United States v. Dwayne Solomon

Case: 13-10027 Date Filed: 03/27/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10027
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60089-JIC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWAYNE SOLOMON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 27, 2014)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Dwayne Solomon, acting pursuant to a plea agreement, pled guilty to Count
One of a three-count indictment that charged him and two others with conspiring to
Case: 13-10027 Date Filed: 03/27/2014 Page: 2 of 3
defraud the United States by presenting to the IRS a claim for payment of a
$226,930 federal income tax refund which was fictitious, in violation of 18 U.S.C.
§ 286, and the District Court sentenced him to a prison term of 24 months, a
sentence at the low end of the Guidelines sentence range of 24 to 30 months. He
now appeals his sentence.
On appeal, Solomon argues that his trial counsel provided ineffective
assistance at sentencing by misunderstanding the applicable law, directing the
District Court’s attention to Solomon’s criminal history, and failing to highlight
factors that supported a downward variance from the Guidelines sentence range.
He also argues that the District Court plainly erred when it considered a
presentence investigation report (“PSI”) citing, in its criminal history section, four
arrests unaccompanied by information regarding the circumstances of the arrests.
We do not consider Solomon’s ineffective assistance of counsel argument
because the record, as it would relate to that argument, is entirely undeveloped.
Claims of ineffective assistance of trial counsel are, almost without exception,
developed in a proceeding under 28 U.S.C. 2255. See United States v. Patterson,
595 F.3d 1324, 1328 (11th Cir. 2010). We therefore move to Solomon’s plain error
argument.
An appellant establishes plain error by showing that: “(1) an error occurred,
(2) the error was plain, and (3) the error affected substantial rights in that it was
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prejudicial and not harmless.” United States v. Perez, 661 F.3d 568, 583 (11th Cir.
2011). If he can also establish that the error seriously affected the fairness,
integrity, or public reputation of the proceeding, we have discretion to vacate the
judgment and remand the case for further proceedings. Id. If the “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. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003).
Solomon points us to no such authority holding that a district court errs
simply by looking at a presentence report that cites arrests unaccompanied by
information regarding the circumstances of the arrests. This no doubt explains
why he did not object to his sentence when, following its imposition, the court
asked him if he had any objections. Since no statute or rule or controlling judicial
precedent informed the District Court that it would be committing error if it looked
at Solomon’s presentence report, no error and therefore no plain error occurred.
AFFIRMED.
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