only internal to the

circuits, there are numerous published opinions

explaining the fundasnental constitutional problems

with such reliance in the guideline process.°®

See, e.g., United States v. Grier, 475 F.3d 556, 586 n. 34

(3d Cir. 2007) (Ambro, J., concurring) (even if Watts

“survives” Apprendi, “the practice of considering acquitted

conduct might not [and] doing so mighi still violate the jury

right of the Sixth Amendment as expounded by Apprendi

and its progeny’); United States v. Mercado, 474 F.3d 654,

658 (9th Cir. 2007) (B. Fletcher, J., dissenting) (arguing that

Watts focused solely on the Fifth Amendment and is

inapplicable to Sixth Amendment challenges): United Stales

v. Faust, 456 F.3d 1342, 1349 (Lith Cir. 2006) (Barkett, J.,

specially concurring) (suggesting that Watts has been

“explicitly disavowed by the Supreme Court as a matter of

Sixth Amendment law [and] has no bearing on this case in

hght of the Court’s more recent and relevant rulings”);

United States vu. Henry, 472 F.3d 910, 920 (D.C. Cir. 2007)

(Kavanaugh, J., concurring) (“The oddity of all this is

perhaps best highlighted by the fact that courts are still

(continued...)

Most recently, in United States v. Canania, 532

F.3d 764 (8th Cir. 2008), Judge Myron Bright set forth

his “strongly held view that the consideration of

‘acquitted conduct’ to enhance a defendant’s sentence

is unconstitutional.” /d. at 776 (Bright, J., concurring).

And in United States v. Settles, 530 F.3d 920, 923-24

(2d Cir. 2008), the District of Columbia Circuit,

applying Booker and Watts, concluded that the

Constitution does not prohibit acquitted conduct

sentencing, but acknowledged that

we understand why defendants find it unfair for

district courts to rely on acquitted conduct when

imposing a sentence; and we know that

defendants find it unfair even when acquitted

conduct is used only to calculate an advisory

Guidelines range because most district judges

still give significant weight to the advisory

Guidelines when imposing a sentence.

The District of Columbia Circuit nevertheless

rejected a hard-and-fast rule, such as that applied by

the court of appeals in petitioner’s case, and concluded

that “even though district judges are not required to

discount acquitted conduct, the Booker-Rita-

. (...continued)

using acquitted conduct to increase sentences beyond what

the defendant otherwise could have received —

notwithstanding that five Justices in the Booker

constitutional opinion stated that the Constitution requires

that facts used to increase a sentence beyond what the

defendant otherwise could have received be proved to a jury

beyond a reasonable doubt.”).

Kimbrough-Gall line of cases may allow district judges

to discount acquitted conduct in particular cases — that

is, to vary downward from the advisory Guidelines

range when the district judges do not find the use of

acquitted conduct appropriate.” Jd. at 924 (emphasis

added) (citing Kimbrough v. United States, 128 S.Ct.

558, 570 (2007)).’

That the Circuits are troubled by the acquitted

conduct problem is notably seen in the en banc

proceedings presently being conducted by the Third

Circuit which, for nearly a year, has had under

consideration the question of whether acquitted

conduct may be used to set guideline sentences.

United States v. White, 503 F.3d 487 (6th Cir. 2007)

(rehearing en banc granted Nov. 30, 2007).

As Judge Bright’s recent opinion explained, the

continuing reliance on acquitted conduct in the present

guideline system contravenes the thrust of nearly a

decade of this Court's decisions:

In the last decade, the Supreme Court

re-affirmed the jury’s central role in the criminal

justice system. See, e.g., Apprendi v. New Jersey,

See also United States v. Ibanga, 454 F.Supp.2d 532,

541 (E.D. Va. 2006) (observing that use of acquitted conduct

drives “a wedge between the community's sense of

appropriate punishment and the criminal sanction

inflicted”) (quoting Barry L. Johnson, If at First You Don't

Succeed — Abolishing the Use of Acquitted Conduct in

Guidelines Sentencing, 75 N.C. L. Rev. 153, 185 (1997)),

vacated and remanded, 271 Fed.Appx. 298 (4th Cir. 2008).

530 U.S. 466 (2000); Ring v. Arizona, 536 U.S.

584 (2002); Blakely v. Washington, 542 U.S. 296

(2004); United States v. Booker, 543 U.S. 220

(2005). Rather than pretending as if these cases

were never decided, we federal judges should

acknowledge their clear implication: A judge

violates a defendant’s Sixth Amendment rights

by making findings of fact that either ignore or

countermand those made by the jury and then

relies on these factual findings to enhance the

defendant’s sentence.

Canania, 532 F.3d at 776 (Bright, J., concurring).

Even if the Court’s consideration of acquitted

conduct at sentencing is sometimes permissible under

the Sixth Amendment, there must be constitutional

limits to how extensively or exclusively a district court

can rely on acquitted conduct to increase a sentence on

distinct charges. See Rita v. United States, 127 S.Ct.

2456, 2462 (2007) (Scalia, J., concurring) (“[T]he

Court’s opinion ... does not rule out as applied Sixth

Amendment challenges to sentences that would not

have been upheld as reasonable on the facts

encompassed by the jury verdict or guilty plea.”).*

* The statutory premise of the court of appeals’ holding

that sentencing courts must use the acquitted conduct in

calculating the sentence, based on a_ preponderance

standard, see App. 6a-7a, is subject to question. See Brief of

Amici Curiae Law Professors in United States v. White, No.

05-6596, at 5 (Jan. 16, 2008) (“Both the express text and

overall structure of 18 U.S.C. § 3553(a) indicate that

(continued...)

This case presents the Court with an opportunity to

explain the limits of permissible post-Booker

consideration of acquitted conduct.

Particularly where a jury is given the opportunity

to specifically pronounce on the evidence submitted by

the government, a number of fundamental

constitutional values are weakened by discarding the

jury’s decision, including the public’s perception of, and

respect for, the service of jurors. Given the reality of

post-Booker sentencing, in which sentences are largely

within the guidelines range, the discounting of the

effect of an acquittal is contrary to the spirit of the

Sixth Amendment and here, given petitioner’s reliance

on the trial court’s plea-related advice, violates due

process. See Smith v. Massachusetts, 543 U.S. 462

(2005) (requiring accused to continue to defend against

enhanced charge despite trial court’s favorable decision

as to the scope of the risk facing the defendant at trial

violates due process); Canania, 532 F.3d at 777

(Bright, J, concurring) (“[T]he use of ‘acquitted conduct’

®° (...continued)

Congress intended and expected sentencing judges to be

focused principally on offenses of conviction.”) (citing United

States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006)

(suggesting that reference to “the offense” in § 3553(a)

concerns “the offense of conviction”)); id. at 5 n. 2 (“[T]he

[Sentencing Reform Act] has no direct references to

acquitted conduct. Had Congress intended or sought for

acquitted conduct to be a regular and integral component of

guideline calculations, it likely would have made clear this

view by using phases like ‘has committed’ and ‘responsible

for’ instead of the chosen phrases of ‘been found guilty’ and

‘convicted of.””).

to enhance a sentence violates the Due Process Clause

of the Fifth Amendment. ... [T]he consideration of

‘acquitted conduct’ undermines the notice requirement

that is at the heart of any criminal proceeding.”).”

® Judge Bright “urge{d] the Supreme Court to re-

examine [the] continued use” of acquitted conduct based on

both Fifth and Sixth Amendment grounds. Id. at 777 (“A

defendant should have fair notice to know the precise effect

a jury’s verdict will have on his punishment. It cannot

possibly satisfy due process to permit the nullification of a

jury’s not guilty verdict, with respect to any given charge, by

allowing a judge to thereafter use the same conduct

underlying that charge to enhance a defendant’s sentence.

... In determining guilt or innocence, the jury thus serves

not only as a fact-finder but as a means of providing a

defendant with notice as to his possible punishment. And a

judge’s subsequent use of ‘acquitted conduct’ al! but

eviscerates this latter notice function. In _ short, the

unfairness perpetuated by the use of ‘acquitted conduct’ at

sentencing in federal district courts is uniquely

malevolent.”; “[TJhe reality [is that] federal district court

judges are often acting as automatons — mechanically

enhancing sentences with ‘acquitted conduct’ pursuant to

the now ‘advisory’ Sentencing Guidelines. And so, in effect,

the Guidelines, with respect to ‘acquitted conduct,’ remain

very much mandatory. Neither the Fifth nor Sixth

Amendments should tolerate such a practice. But it is not

this mechanical adherence to the Guidelines which makes

unconstitutional the use of ‘acquitted conduct’ to enhance a

defendant’s sentence. That practice is best understood as an

artifact of nearly twenty years of mandatory sentencing

guidelines. In my view, the Constitution forbids judges —

Guidelines or no Guidelines — from using ‘acquitted conduct’

to enhance a defendant’s sentence because it violates his or

(continued...)

In the particular arena of the drug guidelines —

which were not set on the basis of empirica! study or

independent analysis by the Sentencing Commission,

but were simply tied to mandatory statutory

penalties’ ~ the use of acquitted conduct takes

sentencing courts farther away not only from

traditional constitutional premises of an adversarial

justice system, but also from the premise of an ordered

determination of advisory guidelines by a specialized

body. The consequence is a mechanical] application of

punishment ranges based on acquitted conduct, as

Judge Bright explained in his call for the Court’s

intervention regarding this issue. See supra at 14n. 8.

When the reliance and notice factors present in

petitioner’s case are added, it is all the more

appropriate for the Court address the acquitted

conduct punishment issue raised in this case.

Il. THE COURT SHOULD RESOLVE THE

ENTRENCHED CIRCUIT CONFLICT AS TO

APPLICATION OF THE PLAIN ERROR

* (...continued)

her due process right to notice and usurps the jury’s Sixth

Amendment fact-finding role.”).

9 See Gall, 128 S.Ct. at 494 n.2 (“[T]he Sentencing

Commission departed from the empirical approach when

setting the Guidelines range for drug offenses, and chose

instead to key the Guidelines to the statutory mandatory

minimum sentences that Congress established for such

crimes.”); Kimbrough, 128 S.Ct. at 575 (“[T]he Commission

looked to the mandatory minimum sentences set tn the 1986

Act, and did not take account of empirical data and national]

experience.”) (internal quotation and citation omitted).

PREJUDICE TEST TO SENTENCING

ERRORS.

In Gall v. United States, 128 S.Ct. 586, 597 (2007),

the Court characterized the procedural error of failing

to consider the statutory sentencing factors and relying

solely on the guidelines to determine the sentence —the

underlving error in petitioner’s case — as a “significant

error.” See id. (holding that appellate courts must

“ensure that the district court committed no significant

procedural error, such as ... failing to consider the §

3553(a) factors”)

This failure to consider the sentencing statute is

particularly consequential in the drug guideline

context, where the absence of the Sentencing

Commission’s expertise and empirical analysis renders

direct disagreements with the guideline result more

tenable even in the mine run of cases. Kimbrough,

128 S.Ct. at 575 (discussing policy disagreements with

crack guidelines “even in a mine-run case’). Despite

the general significance of the error and the heightened

importance in the drug context, and despite the added

factor in petitioner's case of reliance on acquitted

conduct to the surprise of the defendant who chose to

forego a plea in light of the district court’s assurance of

the binding nature of the jury verdict and findings, the

court of appeals applicd a nearly insurmountable

prejudice test that requires the fortuity of record

evidence of alternative sentence Jeanings by the

district court before the appellate court’s plain error

discretion can be exercised. App. 10a.

In the decision below, the Eleventh Circuit applied

the standard it first set forth in United States uv.

Rodriguez, 398 F.3d 1291 (11th Cir. 2005), in the

context of evaluating “plain (statutory) Booker error.”

In Rodriguez, the Eleventh Circuit held that although

the district court’s application of the guidelines in

mandatory fashion satisfied the first two prongs of the

“plain error’ test, to satisfy the third prong a defendant

must prove a “reasonable probability of a different

result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge.’

Rodriguez, 398 F.3d at 1301. According to the

Eleventh Circuit, if “[t]he record provides no reason to

believe any result is more likely than the other,” or if

the effect of an error on the result in the district

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.

Id. (citing Jones v. United States, 527 U.S. 373, 394-

395 (1999)).

Thecourt of appeals rejected petitioner’s plain error

claim — that the district court, after substantially

enhancing the sentence based on acquitted conduct,

failed to consider any non-guidelinc statutory

sentencing factors — on the sole ground that petitioner

“points to no evidence in the record showing that if the

district court had explicitly considered the § 3553(a)

factors, the court would have imposed a different

sentence.” App. 10a (holding that “neglecting to

consider the § 3553(a) factors” does not affect

substantial rights absent record evidence pointing to

lower sentence).

Four terms ago, when the Solicitor General

responded in opposition to the petition for writ of

certiorari in Rodriguez v. United States, No. 04-1148,

the government acknowledged “a clear and deep

multi-circuit conflict on the proper analysis of plain

Booker error,” but asserted that the Eleventh Circuit's

then newly-crafted plain error prejudice doctrine,

barring plain error relief unless the district court has

made a statement indicating a lower sentence would be

imposed absent the statutory crror, would fade away in

that it had a specific limitation relating to the recent

Booker decision: “(T]he plain-error issue on which the

courts of appeals disagree is largely a transitional one,

because it involves the standard to be applied by

appellate courts in reviewing a limited number of

sentences imposed before Booker.” Brief for the United

States, Rodriguez v. United States, 2005 WL 1210522,

at *18 - *19 (No. 04-1148) (May 2005).

Time has proven the government wrong. Rather

than fading, the counterintuitive prejudice test

established by the Eleventh Circuit, under which the

significance of the sentencing error is rendered

irrelevant in the absence of a district court statement

suggesting a possible lower sentence, has spread to

other types of plain error decisions. See, e.g., United

States v. De La Garza, 516 F.3d 1266, 1270-71 (11th

Cir. 2008) (applying Rodriguez to deny relief where

government plainly breached its plea agreement; “It is,

at best, uncertain whether the Government’s breach

had an effect on his sentence, and therefore we hold

that De La Garza failed to establish plain error. See

Rodriguez, 398 F.3d at 1301.”).”

Thus, the circuit conflict that the government

readily conceded in 2005 persists and grows. See id. at

11-17 (government brief recognizes conflict between

Eleventh Circuit prejudice test, applied by the First,

Fourth, Fifth, and Eighth Circuits, and the less

stringent test applied by the District of Columbia,

Second, Third, Sixth, and Seventh Circuits).

The Eleventh Circuit has not only acknowledged

that its approach to “whether Booker error is plain

error” differed from the approaches of other circuits,

but indeed, it squarely rejected the views of the

Second, Fourth, and Sixth Circuits. 398 F.3d at 1301-

1305. After every circuit eventually weighed in, and

after it became apparent that there was a three-way

circuit split on the issue,’* the Solicitor General urged

i] ~ : ~ “ec

The Court has granted certiorari to review whether “a

forfeited claim that the government breached a plea

agreement is subject to the plain-error standard” under Fed.

R. Crim. P. 52(b). Puckett v. United States, No. 07-9712, __

U.S. __, 2008 WL 647140 (U.S. Oct. 1, 2008).

‘* The First, Fifth, and Eighth Circuits followed the

Eleventh Cuircuit’s approach. See United States vu.

Antonakopoulos, 399 F.3d 68, 80 (1st Cir. 2005); United

States uv. Mares, 402 F.3d 4511, 521 (5th Cir. 2005): United

States v. Pirani, 406 F.3d 543, 552-553 (8th Cir. 2005) (en

(continued...)

this Court to agree to the request for certiorari in

Rodriguez. See Brief for the United States, Rodriguez

v. United States, 2005 WL 1210522, at *19 (agrecing

that “further review 1s warranted” because “[t]here is

a clear and deep multi-circuit conflict on the proper

analysis of plain Booker error.”). While in the

Solicitor’s estimation, the issue of “plain Booker error”

would only “affect a limited number of cases” and

would “be expected to be of steadily decreasing

significance by the time this Court would be likely to

decide this case,” the Solicitor nonetheless asked for

the Court’s guidance on the issue, 1n recognition that

12 (...continued)

banc). The Third and Sixth Circuits followed the Fourth

Circuit, which closely followed the approach of Kotteakos v.

United States, 328 U.S. 750 (1946) — answering the “effect

on the outcome of the proceeding” question simply by

whether the sentence imposed was longer than that which

the defendant could have received based solely on the jury’s

verdict or admitted facts. See United States vu. Hughs, 401

F.3d 540, 548 (4th Cir. 2005); United States v. Davis, 407

F.3d 162, 165 (3d Cir. 2005) (denying petition for rehearing

en banc); United States v. Oliver, 397 F.3d 369, 379-80 (6th

Cir. 2005). The Seventh, Ninth, and D.C. Circuits followed

the Second, holding that absent evidence of how the district

court would have proceeded had it known that the

Guidelines were advisory rather than mandatory, the best

way to determine prejudice was to effect a “limited remand”

to the district court for the district court to specifically

answer that question. See, e.g., United States v. Crosby, 397

F.3d 103, 120 (2d Cir. 2005): United States v. Paladino, 401

F.3d 471, 483 (7th Cir. 2005), United States v. Ameline, 409

F.3d 1073. 1078-1080 (9th Cir. 2005) (en banc); United

States uv. Coles, 403 F.3d 764, 769-71 (D.C. Cir. 2005).

the circuits’ divergent approaches had the potential to

affect other cases which did not simply involve Booker

error:

[E]leven circuits have adopted three broad

approaches, with further variations within each

broad category. Some of the differences among

the courts of appeals illuminate basic

disagreements about the proper approach to

plain-error review, and they therefore have the

potential to affect criminal cases not involving

Booker error. The conflict in the circuits

therefore warrants resolution by this Court.

2005 WL 1210522, at *19. See also Petition of the

United States for Certiorari in Barnett v. United

States, No. 04-5252 (maintaining that Sixth Circuit’s

analysis of the plain error issue was incorrect and that

this Court’s review was necessary).

Notably, however, once the Court denied review in

Rodriguez and Barnett, the Solicitor reversed position.

Despite its recognition of the circuit split’s “potential to

affect criminal cases not involving Booker error,” the

Solicitor began to urge the Court to decline certiorari

in “plain Booker error” cases because the issue was

merely “transitional” and “of increasingly diminishing

importance as the finite set of cases that might be

affected by this Court’s decision dwindles in number.”

See, e.g., Brief for the United States, Mendoza-Torres

v. United States, 2006 WL 849864 (No. 05-7496) (Feb.

28, 2006), at *13. But as the petitioner's case shows,

the Solicitors wiew of “transitional” error, or

“increasingly diminishing importance,” was mistaken.

The circuit conflict as to the third prong of the plain

error test will never be “transitional,” “limited,” or of

“diminishing importance,” for a number of reasons, the

first and foremost being that it derives from a

fundamental disagreement as to the interpretation of

the Court’s decisions in United States v. Dominguez-

Benitez, 542 U.S. 74, 81 (2004), and Jones. The Court

has not considered application of the Dominguez-

Benitez test to the sentencing process. However,

notwithstanding this Court’s holding in Dominguez-

Benitez that the “reasonable probability” test requires

only a probability “sufficient to undermine confidence

in the outcome of the proceeding,” id., 542 U.S. 83,

which “should not be confused with [] a requirement

that a defendant prove by a preponderance of the

evidence that but for the error things would have been

different,” id. at 83 n.9, the Eleventh Circuit has read

Jones in conflict with Dominguez-Benitez to require

tangible proof by way of evidence surpassing the level

of a preponderance, as indeed, they hold that a

“reasonable probability” cannot be established where

the evidence is in equipoise, i.e., where “[t}he record

provides no reason to believe any result is more likely

than the other.”’? While other circuits do not impose

such a “preponderance” showing, this central question

While the Government contended in Rodriguez that the

Eleventh Circuit's analysis was not inconsistent with

Dominguez-Benitez, 2005 WL 849864, at *10, the

government notably did not expressly deny that the

Eleventh Circuit adopted a preponderance standard.

Indeed. the Eleventh Circuit’s holding that an appellant

must show more than that the evidence Is in equipoise is the

very definition of a preponderance standard.

about the meaning of “reasonable probability” is clearly

important in all plain-error cases, including plain-

error-in-sentencing cases beyond the context of a

failure to comply with the post-Booker statutory

mandate as in petitioner’s case.

In light of the Eleventh Circuit’s extension of its

Rodriguez prejudice rule from the “plain Booker error”

to other sentencing contexts, and given the significance

of the procedural error at petitioner’s sentencing, this

case presents an opportunity for the Court to address

this application of Dominguez-Benitez, and resolve the

meaning of a “reasonable probability” of a different

result in sentencing proceedings.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Richard C. Klugh, Jr.

Counsel for Petitioner

Ingraham Building

25 S.E. 2nd Avenue, Suite 1105

Miami, Florida 33131

Tel. (305) 536-1191

October 2008

IN UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-12609

D. C. Docket No. 04-60090 CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

¥.

DEVON HOWARD TOEPFER,

Defendant-Appellant.

No. 06-12718

D. C. Docket No. 04-60090 CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JEFFREY ERIC TOEPFER,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(July 9, 2008)

° Before WILSON, COX and BOWMAN’ Circuit Judges.

Honorable Pasco Bowman, IT, United States Circuit.

Judge for the Eighth Circuit, sitting by designation.

PER CURIAM:

In this consolidated appeal, Devon Howard

Toepfer challenges several of the district court’s

evidentiary rulings as well as the 140-month sentence

the court imposed after a jury found him guilty of

conspiring to manufacture and possess with intent to

distribute marijuana, 21 U.S.C. §§ 841 and 846;

manufacturing and possessing marijuana with intent

to distribute, id. § 841; and distributing diazepam, id.

Jeffrey Eric Toepfer appeals the 123-month sentence

the district court imposed after he pleaded guilty to

conspiring to manufacture and possess with intent to

distribute marijuana, 21 U.S.C. §§ 841 and 846;

manufacturing and possessing marijuana with intent

to distribute, id. § 841; and conspiring to launder

money, 18 U.S.C. § 1956.

I. Devon. We review a district court’s

evidentiary rulings for abuse of discretion, United

States v. Miles, 290 F.3d 1341, 1351 (11th Cir.) (per

curlam), cert. denied, 537 U.S. 1089 (2002), and we

review questions of constitutional law de novo, United

States v. Brown, 364 F.3d 1266, 1268 (11th Cir.), cert.

denied, 543 U.S. 879 (2004). Devon first argues that

the court’s refusal to suppress recordings of his

conversations with confidential informant Mark

Hastings and unindicted co-conspirator Dan Boller

amounted to a violation of his Sixth Amendment right

to confrontation and the Supreme Court’s holding in

Crawford v. Washington, 541 U.S. 36, 68 (2004). In

Crawford, the Court held that the Sixth Amendment

operates to exclude only “testimonial” hearsay of a

declarant who is unavailable at trial and who the

defendant had no prior opportunity to cross-examine.

Id. at 68. Moreover, the Sixth Amendment right to

confrontation “does not bar the use of testimonial

statements for purposes other than establishing the

truth of the matter asserted.” Id. at 60 n. 9; see United

States v. Byrom, 910 F.2d 725, 737 (11th Cir.1990)

(noting that a confidential informant’s statements in a

taped conversation with defendant are admissible to

provide context, so long as the informant’s statements

are not admitted for the truth asserted). Here, the

recorded statements of Hastings and Boller were not

used to prove the truth of the matters asserted in those

statements. Rather, the statements were offered

merely to provide context to Devon’s admissions about

his activities, knowledge, and intent, and thus did not

run afoul of the Confrontation Clause. See, e.g., United

States _v. Hendricks, 395 F.3d 173, 183-84 (3d

Cir.2005). Accordingly, the District Court's admission

of the recordings did not violate Devon’s Sixth

Amendment right to confrontation or the Supreme

Court’s holding in Crawford because the statements

were not offered for the truth of the matters asserted

therein.

Devon also argues that the court’s refusal to

suppress the Hastings and Boller recordings violated

his Sixth Amendment right to counsel because at the

time of the recordings, he was represented in a state

matter. Devon’s argument is unavailing. The Sixth

Amendment nght to counsel is offense-specific and

does not attach to uncharged crimes-even if those

crimes are factually related to the crime for which

formal proceedings have been initiated. Texas v. Cobb,

532 U.S. 162, 173 (2001). Devon was arrested

November 8, 2001, on state misdemeanor charges for

possession of drug paraphernalia. When prosecution on

those charges commenced, his Sixth Amendment nght

to counsel attached with respect to those charges. See

McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (noting

that right to counsel attaches “at or after the initiation

of adversary judicial criminal proceedings” (citations

omitted)). When the state charges were dismissed on

October 24, 2002, however, Devon’s Sixth Amendment

right to counsel on those charges was extinguished. See

United States v. Alvarado, 440 F.3d 191, 196 (4th Cir.),

cert. denied, 127 S.Ct. 81 (2006). The recorded

conversations with Hastings occurred on June 22,

2000, before Devon was represented by counsel on the

state charges. The recorded conversations with Boller

occurred on February 13 and 25, 2003, after the state

charges had been dismissed and Devon’s Sixth

Amendment right to counsel on those charges had been

extinguished. Accordingiy, Devon’s Sixth Amendment

right to counsel with respect to the state charges does

not provide a basis for excluding the Hastings and

Boller recordings from his trial on federal charges.

Devon also contends that admission of the

recordings violated his Fifth Amendment right to

counsel. The Fifth Amendment right to counsel may be

invoked only during custodial interrogation or when

such interrogation is imminent but, unlike the Sixth

Amendment right to counsel, it is not offense-specific.

United States v. Grimes, 142 F.3d 1342, 1348 (11th

Cir.1998), cert. denied, 525 U.S. 1088 (1999). Because

Devon’s recorded statements to Hastings and Boller

were not the product of custodial interrogation, the

Fifth Amendment right to counsel does not provide a

basis for exclusion of this evidence.

To the extent Devon argues that the government

engaged in outrageous misconduct amounting to a due

process violation and requiring exclusion of the

recordings, he has failed to provide any evidence to

support those allegations. See United States v. Russell,

411 U.S. 423, 432 (1973) (requiring proof that

government conduct was a violation of “fundamental

fairness or shocking to the universal sense of justice”

(citations omitted)).

Devon next argues that the district court erred

in refusing to suppress the evidence seized from his

van and his condominium after his November 2001,

arrest on state charges. With respect to the drug

paraphernalia seized from Devon’s van, because Devon

failed to provide any substantive argument on the

merits of this issue in his briefing to this Court,

electing instead to rely on the suppression motions he

filed in the district court, we consider this argument

waived. See Greenbriar, Ltd. v. City of Alabaster, 881

F.2d 1570, 1573 n. 6 (11th Cir.1989) (deeming issue

waived where party failed to include substantive

argument and made only passing reference to the order

appealed from). And even if Devon had not waived this

argument on appeal, there was probable cause to stop

the van and arrest Devon after officers observed the

van’s driver commit a traffic infraction, see United

States v. Holloman, 113 F.3d 192, 194 (11th Cir.1997)

(per curiam) (noting that an otherwise valid traffic stop

is not made illegal when used as subterfuge to advance

drug interdiction efforts), and saw the drug

paraphernalia in plain sight through the van’s

windows, see Horton v. California, 496 U.S. 128, 130

(1990) (holding that officers may seize evidence in

plain view without a warrant).

After Devon was arrested and the paraphernalia

was seized from his van, officers sought a search

warrant for Devon’s condominium. The officers

prepared a search warrant affidavit describing their

extensive experience investigating marijuana grow

houses, the circumstances of Devon's arrest, the drug

paraphernalia recovered from the van, and the fact

that a certified narcotics-detection dog had alerted to

the odor of drugs at the front door of Devon's

condominium unit. The affidavit was sufficient to

establish the probable cause necessary to support the

issuance of asearch warrant for Devon’s condominium.

See, e.g., United States v. Banks, 3 F .3d 399, 402

(11th Cir.1993) (per curiam) (holding that probable

cause is established when drug-trained canine alerts to

drugs), cert. denied, 510 U.S. 1129 (1994). In short, the

district court did not abuse its discretion by admitting

the evidence obtained from the search of Devon’s van

and condominium.

Devon argues that for purposes of calculating his

sentencing range under the advisory guidelines, the

district court was obligated to use the number of

marijuana plants found by the jury in its special

verdict. After carefully reviewing the record,

particularly those pages of the transcript identified in

Devon's brief, we find no support for Devon’s assertion

that the government and the district court consented

to be bound at sentencing by the jury’s determination

of drug quantity in Devon's trial. Moreover, even if

there was an agreement between Devon and the

government, the agreement would not preclude the

district court from fulfilling its obligation under the

Sentencing Guidelines to conduct independent findings

of fact necessary for imposing a reasonable sentence.

Cf. United States v. Forbes, 888 F.2d 752, 754 (11th

Cir.1989) (holding that sentencing court is not bound

by stipulations of fact in plea agreement).

Devon contends that the district court violated

his constitutional rights by imposing a sentence based

on acquitted conduct, on criminal acts committed

outside the relevant statute of limitations, and on a

drug quantity greater than that found by the jury. We

disagree. Because the district court applied the

guidelines in an advisory manner as required under

Booker v. United States, 543 U.S. 220, 264 (2005), and

Devon’s sentence did not exceed the statutory

maximum allowed by the jury verdict, see Rita _v.

United States, 127 S.Ct. 2456, 2465-66 (2007), the

court did not violate Devon’s Fifth or Sixth

Amendment rights by calculating his sentence based

on judge-found facts, including acquitted conduct, see

United States v. Duncan, 400 F.3d 1297, 1304-05 (11th

Cir.), cert. denied, 546 U.S. 940 (2005), criminal acts

outside the statute of limitations period, United States

v. Behr, 93 F.3d 764, 765-66 (11th Cir.1996), and a

drug quantity greater than that found by the jury,

United States v. Chau, 426 F.3d 1318, 1323-24 (11th

Cir.2005) (per curiam).

Nor did the court err by enhancing Devon's

sentence based on his leadership role in the conspiracy

because the government proved by a preponderance

that Devon exercised some degree of control, influence,

or leadership over the organization. See United States

v. Yates, 990 F.2d 1179, 1182 (11th Cir.1993) (per

curiam).

We are unpersuaded by Devon’s argument that

the district court erred by failing to make

particularized findings concerning the drug quantity

for which he was responsible. A “defendant is

accountable for all quantities of [drugs] with which he

was directly involved and, in the case of a jointly

undertaken criminal activity, all reasonably

foreseeable quantities of [drugs] that were within the

scope of the criminal activity that he jointly

undertook.” U.S.S.G. § 1B1.3 cmt. n. 2. The district

court generally must make individualized findings

concerning the scope of criminal activity undertaken by

a defendant before determining the drug quantities

reasonably foreseeable in connection with that level of

activity. United States v. Ismond, 993 F.2d 1498, 1499

(llth Cir. 1993). “If the court does not make

individualized findings, the sentence may nevertheless

be upheld if the record supports the amount of drugs

attributed to a defendant.” Id. Based on our review of

the record, including the trial and_ sentencing

transcripts and the PSI, we conciude that the district

court had ample evidence to support its findings that

Devon was directly involved with and responsible for

the 3,744 marijuana plants found by the district court.

Devon argues for the first time on appeal that

the district court committed procedural sentencing

error under Booker because the court failed to consider

the 18 U.S.C. § 3553(a) factors in calculating his

sentence. We have held that “it 1s the defendant's

burden, in the district court, to object to procedural

irregularities based on Booker. Absent an objection, we

will review such claims for onlv plain error.” United

States v. Ochoa-Garcia, No. 07-11740, 2007 WL

3120315, at *5 (11th Cir. Oct. 26, 2007) (unpublished

per curiam) (adopting the reasoning in United States

v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.2006),

cert. denied, 127 S.Ct. 3043 (2007)); United States v.

Villafuerte, 502 F.3d 204, 208 (2d Cir.2007)

(conducting plain-error review of an unpreserved claim

that the method used to calculate a defendant’s

sentence was unreasonable); United States v. Garcia,

233 F. App’x 311, 312 (4th Cir.2007) (unpublished per

curiam) (same), cert. denied, 128 S.Ct. 1108 (2008);

United States v. Knows His Gun, 438 F.3d 913, 918

(9th Cir.) (same), cert. denied, 547 U.S. 1214 (2006).

Under plain-error review, the defendant must

establish that the district court committed an error,

that the error was plain, and that the error affected his

substantial rights. United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir.), cert. denied, 545 U.S. 1127

(2005). If the defendant can establish these facts, we

may exercise our discretion to notice the forfeited error,

but will do so only if the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings. Id.

Even if we assume that the district court

committed plain error by neglecting to consider the §

3553(a) factors at Devon’s sentencing, Devon cannot

show that the error affected his substantial rights. For

an error to affect substantial rights, it “must have been

10a

prejudicial: It must have affected the outcome of the

district court proceedings.” United States v. Olano, 507

U .S. 725, 734 (1993). Devon points to no evidence in

the record showing that if the district court had

explicitly considered the § 3553(a) factors, the court.

would have imposed a different sentence. Because

Devon cannot show that the error affected his

substantial rights, his argument asserting procedural

sentencing error must fail.

Finally, we decline to consider Devon’s claims of

ineffective assistance of counsel as those claims are

more appropriately raised in a collateral proceeding.

See United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir.), cert. denied, 537 U.S. 1037 (2002).

II. Jeffrey. At his change of plea hearing,

Jeffrey admitted to the offenses outlined in the

superseding indictment but declined to admit to the

number of marijuana plants for which he was

responsible, insisting that there were not more than

1,000 plants anu that the district court must sentence

him based on the number of plants found by the jury in

Devon’s trial.

With the government’s drug-quantity witnesses

present and prepared to testify. Jeffreys attorney

stated at the sentencing hearing, “Based on the PSI in

this case ..., we understand that there would be certain

testimony from witnesses and we are willing to ...

permit the Court to rule on ... what is listed in the PS]

as to both the amount of plants, the leadership role and

the other enhancements.” Tr. of Sent. at 2-3. In

response, the government did not call its drug-quantity

lla

witnesses, abandoned its arguments for a three-level

enhancement under U.S.S.G. § 231.7, and conceded to

a three-level departure for acceptance of responsibility.

The district court then found that the drug quantity

was “correctly computed at ... 5,350 plants. I recognize

that the defense maintains that the Court should

accept the jury verdict in [Devon’s] case of 661 plants,

but I do not.” Id. at 8.

Because Jeffrey invited the district court to rule

on drug quantity based on the 5,350 plants described

in the PSI, electing not to put the government to its

burden of proof at the sentencing hearing, Jeffrey

cannot now complain that the government failed to

present evidence regarding the number of plants for

which he was responsible. See United States v. Stone,

139 F.3d 822, 888 (11th Cir.1998) (per curiam) (noting

that appellate court generally will not review an error

invited by a defendant).

To the extent that Jeffrey raises the same

arguments raised by Devon regarding the district

court's obligation to use the jury's drug-quantity

finding to impose Jeffrey's sentence, the court’s

consideration at sentencing of acquitted conduct and

criminal acts outside the statute of limitations, and the

courts failure to make particularized findings

regarding the extent of Jeffrey's involvement in the

conspiracy, we reject those arguments for the reasons

already explained.

‘The district court did not err by enhancing

Jeffrey’s sentence based on his leadership role in the

conspiracy. Based on the facts in the PSI, the district

12a

court was presented with ample evidence to conclude

that Jeffrey exercised some degree of control, influence,

or leadership over the organization. See Yates, 990

F.2d at 1182.

Finally, we reject Jeffrey's argument that

because the district court failed to adequately consider

the § 3553(a) factors, his sentence is unreasonable.

Assuming that Jeffrey preserved this argument for

appeal, we conclude that the district court adequately

considered the § 3553(a) factors and imposed a

reasonable sentence.

At his sentencing hearing, Jeffrey argued for a

sentence at the low end of the advisory guidelines

range based on his history and characteristics. The

government countered that the sentence should be on

the high end of the guidelines range based on Jeffrey’s

criminal conduct while on supervisory release and his

lack of rehabilitation. After “consider[ing] the

statements of all the parties,” the court imposed a

sentence of 123 months’ imprisonment, a sentence

within the advisory guidelines range Tr. of Sent. at 14.

“[Aj]n acknowledgment by the district court that it has

considered the defendant’s arguments and the factors

in [§ ] 3553(a) is sufficient under Booker.” United

States v. Talley, 431 F.3d 784, 786 (11th Cir.2005) (per

curiam); see also Rita, 127 S.Ct. at 2468 (holding that

a district court's brief statement of reasons for a

within-guidelines sentence was sufficient). Contrary to

Jeffrey's contentions, the record reflects that the

parties presented evidence and argument addressing

the § 3553(a) factors, which the district court

adequately acknowledged and considered in imposing

l3a

Jeffrey's sentence.

For the reasons stated above, we AFFIRM the

conviction and sentence of Devon Howard Toepfer and

the conviction and sentence of Jeffrey Eric Toepfer.

l4a

UNITED STATES DISTRICT COURT

Southern District of Florida

Miami Division

Case Number: 04-60090-Cr- COOKE

UNITED STATES OF AMERICA

DEVON TOEPFER

JUDGMENT IN A CRIMINAL CASE

USM Number: 70721-004

Counsel For Defendant: Fred Haddad, Esq.

Counsel For The United States: Donald Chase

Court Reporter: Robin Dispenzieri

The defendant was found guilty of Counts one, two,

nine, and ten of the Indictment. The defendant is

adjudicated guilty of the following offenses:

TITLE/ NATURE OF OFFENSE COUNT

SECTION OFFENSE ENDED

NUMBER

Title 21,U.S.C. Conspiracy to July 16, 1

§§841(a)(1), manufacture/ 2003

841(b)(1)(A) possess with

& 846 intent to

distribute

marijuana.

Title 21,U.S.C. Manufacture/ April 14, :

§§841(a)(1), possess with 1999

841(b)(1MA) & intent to

18 U.S.C. § 2 distribute

marijuana.

15a

TITLE/ NATURE OF OFFENSE COUNT

SECTION OFFENSE ENDED

NUMBER

Title 21,U.S.C Distribution February 9

§§ 841(a)(1) & of diazepam. 19, 2003

841(b)(2)

Title 21,U.S.C. Distribution February 10

§§ 841(a)(1) & of diazepam. 25, 2003

841(b)(2)

The defendant is sentenced as provided in the following

pages of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

The defendant has been found not guilty on counts 3,

4,5, 8, 11, 14 and 15.

[tis ordered that the defendant must notify the United

States attorney for this district within 30 days of any

change of name, residence, or mailing address until all

fines, restitution, costs and special assessments

imposed by this judgment are fully paid. If ordered to

pay restitution, the defendant must notify the court

and United States attorney of any material changes in

economic circumstances.

Date of Imposition of Sentence:

4/19/2006

Marcia G. Cooke

United States District Judge

April 24, 2006

16a

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be

imprisoned for a term of 140 Months as to counts 1

and 2, and 36 months as to counts 9 and 10. All

counts concurrent.

The defendant is remanded to the custody of the

United States Marshal.

RETURN

I have executed this judgment as follows:

Defendant delivered on to at

, with

a certified copy of this judgment.

UNITED STATES MARSHAL

By:

Deputy U.S. Marshal

17a

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 4 years.

The defendant shall report to the probation

office in the district to which the defendant is released

within 72 hours of release from custody of the Bureau

of Prisons.

The defendant shall not commit another federal, state

or local crime.

The defendant shall not unlawfully possess a controlled

substance. The defendant shall refrain from any

unlawful use of a controlled substance. The defendant

shall submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug tests

thereafter, as determined by the court.

The defendant shall not possess a firearm,

destructive device, or any other dangerous

weapon.

If this judgment imposes a fine or a restitution

obligation, it is a condition of supervised release that

the defendant pay in accordance with the Schedule of

Payments sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as well

as any additional conditions on the attached page.

18a

STANDARD CONDITIONS OF SUPERVISION

l. The defendant shall not leave the judicial

district without the permission of the court or

probation officer;

2. The defendant shall report to the probation

officer as directed by the court or probation officer and

shall submit a truthful and complete written report

within the first five days of each month;

3. The defendant shall answer truthfully all

inquiries by the probation officer and follow the

instructions of the probation officer;

4. The defendant shall support his or her

dependents and meet other family responsibilities;

5. The defendant shall work regularly at a lawful

occupation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

6. The defendant shal] notify the probation officer

at least ten (10) days prior to any change in

residence or employment;

7. The defendant shall refrain from the excessive

use of alcohol and shall not purchase, possess, use,

distribute, or administer any controlled substance or

any paraphernalia related to any _ controlled

substances, except as prescribed by a physician;

8. The defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9. The defendant shall not associate with any

persons engaged in criminal activity, and shall not

associate with any person convicted of a felony unless

granted permission to do so by the probation officer;

10. Thedefendant shall permita probation officer to

visit him or her at any time at home or elsewhere and

19a

shall permit confiscation of any contraband observedin

plain view by the probation officer;

11. The defendant shall notify the probation officer

within seventy-two (72) hours of being arrested or

questioned by a law enforcement officer;

12. The defendant shall not enter into any

agreement to act as an informer or a special agent of a

law enforcement agency without the permission of the

court;

13. As directed by the probation officer, the

defendant shall notify third parties of risks that may

be occasioned by the defendant’s criminal record or

personal history or characteristics, and shall permit

the probation officer to make such notifications and to

confirm the defendant's compliance with such

notification requirement.

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall also comply with the

following additional conditions of supervised release:

The defendant shall participate in an approved

treatment program for mental health/substance abuse

and abide by all supplemental conditions of treatment.

Participation may include _ inpatient/outpatient

treatment. The defendant will contribute to the costs

of services rendered (co-payment) based on ability to

pay or availability of third party payment.

The defendant shall not apply for, solicit, or

incur any further debt, included but not limited to

loans or lines of credit, either as a principal, co-signer

or guarantor, as directly or through any related entity

20a

or organization, without first obtaining permission

from the Court.

The defendant shall provide complete access to

financial information, including disclosure of all

business and personal finances, to the U.S. Probation

Officer.

Self-Employment Restriction: The defendant

shall obtain prior written approval from the Court

before entering into any self-employment.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the Schedule of Payments.

Total Total Fine Total

Assessment Restitution

$400.00 $ $

*Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18,

United States Code, for offenses committed on or after

September 13, 1994, but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay,

payment of the total criminal monetary penalties are

due as follows:

A. Lump sum payment of $400.00 due

21a

unmediately.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during

imprisonment. Allcriminal monetary penalties, except

those payments made through the Federal Bureau of

Prisons’ Inmate Financial Responsibility Program, are

made to the clerk of the court.

The defendant shal! receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

The assessment/fine/restitution is payable to the

CLERK, UNITED STATES COURTS and is to be

addressed to:

U.S. CLERK’S OFFICE

ATTN: FINANCIAL SECTION

301 N. MIAMI AVENUE, ROOM 150

MIAMI, FLORIDA 33128

The assessment/fine/restitution is payable

immediately. The U.S. Bureau of Prisons, U.S.

Probation Office and the U.S. Attorney’s Office

are responsible for the enforcement of this order.

Payments shall be apphied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) community restitution,

(6) fine interest (7) penalties, and (8) costs, including

cost of prosecution and court costs.

22a

UNITED STATES DISTRICT COURT

Southern District of Florida

Case Number: 04-60090-Cr-COOKE

UNITED STATES OF AMERICA

DEVON TOEPFER

District Court’s Sentencing Ruling

(Excerpt from Transcript of April 19, 2006

Sentencing Hearing)

[DEFENSE COUNSEL]: ... When we started this

trial, we had a situation where we agreed, because

the plea didn’t go through, that the jury was going to

make the factual determinations as to the amount of

plants, a la Apprendi and those line of cases.

THE COURT: I think everybody knows, whoever

has had this issue before me, that if a defendant

pleads guilty and leaves it up to the Court to make

the determination as to the amount of plants, et

cetera involved, then I don’t think you have issues

[ think you do have issues, particularly in these

cases where we have these very specific verdict

forms, which we had in this case, of trying to go

outside of that range as is calculated. Now, there is

also the school of thought that that jury verdict form

is only for statutory purposes and does not affect

guideline range discussions. * * * [Sent. Tr. at 4.]

23a

THE COURT: I find that the base offense level as

contained in the PSI is correctly computed. I believe

that 1t took into accuourt Vne specific sury “vertints ‘em

this case, as well as — let me back up a little bit.

I do not believe — I do not behieve the base offense

level of 22 is correct in this case. I! don’t believe it

takes into account the entire substantive, as well

the conspiracy conduct. *** [Sent. Tr. at 22.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.