           Case: 15-10200   Date Filed: 10/22/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10200
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:12-cr-00223-SCJ-JSA-6

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

XHOSA BUFFINGTON,
a.k.a. Sis,

                                                        Defendant-Appellant.

                       _______________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (October 22, 2015)



Before HULL, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 15-10200        Date Filed: 10/22/2015        Page: 2 of 4


       Xhosa Buffington appeals her 60-month mandatory minimum sentence,

imposed after she pled guilty to conspiracy to possess with intent to distribute

heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(i), 841(b)(1)(C) and

841(b)(1)(D). On appeal, Buffington argues that the Government failed to show

she was responsible for at least 100 grams of heroin, triggering the mandatory

minimum sentence. Buffington also argues that the sentencing court improperly

applied an enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises

to distribute or manufacture controlled substances. After review, we affirm.

       As a preliminary matter, Buffington does not challenge the constitutionality

of her sentence under Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151

(2013) and appears not to want a jury to decide whether she possessed a sufficient

quantity of heroin to qualify for the mandatory minimum under 21 U.S.C.

§ 841(b)(1)(B)(i). Buffington proceeded through two sentencing hearings and two

appeals without raising an Alleyne objection.1 See Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“A passing reference to

an issue in a brief is not enough, and the failure to make arguments and cite

authorities in support of an issue waives it.”); United States v. Vanorden, 414 F.3d

       1
          The plea colloquy in this case took place three weeks before Alleyne was decided. The
first sentencing hearing, which was the subject of Buffington’s first appeal, took place two
months after Alleyne, and the second sentencing hearing, which is the subject of this appeal, took
place 18 months after Alleyne. Buffington references Alleyne for the first time in this appeal but
only to counter an anticipated argument by the Government that Alleyne converts Buffington’s
guilty plea as to all elements of the offense except the quantity of drugs into an unqualified guilty
plea. The Government does not so argue.
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1321, 1323 (11th Cir. 2005) (applying the waiver/abandonment rule in the context

of constitutional challenges to criminal procedure). Because Buffington challenges

the basis for the sentencing court’s findings rather than the constitutionality of the

sentencing process, this Court reviews the sentencing court’s findings of fact for

clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005); see

also United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).

      The sentencing court’s finding that Buffington was responsible for more

than 100 grams of heroin was not clearly erroneous. Buffington admitted to the

factual allegations in count three of the indictment, which included a statement that

Buffington joined the underlying conspiracy “on or about March 1, 2012.”

Although Buffington argued at the sentencing hearing that she did not join the

conspiracy until May 2012, the sentencing court was entitled to credit Buffington’s

statement during her plea colloquy that the indictment was true with the exception

of the heroin quantity. See United States v. Almedina, 686 F.3d 1312, 1315 (11th

Cir. 2012) (quotation omitted) (“Where a fact pattern gives rise to two reasonable

and different constructions, the factfinder’s choice between them cannot be clearly

erroneous.”). At the sentencing hearing, Buffington offered as evidence multiple

investigation reports, which identified several heroin transactions involving one or

more of Buffington and her co-conspirators and commencing on or after March 1,

2012. In total, the reports identify transactions involving an aggregate of 84.2


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grams of heroin and at least another 55.9 grams of heroin that was found in

Buffington’s home. Therefore, the district court could reasonably have concluded

that Buffington was responsible for more than 100 grams of heroin.

      The sentencing court’s decision to apply a two-point enhancement under

U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of

manufacturing or distributing a controlled substance was also not clearly

erroneous. The evidence offered at sentencing showed that Buffington sold drugs

from her home on at least one occasion and purchased drugs in her home on at

least one occasion. On the night of Buffington’s arrest, as police approached

Buffington’s home, they encountered in Buffington’s front yard two men, one of

whom was armed. When Buffington’s home was searched, police found four

scales and a large quantity of drugs, many of which were individually packaged in

baggies. Under these facts, the sentencing court could reasonably have concluded

that one of Buffington’s primary or principal uses for her home was the

distribution of drugs. See U.S.S.G. § 2D1.1, comment (n.17) (“Manufacturing or

distributing a controlled substance need not be the sole purpose for which the

premises was maintained, but must be one of the defendant’s primary or principal

uses for the premises, rather than one of the defendant’s incidental or collateral

uses for the premises.”).

      AFFIRMED.


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