Case: 19-11388    Date Filed: 12/20/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11388
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:18-cr-00089-RV-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,


                                   versus

DEMETRICE A. THOMAS,
a.k.a. Demetrius Thomas,
a.k.a. Peabody,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 20, 2019)

Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:
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      Demetrice Thomas appeals from his 234-month total sentence for conspiracy

to distribute a substance containing cocaine, maintaining a drug premises, and

possessing with intent to distribute a substance containing cocaine. On appeal,

Thomas argues that: (1) the district court erred by making a cocaine quantity finding

based on the undisputed facts in the Presentence Investigation Report (“PSI”)

because factual findings must be reliably proved to a judge or jury; and (2) the

district court plainly erred by applying a two-level sentencing enhancement under

U.S.S.G. § 3C1.2 for Thomas’s flight by car from the police because his conduct did

not meet the standard for reckless endangerment. After careful review, we affirm.

      We review a district court’s factual determination of the drug quantity

attributable to a defendant for clear error. United States v. Rodriguez, 

, 1296 (11th Cir. 2005). We also review the district court’s interpretation of

U.S.S.G. § 3C1.2 de novo. United States v. Wilson, 

, 1247 (11th Cir.

2004). However, when a defendant raises an argument for the first time on appeal,

we review it for plain error. United States v. Sammour, 

, 1336 (11th

Cir. 2016). Specific objections are required at the district court to provide the district

court “the opportunity to consider (and if necessary correct) them.” United States v.

Carpenter, 

, 1238 (11th Cir. 2015). To establish plain error, the

defendant must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. United States v. Turner, 

, 1276 (11th Cir. 2007). If


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the defendant satisfies these conditions, we may exercise our discretion to recognize

the error only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. 

explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no precedent

from the Supreme Court or this Court directly resolving it.” United States v. Castro,

, 1253 (11th Cir. 2006) (quotations omitted).

      First, we find no merit to Thomas’s claim that the district court erred in

making the cocaine quantity finding based on the undisputed facts in the PSI. For

starters, sentencing courts are permitted to make factual findings based on

undisputed statements in the PSI. United States v. Davis, 

, 1303 (11th

Cir. 2009) (holding that the district court did not make impermissible findings of

fact at sentencing when the defendant did not object to the facts in the PSI). Indeed,

it is clear under our case law that when a defendant fails “to object to allegations of

fact in a PSI [the defendant] admits those facts for sentencing purposes.” United

States v. Wade, 

, 1277 (11th Cir. 2006). It is also well-established

that the failure to object to a district court’s “factual findings precludes the argument

that there was error in them.” 

the PSI “must be asserted with

specificity and clarity” or else the objection is waived. United States v. Bennett, 

, 832-33 (11th Cir. 2006) (discussing challenges made to a PSI for the first

time on appeal and finding them waived).


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       Here, because Thomas is objecting to the drug quantity calculation for the first

time on appeal, we review only for plain error, and can find none. See 

. As the record reflects, the district court did not plainly err when it

calculated Thomas’s base offense level and imposed a sentence based on a quantity

of drugs determined by relying on the undisputed facts in the PSI. The PSI clearly

provided that the conspiracy involved at least 100 kilograms of cocaine. Thomas

did not raise any objections in writing. When given an opportunity at his sentencing

hearing to object to the factual conclusions of the PSI or its use in sentencing,

Thomas affirmed its accuracy. See 

. In short, Thomas

waived any challenge to the district court’s fact finding by not raising an objection

there, and cannot show, under our case law, that the district court plainly erred by

making a drug quantity finding based on the undisputed facts in the PSI. 1

       We are also unpersuaded by Thomas’s claim that the district court plainly

erred by applying an enhancement under § 3C1.2 for Thomas’s flight by car. A two-

level enhancement applies if “the defendant recklessly created a substantial risk of

death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer.” U.S.S.G. § 3C1.2. We’ve held that “flight alone is insufficient


1
  To the extent Thomas claims he instructed his attorney to object to any quantity of cocaine above
five-and-a-half kilograms, he says in his reply brief that he is not pursuing an ineffective-assistance
claim here. In any event, it would be premature to address an ineffective-assistance-of-counsel
claim on direct appeal because the record is not sufficiently developed. See Massaro v. United
States, 

, 504–05 (2003) (holding that claims of ineffective assistance of counsel
ordinarily should be brought through a motion under 28 U.S.C. § 2255, rather than direct appeal).
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to warrant an enhancement under” § 3C1.2. 

(finding no

reckless endangerment resulted from a flight on foot). Instead, we look for “gross

deviation from the standard of reasonable care.” United States v. Washington, 

, 1267-68 (11th Cir. 2006) (comparing the risk created in a flight by car as

greater than flight on foot). When a person is “[d]riving a car at high speed in an

area where people are likely to be found,” there is reckless disregard for others’

safety. 

      Again, because Thomas failed to raise any objections during sentencing to the

§ 3C1.2 enhancement, we review his argument for plain error, and can find none.

See 

. According to the undisputed facts in the PSI,

Thomas drove away when officers approached the residence, officers engaged their

flashing blue lights, and Thomas continued at a high speed and escaped. Because

Thomas was driving away from a residence in a residential area in a car at a high

speed, he was aware of a substantial risk his conduct posed to others’ safety. See

. Thomas has not pointed to any on-point binding

precedent indicating that it is plain error to apply the enhancement to these facts.

. Accordingly, the district court did not plainly err in

enhancing Thomas’s sentence under § 3C1.2, and we affirm.

      AFFIRMED.




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