           Case: 11-12251   Date Filed: 11/06/2012   Page: 1 of 6

                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-12251
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:09-cr-00179-MEF-SRW-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

VANDRICIA DEISHON FINLEY,

                                                     Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (November 6, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Vandricia Finley appeals his 188-month sentence for possession with intent

to distribute 50 grams or more of crack cocaine. For the reasons that follow, we

dismiss the appeal in part and affirm in part.

                                            I.

       Finley pleaded guilty to the sole charge against him pursuant to a plea

agreement, which included a waiver of Finley’s right to appeal or collaterally

challenge his sentence. At the change-of-plea hearing, the court explained the

waiver to Finley, and Finley stated that he understood the terms of the appeal

waiver. He then admitted that he possessed fifty grams or more of crack cocaine

with the intent to distribute it.

       At sentencing, the court determined that Finley was responsible for an

amount of crack equivalent to 635,918 kilograms of marijuana and 3,038

kilograms of powder cocaine. When combined for a total of 638,957 kilograms,

the amount corresponded to a base offense level of 38. After including all

applicable enhancements and reductions, including a reduction for substantial

assistance under U.S.S.G. § 5K1.1, the court determined the guideline range to be

188 to 235 months’ imprisonment, and it sentenced Finley to 188 months’

imprisonment. After the sentence was imposed, Finley stated his objection to the

quantity of drugs for which he was held responsible. Finley now appeals the

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reasonableness of his sentence and the district court’s failure to apply the Fair

Sentencing Act,1 which lowered the mandatory minimum sentences – and the

quantity of drugs necessary to trigger such sentences – applicable to crack cocaine

offenses.

                                              II.

      Before we reach the merits of Finley’s appeal, we must first address the

appeal waiver that was part of Finley’s plea agreement. We review the validity of

an appeal waiver de novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th

Cir. 1993). An appeal waiver is enforceable if it was made knowingly and

voluntarily, and for this court to enforce it the government must demonstrate either

that “(1) the district court specifically questioned the defendant concerning the

sentence appeal waiver during the Rule 11 colloquy, or (2) it is manifestly clear

from the record that the defendant otherwise understood the full significance of

the waiver.” Id. at 1351.

      Our review of the record confirms that Finley’s waiver was entered into

knowingly and voluntarily. Indeed, Finley does not argue otherwise. We

therefore conclude that the waiver is enforceable. Accordingly, to the extent that

Finley challenges the drug quantity attributable to him or argues that his sentence


      1
          The Fair Sentencing Act of 2010, Pub.L. No. 111-120, 124 Stat. 2372 (2010).

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was otherwise unreasonable, such issues are barred by the waiver and we dismiss

the appeal with respect to these issues.

       But we need not reach this issue of whether the appeal waiver applies to

Finley’s claim that he should have been, but was not, sentenced under the Fair

Sentencing Act because the government has expressly waived its right to enforce

the appeal waiver with respect to that claim.2 Accordingly, we will address the

merits of Finley’s Fair Sentencing Act claim.

                                               III.

       Finley did not object to the court’s failure to apply the Fair Sentencing Act,

leaving him with the more difficult plain error standard of review. See United

States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To meet this standard,

Finley must show an (1) error, (2) that is plain and (3) that affects substantial

rights. If all three conditions are met, an appellate court may exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 1276

(internal citation omitted).

       The Supreme Court has clarified that the Fair Sentencing Act applies to



       2
         In response to our request for supplemental briefing, the government concedes that it is
not seeking to enforce the appeal waiver with respect to Finley’s Fair Sentencing Act claim.

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those defendants who, like Finley, committed their acts before but were sentenced

after the Act went into effect. Dorsey v. United States, 132 S.Ct. 2321, 2331, 2335

(2012). We thus conclude that Finley can show an error that was plain. See

United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (“[a]lthough the

error was not ‘plain’ at the time of sentencing, ‘where the law at the time of trial

was settled and clearly contrary to the law at the time of appeal—it is enough that

the error be ‘plain’ at the time of appellate consideration.’” (quoting Johnson v.

United States, 520 U.S. 461, 468 (1997)).

      But Finley cannot show that his substantial rights were affected. Finley was

held responsible for a staggering amount of drugs, placing him well above the

quantities necessary to trigger the mandatory minimum sentences that were revised

under the Fair Sentencing Act. See 21 U.S.C. § 841 (2006 & Supp. V 2012).

Even if the court had applied the Fair Sentencing Act, Finley’s base offense level

and guideline range would not have been different. And the mandatory minimum

sentences played no role in the sentence imposed. Thus, Finley cannot show that

the district court’s error affected his substantial rights. See United States v.

Rodriguez, 406 F.3d 1261, 1262-63 (11th Cir. 2005) (explaining that an error

affects substantial rights when it “affected the outcome of the district court

proceedings” (internal quotation marks omitted)). Accordingly, we affirm

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Finley’s sentence.

      DISMISSED in part, and AFFIRMED in part.




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