                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                               June 10, 2005
                             No. 03-15227
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                 D. C. Docket No. 02-00415-CR-T-24-TBM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SAMUEL VALIANT SHANNAHAN, III,
a.k.a. Val,
a.k.a. Samuel Valiant Shannahan,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 10, 2005)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Samuel Valiant Shannahan, III, who pled guilty to ten counts of unlawfully

transferring a firearm in violation of 26 U.S.C. § 5861(e), appeals his sentence of

fifty-six months of imprisonment. Specifically, Shannahan argues that the district

court erred by: (1) refusing to enforce the terms of a plea agreement after it had

been breached; (2) enhancing his sentence in violation of his constitutional rights

under Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004) and United

States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005); (3) enhancing his sentence

for obstruction of justice; and (4) declining to grant an acceptance of responsibility

sentence reduction. Because the district court did not commit reversible error in its

sentencing of Shannahan, we AFFIRM.

                                I. BACKGROUND

      Shannahan was a federally-licensed firearms dealer working in Florida. As

such, he was responsible for filing with federal authorities various registration and

transfer of ownership forms when he sold firearms to customers. In August 2002,

however, one of Shannahan’s customers, Dr. Robert Goldstein, was the subject of a

federal criminal investigation which led to the discovery of various firearms in

Goldstein’s possession which were not properly registered in Goldstein’s name.

Later research confirmed that four of these weapons were registered in

Shannahan’s name and were transferred by him to Goldstein without filing the



                                           2
proper paperwork with federal authorities.

      Based on this discovery, in September 2002, federal agents from the Bureau

of Alcohol, Tobacco, and Firearms (“ATF”) executed a search warrant of

Shannahan’s residence. During the search, the agents found that Shannahan was

unable to account for several weapons which were registered in his name and

which were legally required to be in his possession. While Shannahan told the

agents that he did not know the whereabouts of all the missing weapons, he

indicated that some of the weapons could be found in Goldstein’s vault and that

some of the weapons had been destroyed. Particularly, Shannahan told federal

agents that he had destroyed a Zastava M61J machine gun registered in his name.

Following Shannahan’s direction, federal agents executed a search of Goldstein’s

vault and discovered, inter alia, the Zastava that Shannahan had indicated he

destroyed. Federal agents then telephoned Shannahan and asked him whether he

had any documentation that the Zastava had in fact been destroyed according to

federal regulations. Shannahan complied with this request for documentation and

faxed to the ATF a document which indicated that the Zastava had been destroyed.

      On 3 April 2003, a federal grand jury returned a second superceding

indictment which charged Shannahan with eleven counts of unlawfully transferring

a firearm, in violation of 26 U.S.C. § 5861(e), and one count of making a false



                                         3
statement, in violation of 18 U.S.C. § 1001(a)(2). Pursuant to a plea agreement,

Shannahan pled guilty to one count of unlawfully transferring a firearm and

proceeded to sentencing. At the sentencing hearing, however, the government

contended that Shannahan admitted to transferring certain weapons to Goldstein

which he had not previously disclosed. As a result, the government, in violation of

the plea agreement that had been negotiated with Shannahan, requested the district

court to apply an obstruction of justice sentence enhancement. Recognizing the

breach, the district court heard argument about whether it should order specific

performance of the plea agreement or whether it should allow Shannahan to

withdraw his plea. After the district court denied Shannahan’s request for specific

performance, Shannahan withdrew his plea and indicated that he wanted to proceed

to trial.

        On 13 August 2003, a federal grand jury returned a third superceding

indictment which charged Shannahan with ten counts of unlawfully transferring a

firearm. Shannahan subsequently pled guilty to all ten counts in the indictment.

At sentencing, the district court took testimony and heard argument regarding

whether Shannahan’s conduct merited an obstruction-of-justice enhancement

and/or an acceptance-of-responsibility reduction. Specifically, the district court

considered Shannahan’s fax to ATF agents which indicated that the Zastava had



                                          4
been destroyed. The district court found that Shannahan had indicated to ATF

agents when they first searched his residence that he believed he had destroyed the

Zastava and subsequently faxed them false documentation supporting that

assertion. Despite this finding, Shannahan argued that he was not wilfully

misleading the ATF. He argued that his conduct was not wilful because he faxed

the document in response to the ATF’s request for documentation. In addition, he

indicated that he intended to destroy the weapon at the time the faxed document

was created, although he never carried out this intent. Moreover, he argued that his

fax could not have misled federal authorities because they were in possession of

the Zastava when they contacted him for more information. Despite these

arguments, the district court found that the obstruction-of-justice enhancement was

warranted because Shannahan produced a falsified document to the ATF without

informing them that it was not accurate. As a result of this ruling, the district court

found that Shannahan would be eligible for an acceptance-of-responsibility

sentence reduction only if he showed extraordinary circumstances. Because

Shannahan was unable to make this showing, the district court found that an

acceptance-of-responsibility reduction was not warranted. Shannahan was

sentenced to fifty-six months of imprisonment.

      On appeal, Shannahan argues that the district court erred by denying his



                                           5
request for specific performance of the plea agreement he negotiated with the

government. Particularly, Shannahan argues that the district court should have

enforced the provision in which the government agreed not to argue for an

obstruction-of-justice sentence enhancement. In addition, Shannahan argues for

the first time on appeal that the district court’s use of the United States Sentencing

Guidelines (“Guidelines”) to enhance his sentence for obstruction of justice

violated his Sixth Amendment rights pursuant to Blakely. Finally, his arguments

based on the plea agreement and Blakely notwithstanding, Shannahan argues that

the district court erred in its application of the Guidelines by imposing the

obstruction-of-justice enhancement and by denying the acceptance-of-

responsibility reduction. We address each argument in turn.

                                    II. DISCUSSION

A. Request for Specific Performance

       We review for an abuse of discretion the district court’s decision not to grant

specific performance of a plea agreement. See United States v. Tobon-Hernandez,

845 F.2d 277, 281 (11th Cir. 1988). Following the government’s breach of a plea

agreement,1 the district court has two options: (1) order specific performance,

which entitles the defendant to resentencing before a different judge in accordance


       1
        On appeal, the government does not contend that it did not breach the plea agreement.
Accordingly, our analysis focuses on the remedies for breach of a plea agreement.

                                               6
with the terms of the plea agreement; or (2) allow the defendant to withdraw the

plea of guilty and proceed to trial. See id. at 280 (citing Santobello v. New York,

404 U.S. 257, 263, 92 S. Ct. 495, 499 (1971)). “While the choice of a remedy is

within the discretion of the court rather than the defendant, the remedy of

withdrawal of the guilty plea has not been favored in this circuit.” United States v.

Jefferies, 908 F.2d 1520, 1527 (11th Cir. 1990). This preference for specific

performance recognizes the necessity for the government to honor plea agreements

and for courts to ensure that defendants receive the benefit of the bargain they

negotiated in exchange for their surrender of certain constitutional rights to trial.

See Santobello, 404 U.S. at 262, 92 S. Ct. at 499. Where practical considerations

would make specific performance problematic, however, withdrawal of the guilty

plea is a sufficient remedy for the government’s breach. See United States v.

Taylor, 77 F.3d 368, 372 (11th Cir. 1996) (concluding that withdrawal was the

appropriate remedy because the government’s breaching statements were part of

the record that likely would have been examined by a different sentencing judge

had specific performance been ordered).

      Based on the foregoing, the district court did not abuse its discretion by

denying Shannahan’s request for specific performance of the plea agreement. As

the district court noted, the probation officer’s presentencing investigation report



                                           7
(“PSR”) recommended a sentence enhancement for obstruction of justice based on

Shannahan’s fax of a document to the ATF regarding the destruction of the

Zastava. Accordingly, had the district court granted the specific performance

sought by Shannahan, the newly appointed sentencing judge likely would have

been confronted with a PSR containing the same recommendation. Consequently,

the record containing Shannahan’s responses to questions relating to the fax and

the government’s arguments for enhancement in breach of the agreement would

have been relevant to, and the subject of, subsequent sentencing proceedings.

Thus, based on Taylor, withdrawal was the proper remedy because the grant of

specific performance would not have effectively remedied the breach. See id.

Moreover, the district court found, and our review of the record confirms, that

Shannahan was not consistent in the statements he made under oath during various

sentencing proceedings. See, e.g., R6 at 33-34; R10 at 85. Thus, while our

preference is to grant specific performance where a defendant has adhered to the

terms of the agreement, see United States v. Rewis, 969 F.2d 985, 989 (11th Cir.

1992), the district court found, and we agree, that Shannahan’s conduct did not

merit giving him the benefit of the bargain he made. Because the district court “is

in a better position to decide whether the circumstances of [a] case require”

specific performance or withdrawal, we have adopted a deferential standard of



                                          8
review for district court orders that remedy breaches of plea agreements. See

Santobello, 404 U.S. at 263, 92 S. Ct. at 499. Based on that standard, and on the

facts of this case, we cannot conclude that the district court abused its discretion by

refusing to order specific performance and by allowing Shannahan to withdraw his

plea.

B. Blakely/Booker Claim

        Because Shannahan raises his Blakely/Booker claim for the first time on

appeal, we review for plain error. See United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). To prevail under a plain error standard, the appellant must

establish: (1) an error; (2) that the error is plain; and (3) that the plain error affected

substantial rights. United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,

1785 (2002) (citation omitted). Once the appellant proves these three elements, we

may correct the error only if it “‘seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’” Id. (citation omitted).

        On 12 January 2005, the United States Supreme Court decided United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), which applied the Blakely analysis

to the Guidelines and held that their mandatory application was unconstitutional

under the Sixth Amendment. See 543 U.S. at ___, 125 S. Ct. at 749-56.

Subsequently, we have decided that, on review of Booker and Blakely claims



                                             9
raised for the first time on appeal, a district court’s enhancement of a sentence

under mandatory sentencing guidelines will meet the first and second prongs of the

plain error test. See Rodriguez, 398 F.3d at 1298-99. On review of the third

prong, however, we must determine “whether there is a reasonable probability of a

different result if the guidelines had been applied in an advisory instead of binding

fashion by the sentencing judge.” Id. at 1301. The defendant bears the burden to

show that a different outcome would have resulted in the absence of the error. See

id. at 1300. Accordingly, where it is unclear whether the sentence would have

been different had the Guidelines been applied in an advisory manner, the sentence

must be affirmed. See id. at 1301 (determining that the defendant failed to satisfy

the third prong because the record revealed nothing about whether the sentencing

judge would have imposed a different sentence had the Guidelines been advisory);

see also United States v. Shelton, 400 F.3d 1325, 1332 (11th Cir. 2005)

(concluding the defendant met the “heavy burden” on the third prong where the

sentencing judge imposed a sentence at the lower end of the Guidelines and made

several comments that “the sentence required by the Guidelines was too severe”).

      Assuming, based on Rodriguez, that Shannahan can meet the first two

prongs of the plain error test, we proceed to analyze the third prong. The district

court sentenced Shannahan to fifty-six months of imprisonment, which the district



                                          10
court characterized as “fairly much in the middle” of the applicable Guidelines

range, R10 at 94, which was fifty-one to sixty-three months. The district court

explained it was “not sentencing [Shannahan] at the low end” and it was “not

sentencing [him] at the high end” of the Guidelines range because it “kn[e]w of no

reason to sentence [him at] either place.” Id. Aside from these comments, the

district court expressed no other views about the sentence range imposed by the

Guidelines. Accordingly, it is unknown what the sentencing court would have

done if the Guidelines were considered advisory and not mandatory and therefore

Shannahan has failed to sustain his burden under Rodriguez. In addition, while the

district court did not comment on what it would have done had the Guidelines been

advisory, there are indicia that the district court would not have imposed a lesser

sentence. First, the district court enhanced the sentence for obstruction of justice

and declined to reduce the sentence for Shannahan’s acceptance of responsibility.

Second, the district court found that Shannahan was not “forthcoming and honest”

throughout the sentencing proceedings. Id. at 85. Third, we note that, in the

absence of the Guidelines, the district court could have imposed ten years of

imprisonment for each count of unlawfully transferring a firearm. 28 U.S.C. §

5871. Thus, although the district court ultimately sentenced Shannahan to the

lower-middle of the Guidelines range, we cannot conclude based on the record that



                                          11
the district court would have imposed a lesser sentence had the Guidelines been

advisory. See United States v. Orduno-Mireles, __ F.3d __, __ n.4 (11th Cir. Apr.

6, 2005) (concluding that a defendant had not met the third plain error prong

because the record demonstrated that the district court would not have imposed a

“lesser sentence” than the one given under the Guidelines). In sum, Shannahan has

failed to meet the third prong of the plain error test under Rodriguez and therefore

we reject his claim that the district court committed reversible Booker error.

C. Section 3C1.1 Sentence Enhancement for Obstruction of Justice

      When considering an appeal from a district court’s enhancement of a

sentence under § 3C1.1 of the Guidelines for obstruction of justice, the standard of

review is dictated by the circumstances of the case. “Where the district court must

make a particularized assessment of the credibility or demeanor of the defendant,

we accord special deference to the district court’s credibility determinations, and

we review for clear error.” United States v. Amedeo, 370 F.3d 1305,1318 (11th

Cir. 2004). “‘Conversely, where the defendant’s credibility or demeanor is not at

issue, and the defendant’s conduct can be clearly set forth in detailed,

non-conclusory findings, we review de novo the district court’s application of the

enhancement.’” Id. (citation omitted). Here, the district court assessed a § 3C1.1

enhancement based in part on its finding that Shannahan had not been



                                          12
“forthcoming” in the sentencing proceedings. R10 at 82. Accordingly, because

this represents a credibility determination on the part of the district court, we

review the district court’s imposition of the obstruction-of-justice enhancement for

clear error.

       Section 3C1.1 of the Guidelines provides that a district court may impose a

two-level enhancement if it finds that: (1) “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice during

the course of the investigation,” and (2) the obstructive conduct related to the

offense for which the defendant was convicted. U.S.S.G. § 3C1.1. The

Application Notes for this section of the Guidelines provide that “producing or

attempting to produce a false, altered, or counterfeit document or record during an

official investigation” is a type of action that warrants a two-level obstruction of

justice enhancement. Id. at Application Note 4(c). Construing this provision, we

have previously found that a two-level enhancement was appropriate when a

defendant produced to the government during discovery a document which was

false. See United States v. Callahan, 981 F.2d 491, 496-97 (11th Cir. 1993)

(finding that evidence discovered by the government proved that the document

could not have been executed when the defendant claimed it was executed).

       Based on the foregoing, the district court did not err in applying the



                                           13
obstruction-of-justice enhancement. Although Shannahan argues that the

enhancement should not apply because he did not fax the document to the ATF

with the intention to mislead, the district court made a credibility assessment of

Shannahan’s testimony and we must accord special deference to that

determination. Accordingly, without more than Shannahan’s assertion of his good

intentions, we cannot accept his argument. Moreover, Shannahan’s alternative

argument—that the enhancement should not apply because the ATF already had in

its possession the Zastava and therefore could not have been misled by the fax—is

equally unpersuasive. Application Note 4(c), in contrast to other types of

obstructive conduct listed in the Guidelines, does not contain any qualifier that the

production of a document materially mislead federal authorities. Compare

U.S.S.G. § 3C1.1 at Application Note 4(c), with id. at Application Note 4(d)

(stating that an enhancement is warranted for “destroying or concealing or

directing or procuring another person to destroy or conceal evidence that is

material to an official investigation”); id. at Application Note 4(g) (stating that an

enhancement is warranted for “providing a materially false statement to a law

enforcement officer). Both the plain text of Application Note 4(c) and our

precedent demonstrate that the enhancement is appropriate upon the production of

the false document to the government, which Shannahan accomplished here when



                                           14
he faxed the false document to the ATF. See Callahan, 981 F.2d at 496-97.

Additionally, Callahan refutes Shannahan’s final argument that the enhancement

cannot be applied because Shannahan sent the fax in response to the ATF’s request

for documentation. See id. (determining that a § 3C1.1 enhancement was

appropriate where defendant produced a false document in response to a

government discovery request). In essence, Shannahan sent a false document to

federal authorities knowing that it was false without informing them of its falsity.

Because this constitutes obstruction under the plain text of Application Note 4(c)

and our precedent, and because it and the evasiveness of Shannahan’s subsequent

testimony about the fax have resulted in the needless expenditure of judicial

resources to determine the truth, the district court appropriately enhanced

Shannahan’s sentence for obstruction of justice. See U.S.S.G. § 3C1.1 at

Application Note 4(c); Callahan, 981 F.2d at 496-97; United States v. Witherell,

186 F.3d 1343, 1345 (11th Cir. 1999) (per curiam) (finding § 3C1.1 enhancement

appropriate where defendant’s conduct unnecessarily caused the waste of judicial

resources).

D. Section 3E1.1 Sentence Reduction for Acceptance of Responsibility

      We review a district court’s determination as to an acceptance-of-

responsibility sentence level reduction for clear error. United States v. Williams,



                                          15
340 F.3d 1231, 1241 (11th Cir. 2003).

      Section 3E1.1 of the Guidelines provides that “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the offense

level by 2 levels.” U.S.S.G. § 3E1.1(a). A defendant can qualify for an additional

one level reduction if the defendant assists the government by timely notifying the

authorities of the intention to enter a plea of guilty. Id. at § 3E1.1(b). The entry of

a guilty plea, however, is not sufficient by itself to entitle a defendant to the

reduction. See id. at Application Note 3. Moreover, if a defendant is assessed a §

3C1.1 enhancement for obstruction of justice, the § 3E1.1 reduction can be granted

only in “extraordinary” circumstances. Id. at Application Note 4. The burden of

proof is on the defendant to show that the sentence reduction is merited. See

United States v. Paslay, 971 F.2d 667, 675 (11th Cir. 1992).

      Based on these standards, the district court did not clearly err by denying

Shannahan the § 3E1.1 reduction. Although Shannahan pled guilty twice, the

entrance of the guilty pleas did not necessarily entitle Shannahan to the reduction.

In evaluating the propriety of the reduction, the district court remarked that the

defendant was not “forthcoming” in his testimony. R10 at 85. Because the “[t]he

district court is in a unique position to evaluate whether a defendant has accepted

responsibility for his acts,” the district court’s credibility determinations are



                                            16
“‘entitled to great deference on review.’” Paslay, 971 F.2d at 675 (citation

omitted); see Williams, 340 F.3d at 1241 (noting how the district court must make

a determination of the defendant’s “sincerity”). According due deference to the

district court’s characterization of Shannahan’s testimony and conduct, we cannot

conclude that the district court’s finding—that Shannahan’s conduct did not

present an “extraordinary” case where both a § 3C1.1 enhancement and a § 3E1.1

reduction applied—was clearly erroneous. See United States v. Arguedas, 86 F.3d

1054, 1060 (11th Cir. 1996) (determining that a § 3E1.1 reduction was

inappropriate where the defendant made certain “misstatements” to investigators

and the district court).

                               III. CONCLUSION

       On appeal, Shannahan argued that the district court improperly sentenced

him to fifty-six months of imprisonment because it failed to order specific

performance of the breached plea agreement, committed Booker error, and

misapplied §§ 3C1.1 and 3E1.1 of the Guidelines. As we have explained,

however, the district court did not commit reversible error in making these

determinations at Shannahan’s sentencing. Accordingly, the sentence imposed by

the district court is AFFIRMED.




                                         17
TJOFLAT, Circuit Judge, concurring specially:

       As I explain in my dissent to the court’s refusal to rehear Rodriguez en banc,

structural error occurs, and the third prong of the plain-error test is therefore

inapplicable, where the district court enhances the defendant’s sentence on the

basis of facts not admitted by the defendant or found by a jury beyond a reasonable

doubt. See United States v. Rodriguez, — F.3d —, 2005 WL 895174 (11th Cir.

Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of rehearing en banc).2

Accordingly, the court should consider whether this structural error “seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed.2d

508 (1993). The court declines to do address this point because, as I agree, it is

Rodriguez bound.




       2
          Here, the court enhanced Shannahan’s base offense level, and thus his sentences, by
two levels pursuant to U.S.S.G § 3C1.1 for conduct he denied, obstruction of justice. Had the
court not enhanced the base offense level in this way, the Guidelines sentence range would have
been 41 to 51 months instead of 51 to 63 months, and the court could not have imposed
concurrent prison sentences of 56 months.

                                               18
