Case: 14-15568   Date Filed: 06/04/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15568
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:89-cr-01008-MP-GRJ-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus

THEODORE DWAYNE WHITFIELD,

                                                         Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                               (June 4, 2015)

Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       In 1989, Theodore Dwayne Whitfield pleaded guilty to conspiring to

distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841 and 846. The

District Court sentenced him to a prison term of 327 months to be followed by a

five-year term of supervised release. The latter term began on April 12, 2013,

following his release from prison.

       On August 14, 2014, Whitfield was caught producing marijuana and

possessing a controlled substance; two weeks later, his probation officer petitioned

the District Court to revoke Whitfield’s supervised release for violating the

mandatory conditions of the release—that he refrain from violating federal or state

law. On December 4, 2014, the District Court held a hearing on the petition.

Whitfield admitted the violation.1 The following colloquy between the court,

defense counsel, and Whitfield then took place:

       THE COURT:                    Let me find the guidelines.

       DEFENSE COUNSEL: Your Honor, I don’t believe there are any
                        guidelines based upon the age of the conviction
                        and the year in which it was imposed. I have had
                        discussions with probation on this issue.

       THE COURT:                    The report doesn’t show any, either, but your
                                     sentence could be revoked and you could be
                                     sentenced up to five years. Do you understand
                                     that, sir?

       THE DEFENDANT:                Yes, sir.

       1
         Whitfield pleaded nolo contendere, and the court accepted the plea because a state
prosecution was pending against Whitfield.
                                                 2
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Doc. 209, at 3. Defense counsel urged the court to impose a short sentence of

incarceration—no more than three to six months. The court imposed a thirty-six

month sentence of confinement, stating: “In imposing [the] sentence, I have

considered the guidelines, policy statements, and other matters required by this

Court.” 

The court then asked defense counsel whether the defendant

had any objections to “any matters that have transpired here today or [any] motions

and objections outstanding as to which I have not addressed myself.” 

Counsel replied: “Just as to our request for self-surrender.” 

the sentence the District Court imposed, claiming the

following procedural irregularities. He argues that the court erred by failing to

calculate and consider the grade of his violation and resulting guideline sentence

range before imposing sentence; that the guideline sentence range, had it been

calculated, would have called for a sentence of less than thirty-six months; and that

the court erred in failing to state a reason for the “upward variance.”

      When, as here, the defendant has not presented to the sentencing court

objections he raises on appeal, we review his objections for plain error. United

States v. Vandergrift, 

, 1307 (11th Cir. 2014). Under plain error

review, the defendant must show: error, that is plain, and that affects substantial

rights. 

then exercise our discretion to notice a forfeited error, but only

      2
          The court expressly declined to impose a term of supervised release.
                                                3
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if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. 

can include errors such as failing to calculate, or improperly

calculating, the guidelines sentence range; treating the guidelines as mandatory;

failing to consider the sentencing objectives of 18 U.S.C. § 3553(a); selecting a

sentence based on clearly erroneous facts; or failing to adequately explain the

chosen sentence. Gall v. United States, 

, 51, 

, 597, 

(2007).

      The doctrine of invited error is implicated when a party induces or invites

the district court into making an error. United States v. Love, 

, 1157

(11th Cir. 2006) (per curiam). Where invited error exists, we are precluded from

invoking the plain-error rule. 

occurred here. Whitfield’s counsel informed the court that

there were no applicable sentencing guidelines and used the lack of guidelines to

recommend a short sentence. Hence, Whitfield cannot argue that the error he now

asserts requires our review.

      AFFIRMED.




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