Case: 14-10279   Date Filed: 09/09/2014   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-10279
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:05-cr-00296-CB-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

MARLON JERELL DAFFIN,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Alabama
                     ________________________

                           (September 9, 2014)
                Case: 14-10279       Date Filed: 09/09/2014       Page: 2 of 4


Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:

       Marlon Daffin appeals the district court’s order revoking his supervised

release and resentencing him to 24-months imprisonment. Daffin argues that his

sentence is procedurally unreasonable because the district court erred in calculating

his guidelines range. Although Daffin is correct that the district court plainly erred

in calculating his guidelines range 1—something the United States does not

dispute—that error did not affect his substantial rights. Therefore, after careful

review of the record and the parties’ briefs, we affirm.

       Because Daffin raises his objections to the district court’s sentencing

calculations for the first time on appeal, our review is for plain error. United States

v. Frazier, 

, 1282 (11th Cir. 2010). Plain-error review requires that:

(1) an error occurred; (2) the error was plain; and (3) the error affected the

defendant’s substantial rights. United States v. Bennett, 

, 831 (11th

Cir. 2006) (per curiam). If those three conditions are met, we can then exercise our

discretion to “notice the forfeited error if the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 

“A substantial

right is affected if the appealing party can show that there is a reasonable

1
 Chapter 7 of the United States Sentencing Guidelines (USSG), which addresses sentences for
violations of supervised release, emphasizes reasons that may exist for departing from the range
of imprisonment set out in the Revocation Table, beyond those that might exist at the time the
original sentence is imposed. See USSG § 7B1.4 comment. (nn. 1–6).
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probability that there would have been a different result had there been no error.”

      In reviewing the reasonableness of a sentence, we consider whether the

district court committed a procedural error, such as improperly calculating the

guidelines range. Gall v. United States, 

, 51, 

, 597

(2007). However, a guideline range miscalculation does not necessarily affect a

defendant’s substantial rights. See, e.g., United States v. Pantle, 

,

1177–78 (11th Cir. 2011) (per curiam). In Pantle, the district court’s chosen

sentence was outside the correct guideline range, but we held that the error did not

affect the defendant’s substantial rights, in part because the sentencing court could

have imposed the same sentence despite the miscalculation. 

Pantle, although the district court plainly erred in this case in

determining Daffin’s guidelines range, this error did not affect his substantial

rights. The district court told Daffin at a previous revocation hearing that another

violation would result in “the maximum sentence that [it] can impose in the

penitentiary,” 24-months imprisonment. See 18 U.S.C. § 3583(e)(3). At his

second revocation hearing, the one at issue here, the district court noted Daffin’s

extensive criminal history and its own leniency after his first violation of

supervised release. The court stated that the 24-month sentence Daffin was warned

about was appropriate, although it mistakenly stated that the sentence was within


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the guidelines range. The court sentenced him to the statutory maximum, as it

previously had stated it would if he violated his supervised release terms again.

Therefore, Daffin has failed to demonstrate a reasonable probability that he would

have received a different sentence if the district court had not erred in its

calculation of the applicable guideline range. See 

.

Because Daffin cannot show that the plain error has affected his substantial rights,

we affirm.

      AFFIRMED.




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