FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15372

Non-Argument Calendar

________________________

D. C. Docket No. 08-60140-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY APOLLINI DAWKINS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 10, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Anthony Apollini Dawkins appeals his 15-month sentence imposed for
illegal reentry after deportation, 8 U.S.C. § 1326(a), (b)(2). No reversible error has

been shown; we affirm.

On appeal, Dawkins contends that -- based on the arguments he presented at

the sentencing hearing about the threat of violence in his native Jamaica -- the

district court should have granted him a downward departure based on duress,

U.S.S.G. § 5K2.12. While duress can be a basis for a downward departure, the

government correctly notes that we lack jurisdiction to review the district court’s

failure to depart on this basis. See United States v. Ortega, 358 F.3d 1278, 1279

(11th Cir. 2003) (a district court’s refusal to grant a downward departure is

unreviewable on appeal unless the district court believed erroneously that it lacked

the authority to grant a downward departure). Here, the district court clearly

recognized its authority to depart downwardly based on duress but did not believe

Dawkins’s case warranted such a departure. Thus, we are precluded from

considering this argument.

Dawkins also argues that an 8-level sentencing enhancement for previously

being deported after a conviction for an aggravated felony, U.S.S.G. §

2L1.2(b)(1)(C), overstated the seriousness of his prior crimes and that the district

court should have granted a downward departure based on this overstatement.

1

This enhancement was based on Dawkins’s prior conviction for conspiracy to transport 1

stolen property. 

2
Unlike Dawkins’s request for a departure based on duress, the district court did not

acknowledge explicitly its authority to depart on this basis. The court simply noted

that, even though Dawkins had a criminal history category of one (based on the

staleness of his prior convictions), the court -- in determining an appropriate

sentence -- could not ignore that he had four felony convictions. We resolve

ambiguity in the district court’s recognition of its authority to grant a downward

departure in Dawkins’s favor and consider whether the district court erroneously

believed it had no authority to depart. See Ortega, 358 F.3d at 1279.

2

The basis of the departure Dawkins sought is unclear. As he did in the

district court, he cites out-of-circuit cases discussing previous versions of section

2L1.2(b)(1) where the commentary noted explicitly that departures may be

warranted if enhancements based on prior felonies overstated the seriousness of the

underlying felony. But the 2007 guidelines that Dawkins was sentenced under

contained no such commentary. See generally U.S.S.G. § 2L1.2(b)(1), comment.

(2007). While Dawkins argues that his crime of conspiracy to transport stolen

property is non-violent and did not indicate that he was likely to commit more

crimes, we previously concluded -- under a more recent version of the guidelines --

The district court also used the terms “variance” and “departure” interchangeably at 2

sentencing, further making it unclear whether the court recognized the pertinent authority to

depart.

3
that section 2L1.2 takes into account the differences in the severity among

aggravated felonies. See Ortega, 358 F.3d at 1279-80 (noting that amendments to

section 2L1.2 provided for various base level enhancements according to the kind

of prior felony conviction, thus precluding a departure based on the severity of the

underlying felony). We, therefore, conclude that the district court lacked authority

to depart downward on the basis that the guideline enhancement overstated the

severity of Dawkins’s criminal history.

To the extent Dawkins sought a downward departure based on his criminal

history category, the district court had no authority to depart on this basis either.

Because of the staleness of Dawkins’s prior felonies, he had a criminal history

category of I. While a downward departure “may be warranted” when the

defendant’s criminal history category overrepresents the defendant’s criminal

history or the likelihood that he will commit other crimes, U.S.S.G. § 4A1.3(b)(1),

a departure below the lower limit of the applicable guideline range for category I is

prohibited, U.S.S.G. § 4A1.3(b)(2)(A).

Dawkins also challenges the enhancement by arguing that he did not commit

an aggravated felony. We review this argument only for plain error because

Dawkins did not raise it in the district court. United States v. Gresham, 325 F.3d

1262, 1265 (11th Cir. 2003). Under plain-error analysis, Dawkins must show that

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“(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights;

and (4) it seriously affected the fairness of the judicial proceedings.” Id.

Under U.S.S.G. § 2L1.2(b)(1)(C), an eight-level enhancement is warranted

“[i]f the defendant previously was deported, or unlawfully remained in the United

States, after . . . a conviction for an aggravated felony[.]” The term “aggravated

felony” has the same meaning as that term is given in 8 U.S.C. § 1101(a)(43). See

U.S.S.G. § 2L1.2(b)(1)(C), comment. n.3(A). This definition includes a “theft

offense (including receipt of stolen property) or burglary offense for which the

term of imprisonment” is at least one year or conspiracy to commit a theft offense.

8 U.S.C. § 1101(a)(43)(G), (U). Neither we nor the Supreme Court has addressed

directly whether conspiracy to transport stolen property qualifies as an aggravated

felony. So, Dawkins cannot show error that was plain. See United States v.

Humphrey, 164 F.3d 585, 588 (11th Cir. 1999) (an error cannot be plain if such

error is not obvious or clear under current law).

3

AFFIRMED.

And it appears that Dawkins’s conviction for conspiracy to transport stolen property 3

would qualify as an aggravated felony theft offense. See Jaggernauth v. U.S. Attorney Gen., 432

F.3d 1346, 1353 (11th Cir. 2005) (in reviewing a decision by the Board of Immigration Appeals,

applying a general definition of theft that required a “criminal intent to deprive the owner of the

rights and benefits of ownership, even if such deprivation is less than total or permanent”). 

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