USCA11 Case: 20-13606 Date Filed: 12/21/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13606
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN BLASH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:19-cr-00051-TES-CHW-1
____________________
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2 Opinion of the Court 20-13606
Before JILL PRYOR, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
Jonathan Blash appeals his conviction and 27-months sen-
tence for being a felon in possession of a firearm, in violation of
18
U.S.C. §§ 922(g)(1) and 924(a)(2), arguing that the district court
erred by not dismissing his case for violating the Speedy Trial Act,
see
18 U.S.C. § 3161(c)(1), and by applying the four-level enhance-
ment under U.S.S.G. § 2K2.1(b)(6)(B). For the reasons stated be-
low, we affirm.
I.
We review de novo the denial of a defendant’s Speedy Trial
Act motion. United States v. Hughes,
840 F.3d 1368, 1378 (11th
Cir. 2016).
The Speedy Trial Act provides that a criminal defendant
who pleads not guilty must be tried within seventy days of either
the filing date of the indictment or his initial appearance in court,
“whichever date last occurs.”
18 U.S.C. § 3161(c)(1). Therefore,
“[w]hen a defendant is indicted prior to his arrest, the seventy-day
pretrial period runs from the date of his arraignment . . . . When
the defendant is arrested prior to indictment, . . . the seventy-day
pretrial period runs from the date of his indictment.” United States
v. Hernandez,
724 F.2d 904, 905 (11th Cir. 1984) (quoting United
States v. Haiges,
688 F.2d 1273, 1274 (9th Cir. 1982)). “Where an
indictment has previously issued, Congress clearly intended that
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20-13606 Opinion of the Court 3
the Speedy Trial Act clock would not begin running until a defend-
ant appeared before a judicial officer in the district where charges
were pending.” See United States v. O’Bryant,
775 F.2d 1528, 1531
& n.3 (11th Cir. 1985) (holding that, although a defendant was in-
dicted in September 1982, the seventy-day window did not begin
until he first appeared in the relevant court in March 1984).
Here, the district court did not err by finding that there was
no Speedy Trial Act violation because the seventy-day window be-
gan once Blash made his initial appearance, as the Speedy Trial
Act’s plain text and our precedent make clear. Because Blash was
indicted prior to his arrest, the seventy-day window in which to
bring him to trial began after his arraignment, which was the same
day he filed his motion to dismiss. We therefore affirm as to this
issue.
II.
Under the invited error doctrine, if a defendant “induces or
invites the district court into making an error,” then we are pre-
cluded from reviewing that error on appeal. United States v. Bran-
nan,
562 F.3d 1300, 1306 (11th Cir. 2009) (quoting United States v.
Stone,
139 F.3d 822, 838 (11th Cir. 1998)). “[W]here a party invites
the trial court to commit error, he cannot later cry foul on appeal.”
Id. (quoting United States v. Harris,
443 F.3d 822, 823–24 (11th Cir.
2006)). However, “ambiguous statements or representations” do
not trigger the invited error doctrine. United States v. Hayes,
762
F.3d 1300, 1310 n.6 (11th Cir. 2014).
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4 Opinion of the Court 20-13606
Arguments that were not raised in the district court are re-
viewed for plain error. United States v. Bradley,
644 F.3d 1213,
1293 (11th Cir. 2011). “Plain error occurs ‘if (1) there was error,
(2) that was plain, (3) that affected the defendant’s substantial
rights, and (4) that seriously affected the fairness, integrity, or pub-
lic reputation of judicial proceedings.’” United States v. Longoria,
874 F.3d 1278, 1281 (11th Cir. 2017) (quoting United States v.
Wright,
607 F.3d 708, 715 (11th Cir. 2010)).
In challenges to sentencing decisions, we review a district
court’s factual findings for clear error. United States v. Bishop,
940 F.3d 1242, 1250 (11th Cir. 2019). To be clearly erroneous, a
review of the entire record must leave us with the “definite and
firm conviction” that a mistake has been made. United States v.
McPhee,
336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United
States v. Engelhard Corp.,
126 F.3d 1302, 1305 (11th Cir. 1997)).
Where there are two reasonable interpretations of the facts, “the
factfinder’s choice between them cannot be clearly erroneous.”
United States v. Almedina,
686 F.3d 1312, 1315 (11th Cir. 2012)
(quoting United States v. Izquierdo,
448 F.3d 1269, 1278 (11th Cir.
2006)).
If the defendant objects to the factual basis of his sentence,
the government must prove that fact by a preponderance of the
evidence. United States v. Aguilar-Ibarra,
740 F.3d 587, 592 (11th
Cir. 2014). When making factual findings at sentencing, the court
may look to “undisputed statements in the presentence report, or
evidence presented at the sentencing hearing.” United States v.
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20-13606 Opinion of the Court 5
Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). The failure to object
with specificity and clarity to statements in the presentence inves-
tigation report (“PSI”) “renders those statements undisputed and
permits the sentencing court to rely upon them without error even
if there is an absence of supporting evidence.” Aguilar-Ibarra, 740
F.3d at 592 (quoting United States v. Beckles,
565 F.3d 832, 844
(11th Cir. 2009)).
A four-level enhancement is applied to the U.S. Sentencing
Guidelines’ base offense level if the defendant “used or possessed
any firearm or ammunition in connection with another felony of-
fense.” U.S.S.G. § 2K2.1(b)(6)(B). This enhancement automatically
applies where the connected felony offense is for drug trafficking
and “the firearm is found in close proximity” to drugs or drug par-
aphernalia. See Bishop, 940 F.3d at 1250 (emphasis in original)
(quoting U.S.S.G. § 2K2.1 cmt. n.14(B)). While the phrase “drug
trafficking offense” is not defined by section 2K2.1, we have
adopted the definition of that phrase in section 2L1.2 for the pur-
poses of applying section 2K2.1. See United States v. Martinez,
964
F.3d 1329, 1334 & n.2 (11th Cir. 2020). Under that definition, a drug
trafficking offense is “an offense under federal, state, or local law
that prohibits the . . . possession of a controlled substance (or a
counterfeit substance) with intent to . . . distribute.” U.S.S.G. §
2L1.2 cmt. n.2. The phrase “another felony offense” is defined to
include any federal offense punishable by more than one year im-
prisonment, regardless of whether a criminal charge is brought or
a conviction is obtained. Id. § 2K2.1 cmt. n.14(C).
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6 Opinion of the Court 20-13606
Possession of less than five kilograms of marijuana with in-
tent to distribute is punishable under federal law by up to five years’
imprisonment.
21 U.S.C. § 841(a), (b)(1)(D). Intent to distribute
can be shown by the amount of drugs found and the presence of
other items commonly used for distribution, such as scales. United
States v. Poole,
878 F.2d 1389, 1392 (11th Cir. 1989); see also United
States v. Mercer,
541 F.3d 1070, 1076 (11th Cir. 2008) (holding that
the presence of plastic bags also indicates the intent to distribute).
Here, Blash invited any error the district court may have
made by implicitly finding that the substance seized from his apart-
ment was marijuana because, at sentencing, he unambiguously
characterized the substance as marijuana and argued that it was for
personal use. But even if Blash did not invite this alleged error,
plain error review applies because he raises this argument for the
first time on appeal. We conclude that the district court did not
plainly err by implicitly finding that the substance was marijuana
because Blash neither disputed the statement in the PSI stating that
the police confirmed the substance seized in his apartment was ma-
rijuana nor did he dispute the lab report confirming that it was ma-
rijuana.
Additionally, the district court did not clearly err by finding
that Blash possessed marijuana with intent to distribute because
this was a reasonable interpretation of the facts. A scale, baggies,
and a credit card machine were found near a large amount of ma-
rijuana, specifically 64.9 grams. The government also presented
evidence that Blash sold marijuana to a confidential informant.
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20-13606 Opinion of the Court 7
Finally, the district court did not err by applying the four-
level enhancement under section 2K2.1(b)(6)(B) because this pro-
vision automatically applies where, as here, the connected felony
offense was drug trafficking and the firearm was found in close
proximity to drugs. Possession of marijuana with intent to distrib-
ute is a federal crime and, because marijuana is a controlled sub-
stance under federal law, it is also a drug trafficking offense under
the Sentencing Guidelines.
III.
Accordingly, for the reasons discussed, we affirm Blash’s
conviction and sentence.
AFFIRMED.
