                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-10306                 ELEVENTH CIRCUIT
                                                                MARCH 9, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                      D. C. Docket No. 08-00094-CR-KD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOSE JESUS CASTREJON,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                (March 9, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Jose Jesus Castrejon (“Castrejon”) appeals his conviction for conspiracy to
possess with intent to distribute more than 500 grams of methamphetamine in

violation of 21 U.S.C. § 841(a)(1). Although he argues that the district court failed

to comply with Rule 11 when it acquiesced to the parties’ agreement to defer

determination of the applicable drug quantity until sentencing but later failed to

make the required determination, he invited any alleged error by adopting the Pre-

sentence Investigation Report (“PSI”). Therefore, we AFFIRM.

                                I. BACKGROUND

      Castrejon was indicted by a grand jury for one count of conspiracy to

possess with intent to distribute more than 500 grams of methamphetamine in

violation of 21 U.S.C. § 841(a)(1), two substantive counts under the same statute,

and one forfeiture count. R1-11. The indictment alleged that the conspiracy

covered the period from early 2005 to 17 March 2008. Id. at 1. He pled guilty to

the conspiracy count pursuant to a written plea agreement, and the remainder of the

counts were dismissed. R1-34 at 1. The plea agreement stated that the maximum

penalty that could be imposed was 10 years to life imprisonment. R1-26 at 3. In

the plea agreement, Castrejon agreed that the factual resume filed with the plea

agreement was true and correct. Id. at 2.

      The factual resume detailed transactions with confidential informants in

2008 involving a total of approximately 198 grams. R1-27 at 1-5. It also indicated



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that, in 2005, Castrejon had provided another informant with methamphetamine,

beginning with three to four ounces at a time and including two occasions on

which he delivered one pound. Id. at 7. Finally, it noted that the “parties do not

agree on the drug amount for which the defendant is accountable, and have agreed

to allow the Court to make that determination at the time of the sentencing.” Id.

       At the guilty plea hearing, Castrejon indicated that he understood the terms

of his plea agreement. R1-57 at 8. The district court informed him that the

“maximum penalty the Court could impose is a minimum 10 years up to life

imprisonment,” and he indicated that he understood. Id. at 10. In explaining the

charges to Castrejon, the court stated that the “government has alleged more than

500 grams of methamphetamine were involved in the conspiracy, but I understand

that you and the government do not agree on the amount and that that will be left

for sentencing.” Id. at 14. Finally, the court confirmed that Castrejon understood

and agreed that by signing the factual resume, he was agreeing that the government

could prove the facts set forth in it. Id. at 15.

       Following this hearing, the probation officer prepared a PSI, which noted

that the parties did not agree on the drug amount. PSI ¶ 16. However, the

probation officer also stated that the government’s records reflect that Castrejon

was involved with 4.508 kilograms, and, therefore, the probation officer stated he



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would use that amount in calculating the guidelines range. Id. The probation

officer determined that Castrejon’s base offense level was 38 because the offense

involved 1.5 kilograms or more of “Ice” methamphetamine. Id. at ¶ 21. After a

three-level reduction for acceptance of responsibility, his total offense level was

35. Id. at ¶¶ 27, 28, 31. Because he had no criminal history – a criminal history

category of I – his guidelines range was 168 to 210 months. Id. at ¶¶ 35, 63. The

PSI also indicated that the statutory minimum was 10 years and the maximum was

life imprisonment. Id. at ¶ 62. In his written response to the PSI, Castrejon stated

that he had no objections and that he adopted “the application and determination of

sentencing factors and the guidelines calculations contained therein.” R1-32.

      At the sentencing hearing, the court noted that it had not received any

objections from the defense then stated that the “PSI indicated perhaps there was a

dispute over the amounts. But I never received any objections over the amount of

drugs involved.” R1-50 at 3. The government responded, “That’s correct, your

Honor. I spoke with [the defendant’s attorney] to confirm that he had no

objections. And he confirmed for me that there were no objections and indicated

that [another attorney] would be standing in for him today.” Id. When imposing

Castrejon’s sentence, the court commented, “Quite frankly I did not see in the

[PSI] enough evidence to support the four kilograms or the 1.5 kilograms to hold



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this defendant responsible. But since there is an agreement to that I would find that

amount.” Id. at 8. In light of the fact that this was his first offense and he had a

consistent work history, the court sentenced him to the mandatory minimum

sentence of 10 years’ imprisonment, which was below the guidelines range. Id.

When asked for objections, Castrejon responded that he had no objections. Id. at 9.

                                  II. DISCUSSION

      On appeal, Castrejon argues that because the district court that accepted his

guilty plea acquiesced in the parties’ agreement to defer the determination of

statutory drug quantity until sentencing, the court could not comply with the

requirement of Rule 11 that he be informed of both the maximum possible penalty

and the mandatory minimum penalty. He does not, however, suggest that the court

committed Rule 11 error during the guilty plea hearing. Instead, he argues that the

Rule 11 error occurred when the district court failed to make the statutory drug

quantity determination at sentencing. He asserts that the court reluctantly adopted

the PSI’s guideline calculation of drug quantity because there were no objections

to the amount, not because there was sufficient evidence to support that amount,

but maintains that his failure to object to the drug quantity calculation for purposes

of calculating his guidelines range should not be interpreted as his acquiescence to

that amount in the context of establishing the drug quantity for purposes of



                                           5
§ 841(b). Therefore, he asserts that he is entitled to plain error relief because (1)

his substantial rights were affected because the imposition of a mandatory

minimum sentence without a finding that it should have applied limited the court’s

sentencing discretion, (2) a conviction based on evidence that the court found

“frankly” insufficient seriously affects the fairness, integrity, or public reputation

of judicial proceedings, and (3) he would not have bargained for a deferred

determination of the statutory drug amount and associated minimum and maximum

penalties if he had intended to plead guilty to a ten-year mandatory minimum

sentence.

      We review a Rule 11 error raised for the first time on appeal for plain error.

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under plain error

review, the defendant has the burden to show that: (1) there is an error, (2) that is

plain or obvious, (3) affecting the defendant’s substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. Id. We may consider the whole record when considering whether

Rule 11 error occurred or prejudiced the defendant. See United States v. Vonn, 535

U.S. 55, 74-75, 122 S.Ct. 1043, 1054-55 (2002).

      In order to show that his substantial rights were affected, a “defendant who

seeks reversal of his conviction after a guilty plea, on the ground that the district



                                            6
court committed plain error under Rule 11, must show a reasonable probability

that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340 (2004). The fact that a

defendant did not move to withdraw his guilty plea upon learning of a mistake

suggests that he cannot make this required showing. See United States v.

Bejarano, 249 F.3d 1304, 1306-07 (11th Cir. 2001) (per curiam).

      However, we are precluded “from reviewing an issue raised on appeal if it

has been waived through the doctrine of invited error.” United States v. Brannan,

562 F.3d 1300, 1306 (11th Cir. 2009) (emphasis in original). The “doctrine of

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

making an error.” Id. (citation omitted). We have applied the doctrine to alleged

errors in the plea process that were not corrected at sentencing, as well as to

alleged errors that originated at sentencing. See United States v. Love, 449 F.3d

1154, 1157 (11th Cir. 2006) (per curiam); United States v. Harris, 443 F.3d 822,

824 (11th Cir. 2006).

      In this case, the doctrine of invited error applies. Castrejon was aware that

the determination of the applicable drug amount was being deferred until the

sentencing hearing; however, rather than filing objections to the PSI’s use of more

than 1.5 kilograms in its calculations, he filed a response with the court stating that



                                           7
he “adopt[ed] the application and determination of sentencing factors and the

guidelines calculations contained therein.” R1-32. As a result of his adoption of

the PSI’s calculations, the district court, at sentencing, acquiesced in the use of that

drug amount even though it questioned whether there was sufficient evidence to

support finding him responsible for it. See R1-50 at 8. Thus, Castrejon invited any

error that he alleges occurred, and we will not review his claim.

                                 III. CONCLUSION

      Castrejon’s appeal based upon the district court’s alleged failure to comply

with Rule 11 is predicated upon invited error. Accordingly, we reject Castrejon’s

appeal and AFFIRM his conviction and sentence.




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