           Case: 12-12988   Date Filed: 02/18/2014   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12988
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-20796-DLG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANTON LEMAR DAMES,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 18, 2014)



Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
                Case: 12-12988       Date Filed: 02/18/2014   Page: 2 of 7


      Anton Lemar Dames appeals his convictions and 120-month sentences for

distributing cocaine within 1,000 feet of a public playground and possession with

intent to distribute 500 grams or more of cocaine within 1,000 feet of a

playground, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a). Dames asserts

several issues on appeal, which we address in turn. After review, we affirm

Dames’ convictions and sentences.

                           I. GUILTY PLEA WITHDRAWAL

      Dames contends the district court improperly vacated his guilty plea because

he attempted to enter an Alford 1 plea. He claims the district court misinterpreted

his protest of innocence to be a request to withdraw his guilty plea. Dames asserts

the district court failed to evaluate the totality of the circumstances to determine

whether Dames showed a fair and just reason for the withdrawal. Dames contends

nothing in the record demonstrates his withdrawal of the guilty plea was knowing,

intelligent, or voluntary.

      We have rejected the argument that after a district court accepts a guilty

plea, the district court’s discretion to set the plea aside is limited. United States v.

Gomez-Gomez, 822 F.2d 1008, 1010 (11th Cir. 1987). To safeguard the rights of a

defendant, the district court’s discretion to accept a guilty plea is confined by Rule

11, and “[p]roper operation of these safeguards demands that the judge retain broad


      1
          North Carolina v. Alford, 400 U.S. 25 (1970).
                                               2
               Case: 12-12988     Date Filed: 02/18/2014     Page: 3 of 7


discretion to set a guilty plea aside, at least until he has fully discharged his Rule

11 responsibilities.” Id. at 1011. “When a defendant attempts to couple a guilty

plea with an assertion of facts that would negate his guilt, a judge may properly

treat this assertion as a protestation of innocence. Though a judge may enter

judgment upon a guilty plea under these circumstances, he is not required to do

so.” Id. (citing Alford, 400 U.S. at 38 nn. 10, 11). We have concluded “when a

defendant casts doubts upon the validity of his guilty plea by protesting his

innocence or by making exculpatory statements, the court may resolve such doubts

against the plea.” Id.

      The district court did not abuse its discretion when it set aside Dames’ guilty

plea. See id. at 1010 (reviewing a district court’s decision to set aside a guilty plea

for an abuse of discretion). At the post-plea sentencing hearing, Dames asserted

his innocence and told the district court that he was not guilty of the offense to

which he pled guilty. The district court specifically inquired as to whether Dames

believed he was guilty, and when Dames asserted that he was innocent, the district

court exercised its discretion to set aside the guilty plea and take the matter to trial.

Although Alford permits a defendant to plead guilty while protesting his

innocence, a defendant does not have an absolute right to plead guilty in the first

place. Id. at 1010-11. Dames’ strong protestation of his innocence cast doubt on




                                            3
               Case: 12-12988     Date Filed: 02/18/2014     Page: 4 of 7


the validity of his guilty plea, and the district court had the discretion to resolve

such doubt against the plea. See id. at 1011.

                                II. PRISON CLOTHES

      Dames argues his right to a fair trial was violated when he was tried while

wearing identifiable prison clothing. The Government brought the issue to the

attention of the district court, which observed the error, but did not engage Dames

in a colloquy to determine whether he knew he had a right to wear other clothes.

      Even if the district court erred by permitting Dames to be tried while

wearing prison garb, Dames invited the error. See United States v. Brannan, 562

F.3d 1300, 1306-07 (11th Cir. 2009) (explaining if a defendant not only fails to

object at the district court level, but by his words and conduct actively encouraged

the district court’s commission of an alleged error, the doctrine of invited error

precludes review of the issue entirely). The Government attorney raised the issue

to the district court that Dames was wearing prison clothes before the trial started.

The district court asked whether Dames or his counsel had an issue with his

clothing, and both responded that they had no problem. Thus, Dames invited any

potential error committed by the district court, and review of the issue by this

Court is precluded. See id.




                                            4
                Case: 12-12988        Date Filed: 02/18/2014       Page: 5 of 7


                                 III. PRIOR CONVICTION

       Dames argues that, pursuant to Alleyne v. United States, 133 S. Ct. 2151

(2013), his sentences were illegal because they were based on an increased

mandatory minimum because of his prior felony drug conviction. He contends his

ten-year mandatory minimum sentences, 21 U.S.C. §§ 841(b)(A) (B)(ii), 851, were

unconstitutional because the district court raised the mandatory minimum sentence

without submitting the “element” of the prior drug conviction to the jury.

Although Dames acknowledges Alleyne stated it did not disturb the Supreme

Court’s previous holding in Almendarez-Torres v. United States, 523 U.S. 224

(1998), he argues the same principles espoused in Alleyne must supersede the

holding in Almendarez-Torres because the prior conviction was a factor that raised

the mandatory minimum sentence.

       The district court did not commit plain error 2 by enhancing Dames’ sentence

because of his prior felony drug conviction. The Supreme Court stated in Alleyne

that its decision did not reach the issue of whether prior convictions must be

proved to a jury, and thus, the decision in Almendarez-Torres remained

undisturbed. See Alleyne, 133 S. Ct. at 2160 n.1. The Supreme Court held in

Almendarez-Torres that a prior conviction is not considered an element of a crime,


       2
         Dames did not object to his sentence on this basis in the district court, and we review
sentencing objections based on Alleyne that were not preserved before the district court for plain
error. United States v. McKinley, 732 F.3d 1291, 1295-96 (11th Cir. 2013).
                                                5
              Case: 12-12988     Date Filed: 02/18/2014   Page: 6 of 7


and it does not have to be proven to a jury beyond a reasonable doubt. 523 U.S. at

247. As Almendarez-Torres has not been overruled, the district court did not

commit plain error by applying the § 851 enhancement based on Dames’ prior

conviction, resulting in his total sentence of 120 months’ imprisonment.

                       IV. SENTENCE MANIPULATION

      Dames contends the district court abused its discretion by not reducing his

sentence because the Government engaged in sentencing factor manipulation. He

asserts that by continuing to send the confidential source to purchase greater

quantities of cocaine after he had committed the principal crime, the Government

engaged in sentencing manipulation. Had the Government arrested him on

September 22, 2012 instead of November 2, 2012, he would have faced a different

mandatory minimum based on drug quantity.

      “[S]entencing factor manipulation occurs when the government’s

manipulation of a sting operation, even if insufficient to support a due process

claim, requires that the manipulation be filtered out of the sentencing calculus.”

United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[T]he

government must engage in extraordinary misconduct” for a sting operation to

constitute sentencing factor manipulation. Id. at 1271. The party raising the

defense of sentence factor manipulation bears the “burden of establishing that the




                                          6
                Case: 12-12988       Date Filed: 02/18/2014      Page: 7 of 7


government’s conduct is sufficiently reprehensible to constitute sentencing factor

manipulation.” Id.

        Dawes did not meet his burden of showing the Government committed

sentencing factor manipulation. 3 The Government engaged in a sting operation to

explore the extent of Dames’ criminal activity and drug trafficking network by

increasing the amount of drugs requested, which is not “extraordinary

misconduct.” See id. at 1271. We have held that neither the use of a large drug

quantity of drugs in a reverse sting operation nor the use of one type of drug over

another drug, which caused a difference in sentence, constituted sentencing factor

manipulation. See United States v. Williams, 456 F.3d 1353, 1370-71 (11th Cir.

2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85

(2007) (holding the use of a drug that carries a higher sentence rather than another

drug does not amount to sentencing factor manipulation); United States v. Sanchez,

138 F.3d 1410, 1414 (11th Cir. 1998) (holding, in a case of a reverse sting

operation, the use of a large amount of drugs did not amount to sentencing factor

manipulation).

       AFFIRMED.




       3
          Dames’ arguments regarding sentencing entrapment and partial entrapment fail as a
matter of law because this Court does not recognize either defense. See Ciszkowski, 492 F.3d at
1270.
                                               7
