USA v. Anton Dame

Filing

Opinion issued by court as to Appellant Anton Lemar Dames. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-12988

Date Filed: 02/18/2014

Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12988
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20796-DLG-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTON LEMAR DAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 18, 2014)

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.
PER CURIAM:

Case: 12-12988

Date Filed: 02/18/2014

Page: 2 of 7

Anton Lemar Dames appeals his convictions and 120-month sentences for
distributing cocaine within 1,000 feet of a public playground and possession with
intent to distribute 500 grams or more of cocaine within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). Dames asserts
several issues on appeal, which we address in turn. After review, we affirm
Dames’ convictions and sentences.
I. GUILTY PLEA WITHDRAWAL
Dames contends the district court improperly vacated his guilty plea because
he attempted to enter an Alford 1 plea. He claims the district court misinterpreted
his protest of innocence to be a request to withdraw his guilty plea. Dames asserts
the district court failed to evaluate the totality of the circumstances to determine
whether Dames showed a fair and just reason for the withdrawal. Dames contends
nothing in the record demonstrates his withdrawal of the guilty plea was knowing,
intelligent, or voluntary.
We have rejected the argument that after a district court accepts a guilty
plea, the district court’s discretion to set the plea aside is limited. United States v.
Gomez-Gomez, 822 F.2d 1008, 1010 (11th Cir. 1987). To safeguard the rights of a
defendant, the district court’s discretion to accept a guilty plea is confined by Rule
11, and “[p]roper operation of these safeguards demands that the judge retain broad

1

North Carolina v. Alford, 400 U.S. 25 (1970).
2

Case: 12-12988

Date Filed: 02/18/2014

Page: 3 of 7

discretion to set a guilty plea aside, at least until he has fully discharged his Rule
11 responsibilities.” Id. at 1011. “When a defendant attempts to couple a guilty
plea with an assertion of facts that would negate his guilt, a judge may properly
treat this assertion as a protestation of innocence. Though a judge may enter
judgment upon a guilty plea under these circumstances, he is not required to do
so.” Id. (citing Alford, 400 U.S. at 38 nn. 10, 11). We have concluded “when a
defendant casts doubts upon the validity of his guilty plea by protesting his
innocence or by making exculpatory statements, the court may resolve such doubts
against the plea.” Id.
The district court did not abuse its discretion when it set aside Dames’ guilty
plea. See id. at 1010 (reviewing a district court’s decision to set aside a guilty plea
for an abuse of discretion). At the post-plea sentencing hearing, Dames asserted
his innocence and told the district court that he was not guilty of the offense to
which he pled guilty. The district court specifically inquired as to whether Dames
believed he was guilty, and when Dames asserted that he was innocent, the district
court exercised its discretion to set aside the guilty plea and take the matter to trial.
Although Alford permits a defendant to plead guilty while protesting his
innocence, a defendant does not have an absolute right to plead guilty in the first
place. Id. at 1010-11. Dames’ strong protestation of his innocence cast doubt on

3

Case: 12-12988

Date Filed: 02/18/2014

Page: 4 of 7

the validity of his guilty plea, and the district court had the discretion to resolve
such doubt against the plea. See id. at 1011.
II. PRISON CLOTHES
Dames argues his right to a fair trial was violated when he was tried while
wearing identifiable prison clothing. The Government brought the issue to the
attention of the district court, which observed the error, but did not engage Dames
in a colloquy to determine whether he knew he had a right to wear other clothes.
Even if the district court erred by permitting Dames to be tried while
wearing prison garb, Dames invited the error. See United States v. Brannan, 562
F.3d 1300, 1306-07 (11th Cir. 2009) (explaining if a defendant not only fails to
object at the district court level, but by his words and conduct actively encouraged
the district court’s commission of an alleged error, the doctrine of invited error
precludes review of the issue entirely). The Government attorney raised the issue
to the district court that Dames was wearing prison clothes before the trial started.
The district court asked whether Dames or his counsel had an issue with his
clothing, and both responded that they had no problem. Thus, Dames invited any
potential error committed by the district court, and review of the issue by this
Court is precluded. See id.

4

Case: 12-12988

Date Filed: 02/18/2014

Page: 5 of 7

III. PRIOR CONVICTION
Dames argues that, pursuant to Alleyne v. United States, 133 S. Ct. 2151
(2013), his sentences were illegal because they were based on an increased
mandatory minimum because of his prior felony drug conviction. He contends his
ten-year mandatory minimum sentences, 21 U.S.C. §§ 841(b)(A) (B)(ii), 851, were
unconstitutional because the district court raised the mandatory minimum sentence
without submitting the “element” of the prior drug conviction to the jury.
Although Dames acknowledges Alleyne stated it did not disturb the Supreme
Court’s previous holding in Almendarez-Torres v. United States, 523 U.S. 224
(1998), he argues the same principles espoused in Alleyne must supersede the
holding in Almendarez-Torres because the prior conviction was a factor that raised
the mandatory minimum sentence.
The district court did not commit plain error 2 by enhancing Dames’ sentence
because of his prior felony drug conviction. The Supreme Court stated in Alleyne
that its decision did not reach the issue of whether prior convictions must be
proved to a jury, and thus, the decision in Almendarez-Torres remained
undisturbed. See Alleyne, 133 S. Ct. at 2160 n.1. The Supreme Court held in
Almendarez-Torres that a prior conviction is not considered an element of a crime,

2

Dames did not object to his sentence on this basis in the district court, and we review
sentencing objections based on Alleyne that were not preserved before the district court for plain
error. United States v. McKinley, 732 F.3d 1291, 1295-96 (11th Cir. 2013).
5

Case: 12-12988

Date Filed: 02/18/2014

Page: 6 of 7

and it does not have to be proven to a jury beyond a reasonable doubt. 523 U.S. at
247. As Almendarez-Torres has not been overruled, the district court did not
commit plain error by applying the § 851 enhancement based on Dames’ prior
conviction, resulting in his total sentence of 120 months’ imprisonment.
IV. SENTENCE MANIPULATION
Dames contends the district court abused its discretion by not reducing his
sentence because the Government engaged in sentencing factor manipulation. He
asserts that by continuing to send the confidential source to purchase greater
quantities of cocaine after he had committed the principal crime, the Government
engaged in sentencing manipulation. Had the Government arrested him on
September 22, 2012 instead of November 2, 2012, he would have faced a different
mandatory minimum based on drug quantity.
“[S]entencing factor manipulation occurs when the government’s
manipulation of a sting operation, even if insufficient to support a due process
claim, requires that the manipulation be filtered out of the sentencing calculus.”
United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[T]he
government must engage in extraordinary misconduct” for a sting operation to
constitute sentencing factor manipulation. Id. at 1271. The party raising the
defense of sentence factor manipulation bears the “burden of establishing that the

6

Case: 12-12988

Date Filed: 02/18/2014

Page: 7 of 7

government’s conduct is sufficiently reprehensible to constitute sentencing factor
manipulation.” Id.
Dawes did not meet his burden of showing the Government committed
sentencing factor manipulation. 3 The Government engaged in a sting operation to
explore the extent of Dames’ criminal activity and drug trafficking network by
increasing the amount of drugs requested, which is not “extraordinary
misconduct.” See id. at 1271. We have held that neither the use of a large drug
quantity of drugs in a reverse sting operation nor the use of one type of drug over
another drug, which caused a difference in sentence, constituted sentencing factor
manipulation. See United States v. Williams, 456 F.3d 1353, 1370-71 (11th Cir.
2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85
(2007) (holding the use of a drug that carries a higher sentence rather than another
drug does not amount to sentencing factor manipulation); United States v. Sanchez,
138 F.3d 1410, 1414 (11th Cir. 1998) (holding, in a case of a reverse sting
operation, the use of a large amount of drugs did not amount to sentencing factor
manipulation).
AFFIRMED.

3

Dames’ arguments regarding sentencing entrapment and partial entrapment fail as a
matter of law because this Court does not recognize either defense. See Ciszkowski, 492 F.3d at
1270.
7