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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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,
V.

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)

1V
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

Vv

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

2

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

3

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

4

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.

~

oO

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

6

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

9
-

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.

q

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

8

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.

9

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...)

10

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.”).

11

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).

LZ

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...)

13

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.””).

14

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...)

15

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).

16

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

17

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)

18

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

19

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...)

20

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).

21

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.

22

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.

23

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

la

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.

2a

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

3a

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

4a

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

5a

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

6a

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

7a

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

8a

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

9a

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
We
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

/s/ Marcia G. Cooke ©
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

Vv

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.]

as

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0745%3A1. Public record. Not legal advice.