United States v. Shawn Lamont Hollis ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11060
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00264-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN LAMONT HOLLIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 16, 2016)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Shawn Lamont Hollis appeals his 33-month sentence of imprisonment after
pleading guilty to trafficking in counterfeit Viagra. He argues that the district
court erred in calculating his guideline range under U.S.S.G. § 2B5.3. For the
reasons set forth below, we affirm.
I.
Hollis pled guilty to one count of trafficking in a counterfeit drug, in
violation of 18 U.S.C. § 2320(a)(4). The remaining five counts charged in the
indictment were dismissed. As part of Hollis’s negotiated plea agreement, the
parties agreed to recommend that Hollis receive a one-level downward variance at
sentencing for his expeditious guilty plea.
Before sentencing, a probation officer prepared a presentence investigation
report (“PSR”), which calculated a guideline range of 37 to 46 months of
imprisonment based on a total offense level of 19 and a criminal-history category
of III. In calculating Hollis’s offense level, the PSR started with a base offense
level of eight, U.S.S.G. § 2B5.3(a), added twelve levels because the “infringement
amount” was at least $280,000, id. § 2B5.3(b)(1)(B),1 added two levels because the
offense involved a counterfeit drug, id. § 2B5.3(b)(5), and subtracted three levels
because Hollis timely and fully accepted responsibility, id. § 3E1.1.
1
Under U.S.S.G. § 2B5.3(b)(1)(B), if the infringement amount exceeds $5,000, the
increase is determined by the loss table in § 2B1.1 for fraud and theft offenses.
2
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Hollis’s arguments on appeal relate to the PSR’s calculation of the
infringement amount. The infringement amount serves “as a principal factor in
determining the offense level for intellectual property offenses,” and it “should
reflect the nature and magnitude of the pecuniary harm caused by [the defendant’s]
crimes.” Id. § 2B5.3 cmt. backg’d. The infringement amount is calculated by
multiplying (1) the number of “infringing items” (here, the counterfeit drugs) by
(2) the “retail value” 2 of either (a) the “infringed item” (here, the real drugs) or
(b) the infringing item. See id. § 2B5.3 cmt. n.2.
Whether the retail value of the infringed item or the infringing item is used
depends on which value “is a more reasonable estimate of the resulting pecuniary
harm.” Id. § 2B5.3 cmt. backg’d. The Sentencing Commission has determined
that the retail value of the infringed item is a more reasonable estimate of the
resulting pecuniary harm in the specific situations listed in Application Note 2(A)
of the commentary to § 2B5.3, including where the infringing item “is, or appears
to a reasonably informed purchaser to be, identical or substantially equivalent to
the infringed item.” See id. 2B5.3 cmt. n.2(A)(i) & backg’d. In a case not covered
by Application Note 2(A), the Commission has determined that the retail value of
2
“Retail value” is defined as “the retail price of that item in the market in which it is
sold.” U.S.S.G § 2B5.3 cmt. n.2(C).
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the infringing item is a more reasonable estimate of the resulting pecuniary harm.
Id. § 2B5.3 cmt. n.2(B) & backg’d. 3
Here, the PSR calculated an infringement amount of at least $280,000,
which corresponds to a twelve-level increase under the loss table in § 2B1.1.
According to the PSR, Hollis was responsible for a total of 9,520 counterfeit
Viagra and Cialis pills. The PSR multiplied that number by a “conservative
average” retail price of $29.50 per pill, which was based on an average of the retail
prices for the generic and name-brand versions of these drugs. In other words, the
PSR used the retail price of the infringed items to calculate the infringement
amount. However, the PSR contains no specific finding that the counterfeit drugs
were substantially equivalent to the infringed item. See id. § 2B5.3 cmt. n.2(A)(i).
Using similar calculations, the PSR also determined that Hollis owed a total of
$240,720 in restitution to the manufacturers of Viagra and Cialis.
Hollis filed objections to the PSR, contesting both the infringement and
restitution figures. With respect to the infringement amount, Hollis argued that
[t]he price per pill used in Paragraph 26 [of the PSR] is
not applicable to Mr. Hollis because the ‘market’ in
which these counterfeit pills were sold (sold on the street
for approximately $2-3/pill to individuals who would not
otherwise be able to afford to go to see a doctor nor pay
for a valid prescription) would not be the same market in
3
The commentary also suggests that a downward departure may be appropriate if the
calculated infringement amount “substantially exceed[s] the actual pecuniary harm to the
copyright or trademark owner.” Id. § 2B5.3 cmt. n.5(C).
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which genuine Viagra is sold for a much higher price per
pill.
Put differently, Hollis asserted that the court should use the retail value of the
infringing item to calculate the infringement amount. For similar reasons, Hollis
contended that the manufacturers of Viagra and Cialis had not suffered any loss
requiring restitution, as he was not displacing any legitimate sales.
At sentencing, the district court began by noting that it had received a
message from defense counsel that Hollis had withdrawn his objection to the
twelve-level infringement-amount increase in Paragraph 35 of the PSR. After the
court granted the agreed-upon one-level downward variance for acceptance and
responsibility, the following colloquy took place:
COURT: With the objection to Paragraph 35 having been withdrawn,
what is the loss amount?
DEFENSE COUNSEL: The loss amount for purposes of the
guidelines was 280,000 and change as stated in Paragraph 35.
We’re withdrawing our objection to the loss amount.
COURT: All right. So you have no objection to the determination
that there should be 12 points added to the base offense level
for loss amount?
DEFENSE COUNSEL: For Paragraph 35 purposes. I do want to
make clear that we’re not conceding the loss amount for
restitution purposes.
After hearing from both defense counsel and the government on the issue of
restitution, the district court sustained Hollis’s objections to the restitution amount.
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Ultimately, the court sentenced Hollis to 33 months of imprisonment, at the low
end of his revised guideline range. This appeal followed.
II.
On appeal, Hollis contends that the district court plainly erred in calculating
his infringement amount and guideline range under U.S.S.G. § 2B5.3. In Hollis’s
view, the court should have calculated the infringement amount using the retail
value of the counterfeit pills, as opposed to the retail value of authentic Viagra or
Cialis, because the evidence reflected that the counterfeit pills he trafficked in
would not have appeared to a reasonably informed purchaser to be identical or
substantially equivalent to legitimate pills. Alternatively, he asserts, the
infringement amount should have been based on the value of generic pills and not
the value of name-brand pills.
Ordinarily, with respect to the district court’s guideline calculations, we
review legal questions de novo, the district court’s factual findings for clear error,
and the district court’s application of the Guidelines to the facts with due
deference, which amounts to review for clear error. United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010). As for objections to sentencing issues not
raised in the district court, we review those for plain error. United States v.
Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014). To succeed on plain-error
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review, a defendant generally must show an obvious error that affected his
sentence. See id.
But we have held that a defendant’s clear and affirmative withdrawal of a
sentencing objection waives review of the objection on appeal, even for plain error.
United States v. Horsfall, 552 F.3d 1275, 1283–84 (11th Cir. 2008); United States
v. Masters, 118 F.3d 1524, 1525–26 (11th Cir. 1997) (stating that the “plain error
doctrine is inapplicable” in a situation where a defendant knowingly withdraws a
sentencing objection); cf. United States v. Olano, 507 U.S. 725, 733 (1993)
(“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is
the intentional relinquishment or abandonment of a known right.” (internal
quotation marks omitted)). Relatedly and more generally, “[t]he doctrine of
invited error is implicated when a party induces or invites the district court into
making an error.” United States v. Harris, 443 F.3d 822, 823 (11th Cir. 2006)
(quoting another source). An invited error cannot be reviewed on appeal. Id. at
823–24.
Here, during the sentencing hearing, Hollis, through counsel, knowingly
withdrew his objection to the PSR’s application of a twelve-level increase under
§ 2B5.3(b)(1)(B). Specifically, he withdrew his objection that the PSR incorrectly
relied on the retail value of the infringed item to calculate his infringement or loss
amount, which is the same argument he presents here, albeit in a slightly more
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clarified form than he presented below. Hollis’s affirmative withdrawal of his
objection to the infringement amount waived review of that issue on appeal, even
for plain error. See Horsfall, 552 F.3d at 1283–84; Masters, 118 F.3d at 1525–26.
To the extent Hollis’s new argument—that the district court should have used the
price of generic pills rather than name-brand pills—falls outside of that waiver, he
invited any error on appeal by expressly telling the district court that the “loss
amount for purposes of the guidelines was [$]280,000 and change[,] as stated in
[the PSR].” See Harris, 443 F.3d at 823.
Accordingly, because Hollis has either waived or invited the errors of which
he complains on appeal, we cannot review his sentencing challenges, even for
plain error. We therefore affirm Hollis’s sentence.
AFFIRMED.
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