                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 06-10214                  AUGUST 30, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

               D. C. Docket No. 05-00044-CR-FTM-33DNF

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

DALLAS E. DAVIS,

                                                   Defendant-Appellant.


                       ________________________

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

                             (August 30, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Dallas E. Davis appeals his sentence after pleading guilty to two counts of

possession with intent to distribute and distribution of crack cocaine. See 21

U.S.C. § 841. Davis argues that (1) his sentence should be vacated because he was

entitled to sentencing by a different district court judge after the government

breached its obligation under his plea agreement and (2) his sentence under section

841(b) violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

We affirm.

      On three occasions in January 2004, Davis sold crack cocaine to an

undercover agent of the U.S. Drug Enforcement Administration. Davis was

arrested and indicted on three counts of possession with intent to distribute and

distribution of crack cocaine. See 21 U.S.C. § 841. Davis entered a written plea

agreement in which the government agreed to dismiss the third count of the

indictment and recommend a sentence “at the low end of the applicable guideline

range” in exchange for Davis’s pleading guilty to the first two charges. On August

4, 2005, Davis pleaded guilty.

      At Davis’s sentencing hearing, the district court calculated a guidelines

range of 84 to 105 months of imprisonment. The government recommended a

sentence “within the guidelines range.” The district court commented on Davis’s

prior drug convictions and sentenced Davis to 100 months of imprisonment.



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      After the district court adjourned the hearing, Davis reminded the

government of its obligation to recommend a sentence at the low end of the

guidelines range. The government requested that the district court reopen the

sentencing hearing and advised the district court that it was “contractually bound to

recommend” a sentence of 84 months. The district court reopened the hearing and

permitted both parties an opportunity to argue. The district court then stated that it

does not always follow the recommendation of the government, spent a “long time

looking through [Davis’s] background,” and determined that the sentence of 100

months was an “appropriate and fair sentence, given the crime involved, given the

defendant’s background, and given the defendant’s history.” Davis did not object

to the sentence or that it was imposed by the same district court judge.

      This Court reviews de novo the remedy for a violation of a plea agreement

by the government. See United States v. Johnson, 132 F.3d 628, 631 (11th Cir.

1998). We review de novo the constitutionality of a statute. See United States v.

Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). “We review arguments raised for

the first time on appeal for plain error.” United States v. Clark, 274 F.3d 1325,

1325 (11th Cir. 2001).

      Davis argues that resentencing by the same district court judge was an

insufficient remedy for the breach of the plea agreement by the government.



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Because Davis failed to object to this remedy, we review for plain error. See id.

“We will find plain error only where (1) there is an error in the district court’s

determination; (2) the error is plain or obvious; (3) the error affects the defendant’s

substantial rights in that it was prejudicial and not harmless; and (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citing United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.

1996)). “In regard to this third prong, ‘it is the defendant rather than the

government who bears the burden of persuasion with respect to prejudice.’”

United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (quoting United

States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993)).

      Even if the district court committed error that is plain by reopening the

sentencing hearing and resentencing Davis, see Johnson, 132 F.3d 631, Davis

cannot establish prejudice. Davis must establish a “reasonable probability” that his

sentence would have been lower. Id. Davis offers no evidence that his sentence

would have been lower had his sentencing been reassigned to an “untainted”

district court judge. To the contrary, the district court stated that it considered the

recommendation of the government but chose not to follow it because of Davis’s

conduct, background, and history. Davis suffered no prejudice when he was




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resentenced by the same district court judge after the breach was brought to the

attention of the court.

      Davis also argues that his sentence is unconstitutional under Apprendi, 530

U.S. 466, 120 S. Ct. 2348, because section 841(b) allows facts not found by a jury

to increase the sentence beyond the statutory maximum. Davis failed to raise this

argument before the district court, and this Court recently held that section 841

does not violate Apprendi and its progeny. See United States v. Underwood, 446

F.3d 1340, 1345 (11th Cir. 2006). We find no error, plain or otherwise.

      AFFIRMED.




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