                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  July 6, 2007
                               No. 06-14353                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                    D. C. Docket No. 05-80173-CR-DTKH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TERRY DYKES,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (July 6, 2007)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Terry Dykes appeals his total 24-month sentence for (1) failure to
file a demolition/renovation notice, in violation of 42 U.S.C. § 7413(c)(2)(B); and

(2) failure to comply with the National Emission Standards for Hazardous Air

Pollutants (“NESHAP”) work practice standards, in violation of 42 U.S.C.

§ 7413(c)(1). In November 2000, Mark Schwartz, on behalf of Schwartz

Construction Management, hired Dykes and his crew, which included Chris Magno

and Greg Hill, to handle selective interior demolition of the former Northwood

Hotel (“Northwood”) in West Palm Beach, Florida. During the project, Dykes

discovered that there was asbestos, but failed to file a notice required by the

Federal Clean Air Act (“CAA”), and had his crew remove a hot water tank,

covered with asbestos, and cut up copper pipes in the building, which were covered

in “regulated asbestos material” (“RACM”), while not being certified or licensed to

conduct abatement of asbestos. At Dykes’s plea hearing, the district court

indicated that it was willing to accept Alford 1 pleas, but then refused to accept

Dykes’s plea after he would not admit to criminal knowledge.

      On appeal, Dykes first argues that the district court erred because it was

confused as to the legal prerequisites for an Alford plea. He claims that, after the

government presented a sufficient factual basis, the district court appeared to forget

that it was an Alford plea, as it did not allow the plea to proceed when Dykes



      1
          North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).

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would not admit to criminal knowledge. Second, he contends that the district court

abused its discretion because it was arbitrary for it to reject his plea, when only a

day earlier, it accepted an Alford plea from a codefendant, who had similarly

refused to admit criminal knowledge. Further, Dykes argues that he was

prejudiced by the district court’s rejection of his plea because his allegedly

untruthful trial testimony was used as grounds for an obstruction-of-justice

enhancement and to deny him a reduction for acceptance of responsibility, and the

district court repeatedly cited the trial testimony of Hill as grounds that the offense

was so serious and callous as to warrant a sentence in the middle of the guideline

range.

         Ordinarily, we review a district court’s decision to reject a guilty plea for an

abuse of discretion. United States v. Gomez-Gomez, 822 F.2d 1008, 1010 (11th

Cir. 1987). However, because Dykes did not object to the district court’s rejection

of the plea below based on its confusion of the legal prerequisites of an Alford plea,

we review this issue for plain error. See United States v. Clark, 274 F.3d 1325,

1326 (11th Cir. 2001); see also United States v. Buonocore, 416 F.3d 1124, 1128-

29 (10th Cir. 2005). Under plain error review, the error must be plain, affect

substantial rights, and seriously implicate the fairness, integrity, or public

reputation of judicial proceedings. Clark, 274 F.3d at 1326. To show that an error



                                             3
affected substantial rights, a defendant must show that the error “affected the

outcome of the district court proceedings.” United States v. Heath, 419 F.3d 1312,

1315 (11th Cir. 2005).

      When a defendant attempts to plead guilty, while protesting his innocence, a

trial judge may accept the plea if the defendant clearly indicates his desire to plead

guilty, and a strong factual basis for the plea exists. Alford, 400 U.S. at 31-32, 38,

91 S. Ct. at 164-65, 167-68. A defendant, however, has no absolute right under the

Constitution or Fed.R.Crim.P. 11 to have his guilty plea accepted by the court.

Gomez-Gomez, 822 F.2d at 1010. We have found that, “when a defendant casts

doubts upon the validity of his guilty plea by protesting his innocence or by

making exculpatory statements,” the district court may resolve such doubts against

the plea. Id. at 1011.

      The record demonstrates that the district court imposed Dykes’s sentence

based on trial facts that also had been elicited in the government’s factual proffer

during his plea hearing. Accordingly, reviewed for plain error, Dykes cannot show

that the district court’s rejection of his Alford plea affected the outcome of his case.

      Next, Dykes argues that the district erred by applying an obstruction-of-

justice enhancement based on its finding that he committed perjury. He contends

that this was not a case where numerous witnesses contradicted him regarding facts



                                           4
of which he could not have been mistaken, or where his testimony was

transparently false, as evidenced by the fact that the jury announced that it was

hung, had to have an Allen2 charge, and deliberated for two and one-half days to

answer the simple question of whether he knew that the insulation was asbestos.

Further, he contends that, to find that a defendant perjured himself, there must be

“wilfulness,” and, here, he did not wilfully intend to provide any testimony, let

alone, false testimony, as he had attempted to enter an Alford plea.

      For an obstruction-of-justice enhancement, we review the district court’s

findings of fact for clear error and the application of the guidelines to those facts de

novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). We accord

great deference to the district court’s credibility determinations. United States v.

Gregg, 179 F.3d 1312, 1316 (11th Cir.1999).

      The guidelines provide for a two-level increase in the offense level:

      [i]f (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of
      the investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense.

U.S.S.G. § 3C1.1. (2005). Perjury, which is among the examples of conduct

warranting this enhancement, U.S.S.G. § 3C1.1, comment. (n.4(b)), “has been

      2
          Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).

                                                 5
defined by the United States Supreme Court as ‘false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory,’” United States v. Singh, 291 F.3d

756, 763 (11th Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 94,

113 S. Ct. 1111, 1116 (1993)). We can affirm if “the district court makes a general

finding of obstruction of justice that encompasses all of the factual predicates of

perjury.” United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir. 2002) (citation

and quotation marks omitted).

      Because the record demonstrates that several witnesses at trial contradicted

Dykes’s material testimony, we conclude that the district court did not err by

applying an obstruction-of-justice enhancement.

      Furthermore, Dykes argues that the court erroneously applied a two-level

“supervisor” enhancement. First, he contends that, because the jury had to find, as

an element of the offense, that he was an “operator” (defined as “supervisor”),

imposing a supervisor enhancement upon him constituted impermissible double-

counting. Further, he contends that, because Magno and Hill, those he supervised,

were not owners/operators of the work site, they were not criminally liable for the

offenses of which he was convicted, and, thus, there was no basis for his U.S.S.G.

§ 3B1.1(c) enhancement.



                                           6
      Generally, a district court’s determination of defendant’s offense level due

to his status as a leader or organizer is a finding of fact that we review for clear

error. United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). However,

because Dykes did not raise below his argument that Magno and Hill were not

criminal participants, this argument will be reviewed for plain error. See United

States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). We review de novo

allegations of impermissible double-counting under the Sentencing Guidelines.

United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).

      Under § 3B1.1(c), a two-level increase to the offense level is warranted “[i]f

the defendant was an organizer, leader, manager, or supervisor.” U.S.S.G.

§ 3B1.1(c). To qualify for this enhancement, the defendant must have been the

organizer, leader, manager, or supervisor of one or more participants. U.S.S.G.

§ 3B1.1, comment. (n.2). “A ‘participant’ is a person who is criminally

responsible for the commission of the offense, but need not have been convicted.”

U.S.S.G. § 3B1.1, comment. (n.1). The defendant is counted as one of the

participants. United States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994). There

must, however, be one other criminal participant than the defendant. Id. at 1045

n.8

      “Impermissible double counting occurs only when one part of the Guidelines



                                            7
is applied to increase a defendant’s punishment on account of a kind of harm that

has already been fully accounted for by application of another part of the

Guidelines.” Dudley, 463 F.3d at 1226-27 (citation omitted). Double counting is

permissible, however, if “the Sentencing Commission . . . intended that result and

each guideline section in question concerns conceptually separate notions relating

to sentencing.” Id. at 1227 (citation omitted). “We presume that the Sentencing

Commission intended separate guidelines sections to apply cumulatively, unless

specifically directed otherwise.” Id. (citations and quotations omitted). In cases

where a district court has stated that, even if it erred in applying an enhancement, it

would have imposed the same sentence regardless, in light of 18 U.S.C. § 3553(a)

factors, any error in calculating the enhancement does not require remand,

assuming the reasonableness of the sentence ultimately imposed. United States v.

Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006).

      Because we conclude from the record that the court’s application of §

3B1.1(c) did not result in double-counting, and the district court did not plainly err

in finding that Dykes supervised one or more participants, the district court did not

err in applying a supervisory-role enhancement.

      Regarding the reasonableness of his sentence, Dykes first argues that the

district court erred because it presumed that a within-guidelines sentence was



                                           8
reasonable. Second, he argues that the court failed to consider the nature and

circumstances of the offense and the need to avoid unwarranted sentence

disparities. Third, he argues that his sentence is substantively unreasonable in light

of the unwarranted sentencing disparities between his sentence and that of his

codefendants, and the court’s “single-minded” focus on the seriousness of his

misconduct.

      Pursuant to the Supreme Court’s instructions in United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), we review for reasonableness a district court’s

sentence, imposed after consulting the guidelines and considering the factors set

forth at § 3553(a). United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.

2006). When reviewing a sentence for unreasonableness, we must evaluate whether

the sentence achieves the purposes of sentencing stated in § 3553(a). United States

v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006), petition for cert. filed, (U.S. Oct

19, 2006) (No. 06-7352). Our evaluation must be made having regard for the

factors listed in § 3553(a) and the reasons for the particular sentence as stated by

the district court. Id. at 1361. This is a “deferential” review, and the burden is on

the defendant to prove that the sentence is unreasonable. Keene, 470 F.3d at 1350.

       In sentencing a defendant, the factors that a district court should consider

include: (1) the nature and circumstances of the offense; (2) the history and



                                           9
characteristics of the defendant; (3) the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, afford adequate deterrence,

protect the public, and provide needed correctional treatment; (4) the applicable

guideline range; (5) the pertinent Sentencing Commission policy statements; and

(6) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(7). A district court is not required to state explicitly on the record

that it has considered the § 3553(a) factors, so long as the record reflects that the

court did consider those factors in reviewing the defendant’s sentencing objections.

United States v. Dorman, ___ F.3d ___, (11th Cir. June 8, 2007) (No. 04-14886);

see also United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).

      Because the record reflects that the district court adequately and properly

considered the § 3553(a) factors, we conclude that Dykes’s sentence was

reasonable. Accordingly, we affirm his sentence.

      AFFIRMED.




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