United States v. Jarod Antwon Paige

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 1, 2019
• Docket: 18-11083
• Status: Unpublished

Opinion

Case: 18-11083 Date Filed: 03/01/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11083 Non-Argument Calendar ________________________

D.C. Docket No. 3:17-cr-00093-MMH-JBT-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JAROD ANTWON PAIGE,

Defendant–Appellant.

________________________

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

(March 1, 2019) Case: 18-11083 Date Filed: 03/01/2019 Page: 2 of 5

Before TJOFLAT, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

Jarod Antwon Paige pled guilty to importing fentanyl, in violation of 21

U.S.C. §§ 952 and 960(b)(3); possessing heroin and cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possessing a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District

Court varied downward from the sentencing guideline range, and sentenced Paige

to 84 months in prison. Paige appeals, arguing that his sentence is procedurally

unreasonable because the District Court improperly calculated the weight of the

drugs attributed to him. Paige also contends that his sentence is substantively

unreasonable.

I.

We review for clear error the District Court’s underlying determination of

the drug quantity attributable to a defendant. United States v. Almedina, 686 F.3d

1312, 1315 (11th Cir. 2012). A district court commits clear error when we are

“left with a definite and firm conviction that a mistake has been committed.” Id.

(quotation marks omitted).

When a defendant objects to the drug quantity used in calculating his or her

guideline sentence, the government must establish the drug quantity by a

preponderance of the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296

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(11th Cir. 2005). It can carry its burden by presenting reliable and specific

evidence. Almedina, 686 F.3d at 1315. Sentencing may be based on fair, accurate,

and conservative estimates of the quantity of drugs attributable to a defendant but

cannot be based on calculations of drug quantities that are merely speculative. Id.

at 1316.

In determining the weight of a controlled substance, the sentencing

guidelines instruct courts to use “the entire weight of any mixture or substance

containing a detectable amount of the controlled substance.” U.S. Sentencing

Guidelines Manual § 2D1.1(c), app. note (A) (U.S. Sentencing Comm’n 2004).

Furthermore, “[i]f a mixture or substance contains more than one controlled

substance, the weight of the entire mixture or substance is assigned to the

controlled substance that results in the greater offense level.” Id. In contrast,

courts should “not include materials that must be separated from the controlled

substance before the controlled substance can be used.” U.S.S.G. § 2D1.1 n.1.

This is the “market-oriented approach”: if the mixture is usable in the chain

of distribution, the entire weight should be included; but waste products and

unusable parts that must be separated should not be included. Griffith v. United

States, 871 F.3d 1321, 1335 (11th Cir. 2017); see also United States v. Rolande-

Gabriel, 938 F.2d 1231, 1237 (11th Cir. 1991) (“Although it is logical to base

sentences upon the gross weight of usable mixtures, it is fundamentally absurd to

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give an individual a more severe sentence for a mixture which is unusable and not

ready for retail or wholesale distribution while persons with usable mixtures would

receive far less severe sentences.”). Under this approach, cutting agents or

adulterants are usable parts of the mixture that should count towards the total

weight. See Griffith, 871 F.3d at 1331–35.

Here, a lab analyzed the drugs attributed to Paige and discovered both

controlled and non-controlled substances. The lab determined that the non-

controlled substances were common adulterants. As Paige conceded at sentencing,

the lab did not find any waste product or unusable parts in the mixtures. As such,

the District Court properly applied U.S.S.G. § 2D1.1 in including the entire weight

of the mixtures.

II.

Normally, we review the substantive reasonableness of a sentence for an

abuse of discretion. United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th

Cir. 2016). But we do not review invited error. See United States v. Love, 449

F.3d 1154, 1157 (11th Cir. 2006) (“It is a cardinal rule of appellate review that a

party may not challenge as error a ruling or other trial proceeding invited by that

party.” (quotation omitted)). When a party induces or invites a district court into

making an error, we are precluded from reviewing that error on appeal. United

States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

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At sentencing, Paige asked the District Court to vary downward from his

guideline range of 97 to 121 months’ imprisonment and impose a sentence

between 33 and 97 months’ imprisonment. The Court did just that and issued an

87-month sentence. Paige cannot now challenge a sentence he requested. 1

AFFIRMED.

1 Even if the doctrine of invited error did not apply, we would affirm Paige’s sentence—a 10- month downward variance—as substantively reasonable. 5