                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                         ------------------------------------------- U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 05-13152                        November 13, 2006
                                Non-Argument Calendar                   THOMAS K. KAHN
                        --------------------------------------------          CLERK

                      D.C. Docket No. 04-14002-CR-KMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                          versus

SHANE JOSEPH COFFINDAFFER,

                                                         Defendant-Appellant.

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

                                (November 13, 2006)

Before EDMONDSON, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Shane Joseph Coffindaffer appeals his 180-month

sentence after a jury trial for conspiracy to manufacture methamphetamine and
attempted manufacture of methamphetamine, in violation of 21 U.S.C. §§

841(a)(1) and 846. We vacate and remand for resentencing.

         Coffindaffer offers many arguments challenging his sentence; and we will

consider each argument in turn.1

A.       Drug Quantity

         First, Coffindaffer asserts that the district court erred, in violation of the

Sixth Amendment, in determining that he was responsible for more than 50 grams

of methamphetamine, when the jury concluded that he was responsible for more

than five grams, but less than 50 grams, of methamphetamine. Because

Coffindaffer raised this objection before the district court, we review his argument

de novo. See United States v. Cain, 433 F.3d 1345, 1347 (11th Cir. 2005).

         Here, the district court did not err in determining -- by a preponderance of

the evidence and under an advisory Guidelines scheme -- the drug quantity

     1
     This case has an extensive procedural history. Coffindaffer was charged with conspiracy to
manufacture 50 grams or more of methamphetamine and attempted manufacture of 50 grams or more
of methamphetamine. He pled guilty to the conspiracy charge; and the government agreed to dismiss
the attempted manufacture charge. At his initial sentencing hearing, Coffindaffer argued that he only
should be held responsible for 50 grams or more of a mixture containing methamphetamine, not 50
grams or more of actual methamphetamine. Coffindaffer informed the district court that he wanted
to go to trial on how much actual methamphetamine was attributable to him. Coffindaffer’s guilty
plea was vacated; and his case proceeded to trial.
        At Coffindaffer’s first trial, the district court granted a joint motion brought by the
government and Coffindaffer for a mistrial because, among other things, Coffindaffer’s lawyer was
unable to speak during the trial due to illness. Coffindaffer received a new trial; and the jury found
Coffindaffer guilty of both counts in his indictment and concluded that he was responsible for at least
five but less than 50 grams of methamphetamine on each count.

                                                  2
attributable to Coffindaffer because his 180-month sentence did not exceed the

applicable statutory maximum sentence of 40 years under 21 U.S.C. §

841(b)(1)(B)(viii).2 See United States v. Booker, 125 S.Ct. 738, 756 (2005) (“Any

fact (other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or a

jury verdict must be admitted by the defendant or proved by a jury beyond a

reasonable doubt.”) (emphasis added); United States v. Rodriguez, 398 F.3d 1291,

1300-01 (11th Cir.) (concluding that extra-verdict enhancements under an

advisory Guidelines system are constitutionally permissible), cert. denied, 125

S.Ct. 2935 (2005).3

B.       Vindictiveness

         Coffindaffer next contends that his 180-month sentence creates a

“presumption of vindictiveness” because his co-conspirator, Devyn Edwards, was

sentenced to 48 months’ imprisonment. Coffindaffer also asserts that the district

     2
    We note that Coffindaffer’s reliance on our decision in United States v. Garcia, 405 F.3d 1260
(11th Cir. 2005) is misplaced. In Garcia, we vacated a defendant’s sentence because the district
court in that case applied the Guidelines as mandatory and determined that the defendant was
responsible for 312 marijuana plants, despite the jury’s 100-plant finding. Id. at 1275-76.
     3
    We do not address Coffindaffer’s arguments -- raised for the first time in his reply brief -- that
(1) the government presented evidence at trial that inflated the number of pseudoephedrine pills
purchased by Coffindaffer to increase the drug quantity attributable to him and (2) the jury believed
that Coffindaffer’s co-conspirator, Devyn John Edwards, exaggerated Coffindaffer’s role in the
offense. See United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (“We need not
address this issue because [defendant] raises it for the first time in his reply brief.”).

                                                  3
court calculated his sentence as punishment for Coffindaffer’s decision to proceed

to trial after initially pleading guilty.4

       Here, the district court did not engage in vindictiveness by giving

Coffindaffer a higher sentence than Edwards received. Instead of proceeding to

trial, Edwards pled guilty to conspiracy to manufacture 50 grams or more of

methamphetamine; and he was sentenced to 97 months’ imprisonment. After the

district court granted the government’s motion to reduce Edwards’s sentence for

his cooperation, Edwards’s sentence was reduced to 48 months’ imprisonment.

See United States v. Barner, 441 F.3d 1310, 1321 (11th Cir. 2006) (noting that a

defendant who rejected a plea agreement is not “entitled to go to trial with some

sort of assurance that if he loses he will not receive a longer sentence than those of

his co-defendants who pleaded”); United States v. Malekzadeh, 855 F.2d 1492,

1498 (11th Cir. 1988) (explaining that a “sentencing court needs a method to

reward those who had cooperated and to encourage those who might cooperate in

the future. [That a co-defendant] who cooperated received a lesser sentence is



   4
    Because Coffindaffer did not raise this claim before the district court, we review only for plain
error. See Rodriguez, 398 F.3d at 1298. Therefore, Coffindaffer must establish “(1) error, (2) that
is plain, and (3) that affects substantial rights.” Id. (internal quotation omitted). “If all three
conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if (4)
the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotation omitted).

                                                   4
entirely consistent with this policy”). Coffindaffer has not shown error by the

district court, much less plain error.5

C.       Denial of Safety-Valve Relief

         Coffindaffer contends that the district court improperly delegated its judicial

authority to the government because, after Coffindaffer indicated at his initial

sentencing hearing that he wanted to go to trial, the government argued that

Coffindaffer “would not be entitled to accept a safety valve.” We disagree.

         When reviewing the denial of safety-valve relief, we review for clear error a

district court’s factual determinations, while we review the court’s legal

interpretations de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir.

2004). “Safety-valve relief allows for sentencing without regard to any statutory

minimum, with respect to certain offenses, when specific requirements are met.”


     5
     We are not persuaded by Coffindaffer’s reliance on the Supreme Court’s decision in North
Carolina v. Pearce, 89 S.Ct. 2072 (1969). In Pearce, the defendants -- who had received new trials
because of defects in their original trials -- were sentenced to terms of imprisonment that exceeded
the sentences originally imposed; and the Supreme Court explained that “[d]ue process of law . . .
requires that vindictiveness against a defendant for having successfully attacked his first conviction
must play no part in the sentence he receives after a new trial.” Pearce, 89 S.Ct. at 2080. Unlike the
situation in Pearce, Coffindaffer -- significantly -- was sentenced only once. See United States v.
Nelson, 837 F.2d 1519, 1526 (11th Cir. 1988) (distinguishing Pearce from the situation where a
defendant was sentenced -- for the first time -- after pursuing an interlocutory appeal of the
government’s attempted forfeiture and concluding that the defendant “may not now claim that the
district court was vindictive simply because he is dissatisfied with the sentence imposed”). We also
conclude that Coffindaffer’s arguments that the district court demonstrated its vindictiveness “when
the judge forced to trial a sick defense attorney” and indicated frustration with the need for
continuances during Coffindaffer’s trial are without merit.

                                                  5
United States v. Brehm, 442 F.3d 1291, 1299 (11th Cir. 2006). The burden is on

the defendant to show that he has met all of the safety-valve requirements,

including this one:

      not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence
      the defendant has concerning the offense or offenses that were part of
      the same course of conduct or of a common scheme or plan . . . .

18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5); see also Johnson, 375 F.3d at
1301.

      Here, contrary to Coffindaffer’s argument, the district court reached its own

conclusion that Coffindaffer was not eligible for safety-valve relief. Edwards

testified that, as soon as officers announced their presence outside of the storage

unit where he and Coffindaffer were producing methamphetamine, they began

hiding and destroying their methamphetamine-producing supplies and pouring

bags of cement over the supplies. In contrast, Coffindaffer testified that he did not

break anything in the storage unit until he fell over a table. The district court did

not clearly err in denying Coffindaffer safety-valve relief.

D.    Guidelines Application

      Coffindaffer argues that the district court erred in not reducing his offense

level for acceptance of responsibility, U.S.S.G. § 3E1.1, or for playing a minor




                                           6
role in the criminal offense, U.S.S.G. § 3B1.2(b), and in applying an enhancement

for substantial harm to human life, U.S.S.G. § 2D1.1(b)(6)(B) (2004).

      On Coffindaffer’s claim that the district court erred in denying him a

downward adjustment for acceptance of responsibility, we note that Coffindaffer

chose to proceed to trial; and as we discussed, Coffindaffer’s testimony conflicted

with Edwards’s testimony about how they tried to destroy their methamphetamine-

producing supplies.

       The district court’s decision not to apply a downward adjustment for

acceptance of responsibility was not clearly erroneous. See United States v.

Moriarty, 429 F.3d 1012, 1022-23 (11th Cir. 2005) (explaining that we review the

denial of an acceptance-of-responsibility adjustment for clear error and noting that

“[t]he sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility. For this reason, the determination of the sentencing

judge is entitled to great deference on review”); U.S.S.G. § 3E1.1 cmt. n.1(a) (“[A]

defendant who falsely denies, or frivolously contests, relevant conduct that the

court determines to be true has acted in a manner inconsistent with acceptance of

responsibility[.]”).

      We also conclude that the district court committed no clear error in denying

Coffindaffer a minor-role reduction. Coffindaffer testified that he supplied

                                         7
Edwards with the pseudoephedrine pills and canned fuel needed to produce

methamphetamine and also that he cleaned the supplies used to make

methamphetamine. Coffindaffer was not less culpable than Edwards for the

relevant conduct for which Coffindaffer was held responsible. See United States

v. De Varon, 175 F.3d 930, 937, 940 (11th Cir. 1999) (en banc) (explaining that

we review the denial of a minor role reduction for clear error and that a sentencing

court should consider “the defendant’s role in the relevant conduct for which [he]

has been held accountable at sentencing”).

      And we affirm the district court’s application of an enhancement for

substantial harm to human life. The storage unit where Coffindaffer and Edwards

produced methamphetamine was adjacent to a storage unit where a bakery stored

its bread; and product of the methamphetamine operation leaked into the bakery’s

storage unit. In addition, the officers who investigated Coffindaffer’s

methamphetamine operation were exposed to a foul smelling odor and had to

receive medical treatment. See U.S.S.G. § 2D1.1 cmt. n. 20(A)(iv) (explaining

that, in determining whether an offense created a substantial risk of harm to human

life, the court shall consider, among other things, “[t]he location of the laboratory

(e.g., whether the laboratory is located in a residential neighborhood or a remote

area) and the number of human lives placed at substantial risk of harm”).

                                          8
E.     Consideration of 18 U.S.C. § 3553 Factors

       Coffindaffer contends that, in determining his sentence, the district court did

not consider the factors set out in 18 U.S.C. § 3553(a); and he asserts that the

district court erred in refusing his request -- made after the court pronounced its

sentence -- to explain its reasons for the sentence imposed.6 We construe

Coffindaffer’s argument as contending that the district court did not comply with

18 U.S.C. § 3553(c)(1), which requires that the sentencing court state its reason

for imposing a sentence at a particular point within a defendant’s Guidelines range

when the sentence exceeds 24 months’ imprisonment; and we review this issue de

novo. See United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006).

       At Coffindaffer’s sentencing hearing, the district court determined that his

Guidelines imprisonment range was 168 to 210 months. The district court then

sentenced Coffindaffer to 180 months’ imprisonment pursuant to the Sentencing

Reform Act of 1984. Before Coffindaffer was sentenced, the parties raised

arguments about applying the section 3553(a) factors. The district court did not

  6
    Coffindaffer was sentenced after Booker; so the district court was required to calculate correctly
his advisory Guidelines range and to consider the section 3553(a) sentencing factors. See United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Under section 3553(a), a district court should
consider, among other things, the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for adequate deterrence and protection of the public, policy
statements of the Sentencing Commission, provision for the medical and educational needs of the
defendant, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).


                                                  9
comment on these arguments; nor did the court make a statement that explained

how it calculated Coffindaffer’s sentence or that indicated that the court applied

the section 3553(a) factors.7 And the district court did not seem to notice the

request by Coffindaffer’s lawyer for an explanation of the reasons for the

particular sentence imposed. The district court failed to provide the required

statement of reasons that complies with 18 U.S.C. § 3553(c)(1). See Bonilla, 463

F.3d at 1181 (“[B]oth before and after Booker, we have disapproved the

imposition of sentences with no consideration or mention of the [section] 3553(a)

factors.”); United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006)

(remanding for compliance with section 3553(c)(1) because the district court

offered no reason for the defendant’s life sentence).

F.       Conclusion

         Although the district court did not err in many of the ways Coffindaffer has

contended, the sentencing did fail to comply with section 3553(c)(1). And for that



     7
    We note that, towards the beginning of Coffindaffer’s sentencing hearing, Coffindaffer’s lawyer
told the district court that, under the Supreme Court’s decision in Booker, district courts “are now
suppose[d] to sentence using the criteria in 18 U.S.C. [§] 3553.” The district court judge responded
that he was “prepared to do that”; and we can consider these statements. See United States v.
Suarez, 939 F.2d 929, 934 (11th Cir. 1991) (“When evaluating a district court’s reasons for imposing
a particular sentence, [we] may consider the record from the entire sentencing hearing and need not
rely upon the district court’s summary statement made at the closing of the sentencing hearing.”).
But, in imposing Coffindaffer’s sentence, the district court judge did not indicate -- at all -- if he
actually applied the section 3553(a) factors.

                                                 10
reason, we vacate the sentence and remand for resentencing consistent with this

opinion.

      VACATED AND REMANDED.




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