           Case: 16-14695   Date Filed: 01/11/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14695
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 2:15-cr-00283-LSC-HGD-10

UNITED STATES OF AMERICA
                                                              Plaintiff-Appellee,

                                  versus



TEDDY TONELL DAVIS,
a.k.a. Fresh,

                                                         Defendant-Appellant.

                      ________________________

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

                            (January 11, 2018)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 16-14695     Date Filed: 01/11/2018    Page: 2 of 4


      Teddy Tonell Davis appeals his 188-month total sentence, imposed after he

pled guilty to 1 count of conspiracy to possess with intent to distribute and

distribute a mixture containing heroin, cocaine, and cocaine base, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; and 3 counts of use of a communication

device to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b).

Davis pled guilty pursuant to a plea agreement, in which he stipulated that two

kilograms of cocaine were attributable to him. He was sentenced pursuant to 21

U.S.C. § 841(b)(1)(B), which assigns a statutory imprisonment range of 5 to 40

years for crimes involving 500 grams or more of cocaine. His Sentencing

Guideline calculations were then based on that statutory range.

      Davis now argues on appeal that there was no factual basis to support the

drug amount. Thus, he argues, there was no factual basis for his guilty plea.

“When a defendant . . . fails to object in the district court to a Rule 11 violation,

including a claim that there was an insufficient factual basis for a guilty plea,” we

review for plain error. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir.

2014). Under plain error review, there be must (1) an error, (2) that is plain, (3)

that affects the defendant’s substantial rights. See id. In the context of a Rule 11

challenge, the defendant must demonstrate that “but for the error, he would not

have entered the plea.” United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340

(2004). Davis argues that he contested the factual basis for the plea when he stated


                                           2
               Case: 16-14695     Date Filed: 01/11/2018    Page: 3 of 4


“I ain’t played a role they accused me of playing” during the sentencing hearing.

Even assuming that this statement constituted an objection to the factual basis

underlying the plea, we still affirm the district court’s decision.

      “Before entering judgment on a guilty plea, the court must determine that

there is a factual basis for the plea.” Fed. R. Civ. P. 11(b)(3). “The standard for

evaluating challenges to the factual basis for a guilty plea is whether the trial court

was presented with evidence from which it could reasonably find that the

defendant was guilty.” United States v. Frye, 402 F.3d 1123, 1128 (11th Cir.

2005). The conviction that Davis is challenging in this case was for possession

with the intent to distribute and distribution of 500 grams or more of cocaine.

Thus, the judge must have been presented with facts from which it could

reasonably find that defendant possessed 500 grams or more of cocaine. The

Presentence Report (PSI) indicated that two kilograms were “attributable to Teddy

Tonell Davis for his role in the conspiracy.”

      Davis argues that the factual evidence available at sentencing only shows

that he was responsible for, at most, 321 grams of cocaine. Davis further argues

that, under the sentencing guidelines, the district court must “make a specific

determination of the scope of criminal activity.” Here, Davis conflates the court’s

obligation under Rule 11 and the import of the sentencing guidelines. Davis is

challenging the factual basis for his plea under Rule 11, not the application of the


                                           3
               Case: 16-14695    Date Filed: 01/11/2018    Page: 4 of 4


sentencing guidelines in this case. It is clear, based on the evidence of cocaine

attributable to Davis, along with the evidence of the wider conspiracy, that the

court could reasonably find that Davis was a part of a conspiracy, and that more

than 500 grams of cocaine were attributable to Davis based on his role in the

conspiracy. These facts satisfy the court’s Rule 11 obligation to find a sufficient

factual basis for the plea.

      For the foregoing reasons, the district court’s judgment is

      AFFIRMED.




                                          4
