           Case: 16-11060    Date Filed: 11/16/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11060
                        Non-Argument Calendar
                      ________________________


               D.C. Docket No. 1:15-cr-00264-ODE-AJB-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

SHAWN LAMONT HOLLIS,

                                                          Defendant-Appellant.


                      ________________________

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

                            (November 16, 2016)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Shawn Lamont Hollis appeals his 33-month sentence of imprisonment after

pleading guilty to trafficking in counterfeit Viagra. He argues that the district

court erred in calculating his guideline range under U.S.S.G. § 2B5.3. For the

reasons set forth below, we affirm.

                                           I.

      Hollis pled guilty to one count of trafficking in a counterfeit drug, in

violation of 18 U.S.C. § 2320(a)(4). The remaining five counts charged in the

indictment were dismissed. As part of Hollis’s negotiated plea agreement, the

parties agreed to recommend that Hollis receive a one-level downward variance at

sentencing for his expeditious guilty plea.

      Before sentencing, a probation officer prepared a presentence investigation

report (“PSR”), which calculated a guideline range of 37 to 46 months of

imprisonment based on a total offense level of 19 and a criminal-history category

of III. In calculating Hollis’s offense level, the PSR started with a base offense

level of eight, U.S.S.G. § 2B5.3(a), added twelve levels because the “infringement

amount” was at least $280,000, id. § 2B5.3(b)(1)(B),1 added two levels because the

offense involved a counterfeit drug, id. § 2B5.3(b)(5), and subtracted three levels

because Hollis timely and fully accepted responsibility, id. § 3E1.1.



      1
          Under U.S.S.G. § 2B5.3(b)(1)(B), if the infringement amount exceeds $5,000, the
increase is determined by the loss table in § 2B1.1 for fraud and theft offenses.
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       Hollis’s arguments on appeal relate to the PSR’s calculation of the

infringement amount. The infringement amount serves “as a principal factor in

determining the offense level for intellectual property offenses,” and it “should

reflect the nature and magnitude of the pecuniary harm caused by [the defendant’s]

crimes.” Id. § 2B5.3 cmt. backg’d. The infringement amount is calculated by

multiplying (1) the number of “infringing items” (here, the counterfeit drugs) by

(2) the “retail value” 2 of either (a) the “infringed item” (here, the real drugs) or

(b) the infringing item. See id. § 2B5.3 cmt. n.2.

       Whether the retail value of the infringed item or the infringing item is used

depends on which value “is a more reasonable estimate of the resulting pecuniary

harm.” Id. § 2B5.3 cmt. backg’d. The Sentencing Commission has determined

that the retail value of the infringed item is a more reasonable estimate of the

resulting pecuniary harm in the specific situations listed in Application Note 2(A)

of the commentary to § 2B5.3, including where the infringing item “is, or appears

to a reasonably informed purchaser to be, identical or substantially equivalent to

the infringed item.” See id. 2B5.3 cmt. n.2(A)(i) & backg’d. In a case not covered

by Application Note 2(A), the Commission has determined that the retail value of




       2
         “Retail value” is defined as “the retail price of that item in the market in which it is
sold.” U.S.S.G § 2B5.3 cmt. n.2(C).
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the infringing item is a more reasonable estimate of the resulting pecuniary harm.

Id. § 2B5.3 cmt. n.2(B) & backg’d. 3

      Here, the PSR calculated an infringement amount of at least $280,000,

which corresponds to a twelve-level increase under the loss table in § 2B1.1.

According to the PSR, Hollis was responsible for a total of 9,520 counterfeit

Viagra and Cialis pills. The PSR multiplied that number by a “conservative

average” retail price of $29.50 per pill, which was based on an average of the retail

prices for the generic and name-brand versions of these drugs. In other words, the

PSR used the retail price of the infringed items to calculate the infringement

amount. However, the PSR contains no specific finding that the counterfeit drugs

were substantially equivalent to the infringed item. See id. § 2B5.3 cmt. n.2(A)(i).

Using similar calculations, the PSR also determined that Hollis owed a total of

$240,720 in restitution to the manufacturers of Viagra and Cialis.

      Hollis filed objections to the PSR, contesting both the infringement and

restitution figures. With respect to the infringement amount, Hollis argued that

             [t]he price per pill used in Paragraph 26 [of the PSR] is
             not applicable to Mr. Hollis because the ‘market’ in
             which these counterfeit pills were sold (sold on the street
             for approximately $2-3/pill to individuals who would not
             otherwise be able to afford to go to see a doctor nor pay
             for a valid prescription) would not be the same market in

      3
         The commentary also suggests that a downward departure may be appropriate if the
calculated infringement amount “substantially exceed[s] the actual pecuniary harm to the
copyright or trademark owner.” Id. § 2B5.3 cmt. n.5(C).
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             which genuine Viagra is sold for a much higher price per
             pill.

Put differently, Hollis asserted that the court should use the retail value of the

infringing item to calculate the infringement amount. For similar reasons, Hollis

contended that the manufacturers of Viagra and Cialis had not suffered any loss

requiring restitution, as he was not displacing any legitimate sales.

      At sentencing, the district court began by noting that it had received a

message from defense counsel that Hollis had withdrawn his objection to the

twelve-level infringement-amount increase in Paragraph 35 of the PSR. After the

court granted the agreed-upon one-level downward variance for acceptance and

responsibility, the following colloquy took place:

      COURT: With the objection to Paragraph 35 having been withdrawn,
          what is the loss amount?

      DEFENSE COUNSEL: The loss amount for purposes of the
          guidelines was 280,000 and change as stated in Paragraph 35.
          We’re withdrawing our objection to the loss amount.

      COURT: All right. So you have no objection to the determination
          that there should be 12 points added to the base offense level
          for loss amount?

      DEFENSE COUNSEL: For Paragraph 35 purposes. I do want to
          make clear that we’re not conceding the loss amount for
          restitution purposes.

      After hearing from both defense counsel and the government on the issue of

restitution, the district court sustained Hollis’s objections to the restitution amount.


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Ultimately, the court sentenced Hollis to 33 months of imprisonment, at the low

end of his revised guideline range. This appeal followed.

                                         II.

      On appeal, Hollis contends that the district court plainly erred in calculating

his infringement amount and guideline range under U.S.S.G. § 2B5.3. In Hollis’s

view, the court should have calculated the infringement amount using the retail

value of the counterfeit pills, as opposed to the retail value of authentic Viagra or

Cialis, because the evidence reflected that the counterfeit pills he trafficked in

would not have appeared to a reasonably informed purchaser to be identical or

substantially equivalent to legitimate pills.       Alternatively, he asserts, the

infringement amount should have been based on the value of generic pills and not

the value of name-brand pills.

      Ordinarily, with respect to the district court’s guideline calculations, we

review legal questions de novo, the district court’s factual findings for clear error,

and the district court’s application of the Guidelines to the facts with due

deference, which amounts to review for clear error. United States v. Rothenberg,

610 F.3d 621, 624 (11th Cir. 2010). As for objections to sentencing issues not

raised in the district court, we review those for plain error. United States v.

Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014). To succeed on plain-error




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review, a defendant generally must show an obvious error that affected his

sentence. See id.

      But we have held that a defendant’s clear and affirmative withdrawal of a

sentencing objection waives review of the objection on appeal, even for plain error.

United States v. Horsfall, 552 F.3d 1275, 1283–84 (11th Cir. 2008); United States

v. Masters, 118 F.3d 1524, 1525–26 (11th Cir. 1997) (stating that the “plain error

doctrine is inapplicable” in a situation where a defendant knowingly withdraws a

sentencing objection); cf. United States v. Olano, 507 U.S. 725, 733 (1993)

(“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is

the intentional relinquishment or abandonment of a known right.” (internal

quotation marks omitted)).     Relatedly and more generally, “[t]he doctrine of

invited error is implicated when a party induces or invites the district court into

making an error.” United States v. Harris, 443 F.3d 822, 823 (11th Cir. 2006)

(quoting another source). An invited error cannot be reviewed on appeal. Id. at

823–24.

      Here, during the sentencing hearing, Hollis, through counsel, knowingly

withdrew his objection to the PSR’s application of a twelve-level increase under

§ 2B5.3(b)(1)(B). Specifically, he withdrew his objection that the PSR incorrectly

relied on the retail value of the infringed item to calculate his infringement or loss

amount, which is the same argument he presents here, albeit in a slightly more


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clarified form than he presented below. Hollis’s affirmative withdrawal of his

objection to the infringement amount waived review of that issue on appeal, even

for plain error. See Horsfall, 552 F.3d at 1283–84; Masters, 118 F.3d at 1525–26.

To the extent Hollis’s new argument—that the district court should have used the

price of generic pills rather than name-brand pills—falls outside of that waiver, he

invited any error on appeal by expressly telling the district court that the “loss

amount for purposes of the guidelines was [$]280,000 and change[,] as stated in

[the PSR].” See Harris, 443 F.3d at 823.

      Accordingly, because Hollis has either waived or invited the errors of which

he complains on appeal, we cannot review his sentencing challenges, even for

plain error. We therefore affirm Hollis’s sentence.

      AFFIRMED.




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