                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              APR 10, 2007
                               No. 06-13977                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 06-00017-CR-5-RS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

DANIEL PAUL KRITZER,

                                                           Defendant-Appellant.


                         ________________________

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

                               (April 10, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Daniel Paul Kritzer appeals his 85-month sentence for conspiracy to possess
with intent to distribute 500 grams or more of cocaine base, or crack cocaine, in

violation of 21 U.S.C. § 841(b)(1)(A)(iii), (B)(ii). We AFFIRM.

                                I. BACKGROUND

      A search warrant was executed on Kritzer’s home, where three grams of

cocaine base were found. He agreed to cooperate with law enforcement

concerning the source of the cocaine. Kritzer acknowledged that he was a regular

distributor for James Banks, III, and Kendrick Blackmon. Subsequently, he made

a controlled purchase of cocaine base from them. As a result of a search warrant,

Banks was interviewed and identified Kritzer and Blackmon as members of a

cocaine-distribution conspiracy. Investigative efforts revealed that Kritzer had

been supplied with cocaine base at a rate of 5 grams per transaction, for a total of

50 transactions, equaling 250 grams of cocaine base. As part of the investigation,

400 grams of cocaine base were seized from Blackmon, although those drugs were

not attributable to Kritzer, which left him accountable for only 250 grams.

      A grand jury indicted Kritzer for conspiracy to possess with intent to

distribute 500 grams or more of cocaine base in violation of 21 U.S.C.

§ 841(b)(1)(A)(iii), (B)(ii). He pled guilty pursuant to a plea agreement. The

Presentence Investigation Report (“PSI”) assigned him a base offense level of 34,

pursuant to U.S.S.G. § 2D1.1(c)(3), because the offense involved 250 grams of



                                           2
cocaine base, which was enhanced by two levels under § 2D1.1(b)(1) for

possession of a firearm by a codefendant, and reduced by three levels for

acceptance of responsibility under § 3E1.1, resulting in a total offense level of 33.

With a criminal history of IV, his Sentencing Guidelines range was 188 to 235

months of imprisonment. Kritzer objected to the use of information relating to

drug quantity that had been obtained by the government subsequent to his arrest as

violating Federal Rule of Evidence 410 and to information obtained that had led to

the arrest of his codefendants. He argued that, without that information, his base

offense level would be 11 or 13.

      At sentencing, Kritzer’s counsel argued that his drug-quantity calculation

was improper because the evidence relied upon by the government came from: (1)

an illegal search of his house, and (2) a promise of no prosecution in return for his

assisting the government. He contended that incriminating information given to

the government, pursuant to an agreement that the information would not be used

against him, should not be used to determine his Guidelines sentencing range.

Kritzer’s counsel asserted that the information provided by his codefendants after

their arrest was a derivative use of the information that he had provided through

proffer and cooperation, since the codefendants were arrested because of his

cooperation. He further argued that the information that he had provided was not a



                                           3
spontaneous confession but had resulted from plea negotiations while assisting

federal agents. While the Assistant United States Attorney (“AUSA”) stated that no

federal agent promised Kritzer anything relative to the statements that he had

made, the AUSA agreed that the judge should make a determination as to the drug

quantity and said that he was prepared to present evidence substantiating the drug

quantity.

      James Larson, a deputy sheriff for Bay County, testified that an investigation

of Kritzer regarding a check-fraud scheme resulted in a search of his house, after

consent by Kritzer’s roommate. He stated that, when marijuana was found,

consent was withdrawn, a warrant was executed, and crack cocaine was found.

Deputy Larson testified that, during an interview, Kritzer sought a promise of no

prosecution in return for his cooperation, but Deputy Larson “t[old] him that he

was going to get a criminal charge” to be determined later. R2 at 22. While Kritzer

named Blackmon as his supplier, Deputy Larson was aware of Blackmon’s

activities. Deputy Larson testified that Kritzer made a controlled telephone call to

Blackmon the following morning and negotiated a transaction involving both

Blackmon and Banks, which led to their arrests. He testified that Kritzer

ultimately was charged with a misdemeanor marijuana offense but that there was

no question in his mind that he could have charged Kritzer with more, and any



                                          4
statement that Kritzer had made in the course of his cooperation could be used

against him.

      On cross-examination, Deputy Larson conceded that, without consulting the

State Attorney’s Office, he had agreed in the past not to arrest suspects in exchange

for their cooperation. He testified that the sheriff’s office did not consult the state

attorney’s office on arrests. On redirect, Deputy Larson testified that Kritzer was

prosecuted criminally and that the prosecution had informed Kritzer “from the very

onset [during his initial interview] that he would be charged criminally.” Id. at 54.

      Officer Duncan, of the Drug Enforcement Agency Task Force, testified that,

in a conversation with Kritzer regarding Kritzer’s cooperation in any federal

investigation, he had warned Kritzer that he could make no promises about what

the AUSA would do, although he would make the AUSA aware of Kritzer’s

cooperation. Officer Duncan testified that, despite Kritzer’s constant questions

regarding immunity, Officer Duncan stated that he could not speak for the

government or the court.

      The district judge later clarified that Kritzer’s contention was that the

information acquired by the government regarding drug quantity occurred in part

after the plea negotiations had commenced. Regarding his drug transactions with

Kritzer, Banks testified that he had sold Kritzer a “quarter ounce” of cocaine every



                                            5
other week for a year or two. Id. at 85. On cross-examination, Banks conceded

that he had not kept records of the drug transaction and was not exactly sure of the

time frame when Kritzer began to buy from him, except that it was around the time

that another person went to jail.

      Kritzer’s counsel then argued that Kritzer had begun plea negotiations

almost instantly after his arrest, in “responsive” conversations to “direct

inquisition” from law enforcement. Id. at 95. He contended that he had to prove

that he subjectively believed that he had commenced plea negotiations and,

because he was advised that he could cooperate with law enforcement, his belief

that he was giving officers information in exchange for a plea, was subjectively

reasonable. He asserted that, without the debriefing interviews, law enforcement

would not have been able to attribute the alleged drug quantities to him.

      The government had not agreed to a deal with Kritzer, and information

regarding fifty buys came from Kritzer’s statements during an interview when the

government refused to commit to a deal. Id. at 97-98. At the end of that interview,

Kritzer stated that he had made all of the statements of his own free will without

any promises or coercion from the government. Id. at 99. The government argued

that the state officer’s decision to charge Kritzer only with “state misdemeanor,

pot” was not binding on the AUSA and was not a result of a promise to him. Id. at



                                           6
100. Additionally, the drug quantities were admissible because the government

would have discovered Banks without Kritzer, and other testimony would have

established additional drugs for which Kritzer could have been held accountable.

Id. at 101-02.

      Kritzer’s counsel argued that the only drugs for which he should be held

responsible were the ones initially found in his home because; thereafter, he began

negotiating a plea. He contended that, under U.S.S.G. § 1B1.8, the judge should

not use information from plea negotiations to determine his Guidelines sentence.

He asserted that further evidence that there was an agreement was the fact that the

state authorities never arrested his live-in girlfriend, because they agreed not to do

so in return for Kritzer’s cooperation.

      After a brief recess, Kritzer’s counsel stated:

      I would like an opportunity to address the court on my objections.
      I’ve talked to the government . . . . I had an extensive conversation
      with my client . . . . [T]he whole issue is going to turn on whether or
      not plea negotiations had commenced or not . . . . However, in the
      interest of avoiding any further litigation and confrontation, . . . we
      would like to ask the court . . . [to] allow us to redact certain
      objections.

R2 at 114-15. The counsel then asked to withdraw all of his objections, except his

objection to the firearm enhancement. The judge asked: “[Y]ou have resolved the

proper quantity to be considered for sentencing purposes?” Id. at 116. Kritzer’s



                                           7
counsel replied, “Right.” Id.

      The district judge granted Kritzer’s objection to the two-level firearm

enhancement. The drug quantity stayed the same, however, and the new offense

level became 31, with a Guidelines range of 151-188 months of imprisonment.

The government made a U.S.S.G. § 5K1.1 motion for a downward departure

because of Kritzer’s assistance. The judge sentenced Kritzer to 85 months of

imprisonment based upon the government’s motion. Kritzer’s counsel made no

objections to the ultimate findings of fact or conclusions of law relating to the

sentence.

                                  II. DISCUSSION

      On appeal, Kritzer argues that the sentencing judge erred in using

information for sentencing purposes that had been elicited through his plea

negotiations, because, under Federal Rule of Criminal Procedure 11(f) and Federal

Rule of Evidence 410, any statements made in connection with an offer to plead

guilty are inadmissible. He argues that there must be a two-part analysis: (1)

whether there was an actual subjective expectation to negotiate the plea at the time

of the admission, and (2) whether the expectation was reasonable under the

objective circumstances. Kritzer contends that, if the accused offers to plead

guilty, then the discussions are inadmissible. He asserts that there is a distinction



                                           8
between an offer to do something in furtherance of a plea, rendering it

inadmissible, and an independent admission, made separate from plea negotiations,

which is admissible. Kritzer contends that it is reasonable to assume that a

defendant’s cooperation is prompted by a desire for leniency, and, therefore, his

proffer to the government agents constituted an inadmissible plea negotiation

because his statements were more than a bargained-for confession. He further

argues that he would not have made a confession to the broader conspiracy, of

which the government was not aware, unless he was trying to negotiate a plea.

Even assuming that the government indicated that no deal could be negotiated, he

contends that he was misled because he was told that “he would help himself if he

confessed” and cooperated. Appellant’s Br. at 26.

      As a preliminary matter, Kritzer’s objection appears to have been waived.

R2 at 116. In a similar situation, where a defendant knowingly withdrew his

objection, we found that the plain-error doctrine is inapplicable and that he is

bound by the district judge’s error. United States v. Masters, 118 F.3d 1524, 1526

(11th Cir. 1997) (per curiam). In Masters, defense counsel objected to an upward

departure, but the district judge insisted on departing; whereafter, counsel stated

that, at the request of his client, he was withdrawing his objection. Id. Similarly,

Kritzer’s counsel consistently objected to being held accountable for the amount of



                                           9
drugs in the PSI. See, e.g., R2 at 10, 11, 95-97. After a recess, however, defense

counsel stated that, in view of the circumstances, he was withdrawing his

objections to the drug quantity and that all of the issues concerning the proper

quantity to be considered for sentencing purposes had been resolved. Id. at 115-

16. Therefore, he knowingly withdrew his objection and is bound by the ruling on

the drug quantity. Masters, 118 F.3d at 1526. Because Kritzer’s counsel

knowingly withdrew his objection to the calculation of the drug quantity during the

sentencing hearing, it was invited error; therefore, the issue is waived.1

                                      III. CONCLUSION

       Kritzer has appealed his 85-month sentence for conspiring to distribute

cocaine base because of the district judge’s reliance on the drug quantity adduced

during his plea negotiations. Because Kritzer’s counsel knowingly withdrew his

objection to the calculation of the drug quantity during the sentencing hearing, it


       1
         We additionally note that Kritzer’s sentence can be affirmed on the merits because his
statements were made only to law enforcement officials during a debriefing, not during a plea
negotiation with a prosecuting authority, and the federal agent on the case specifically warned
Kritzer that he had no authority regarding the prosecution. See Fed. R. Crim. P. 11(f) (“The
admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed
by Federal Rule of Evidence 410.”); Fed. R. Evid. 410(4) (“[E]vidence of the following is not, in
any civil or criminal proceeding, admissible against the defendant who made the plea or was a
participant in the plea discussions[:] . . . any statement made in the course of plea discussions with
an attorney for the prosecuting authority which do[es] not result in a plea of guilty or which result[s]
in a plea of guilty later withdrawn.” (emphasis added)). Significantly, we have held that “the
automatic exclusion rule of Rule 11[(f), formerly Rule 11(e)(6)] ‘does not extend to statements made
to law enforcement agents, as distinguished from government counsel.’” United States v. Davidson,
768 F.2d 1266, 1270 (11th Cir. 1985) (citation omitted).

                                                  10
was invited error, and Kritzer waived the issue. Accordingly, Kritzer’s sentence is

AFFIRMED.




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