[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 15208 Non

- Argument Calendar

________________________ D.C. Docket No. 3:18

- cr - 00059

- RV

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee.

versus ABBISINA HEPBURN, Defendant

- Appel lant.

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

________________________ (January 7, 2020) Before WILSON, JORDAN and ANDERSON , Circuit Judges.
PER CURIAM:

Case: 18-15208 Date Filed: 01/07/2020 Page: 1 of 112 Abbisina Hepburn appeals her con viction s and 188

- month sentence imposed after she pleaded guilty to four charges related to a drug conspiracy and other drug offenses. First, she challenges the validity of her plea agreement, asserting that she did not knowingly and voluntarily enter th e ple a . Second, she contends that she was sentenced based on a greater quantity of drugs tha n should have been attributed to her. Third, she attempts to adopt an argument from her co

- defendant’s brief

— that her sentence was improperly enhanced for maintaining premises for the purpose of manufacturing or distributing drugs. For the following reasons, w e affirm.
I A The underlying drug conspiracy can be summarized as follows. 1 Beginning in November of 2015, Ms. Hepburn and her husband, Damian Hepburn, began traveling to Destin, Florida to distribute hydromorphone and oxycodone. They would first obtain fraudulent prescriptions from a woman in Miami Gardens, Florida

. They would then travel to the Jares Pharmacy in Sebring, Florida, where pharmacist Angela Clark would fill the prescriptions. Ms. Clark would give the pills to Ms. and Mr. Hepburn, who would then unlawfully distribute them. The prescriptions were written by Dr. Tony Diaz.

1 These facts are drawn from Ms. Hepburn’s factual proffer , portions of the p resentence i nvestigation r eport that Ms. Hepburn did not object to, and Agent Barry Hatton’s undisputed testimony at the sentencing hearing.

Case: 18-15208 Date Filed: 01/07/2020 Page: 2 of 113 According to M s. Clark, the Hepburns fill ed about 10 to 11 prescriptions per week for 140 or 150 oxycodone or hydromorphone tablets

. They took turns going to the pharmacy. After picking up the pills, Ms. Hepburn would stay at either a n apartment in Destin, or one of t wo hotels in the area , while selling th em . When she needed more prescriptions, she would travel back to Miami Gardens to re

- supply , repeating this process frequently

. B On August 7, 2018, a federal grand jury charged Ms. Hepburn in a superseding indictment with one count of conspiracy to distribute and possess with intent to distribute hydromorphone and oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; two counts of dist ribution of hydromorphone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and one count of possession with intent to distribute hydromorphone and oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). It also charged Mr. Hepburn with cons piracy and other drug

- related offenses and Ms. Clark with conspiracy. Ms. Hepburn pleaded guilty to all four charges against her pursuant to a written plea agreement

. The plea agreement, which was signed by both Ms. Hepburn and her counsel, provided “[t]hat by voluntarily pleading guilty,” Ms. Hepburn “knowingly waives and gives up constitutional rights which attend a Defendant on trial in a criminal case.” It went on to explain that these rights include: “the right to

Case: 18-15208 Date Filed: 01/07/2020 Page: 3 of 114 plead not guilty; the right to have a jury or judge determine guilt on the evidence presented; the right to compel the government to prove guilt beyond a reasonable doubt; the right to confront and cross

- examine witnesses; the right not to be compelled to incriminate oneself; the right to testify; the right to present evidence; and the right to compel the attendance of witnesses.” At the plea colloquy, the district court questioned Ms. Hepburn to ensure s he understood that she was waiving these rights

. Ms. Hepburn confirmed under oath that she did

. S he testified that she carefully read the plea agreement and factual proffer with her attorney and understood the terms and conditions of the agreements and the consequences of her plea

. She further testified that no one made any promises to her or used threats, force, pressure, or intimidation to induce her to plead guilty. She also confirmed that sh e was satisfied with her attorney’s representation. The district court found Ms. Hepburn to be “alert and intelligent

. ” It also found that she understood “the nature of the charges” against her, and “realize[d] and appreciate[d] the consequences of a p lea of guilty to those charges.” Accordingly, the district court concluded that she made the decision to plead guilty “freely knowingly and voluntarily ” and accepte d her plea. C
T he probation officer completed a presentence investigation report (“PS I ” )

. The PS I determined the drug quantity applicable to Ms. Hepburn based on the

Case: 18-15208 Date Filed: 01/07/2020 Page: 4 of 115 prescriptions that were issued in Dr. Tony Diaz ’s name , which, according to the
g overnment, were all fraudulent

. Using the drug equivalency table, the PSI attributed 4,628.48 k ilograms of marijuana to Ms. Hepburn. Prior to the sentencing hearing, Ms. Hepburn did not object to the PS I ’s drug weight computation

. She did, however, object to other enhancements, and the
g overnment called Florida Department of Law Enforcement Agent Barry Hatton to testify in response to those objections at the sentencing hearing. After Agent Hatton’s testimony, Ms. Hepburn’s counsel asked the district
court “ to consider that the [drug] we ight quantity is somewhat overstated because each of Mr. Hepburn and Ms. Hepburn are being held accountable for all the weight for all the drugs that were obtained from that pharmacy, but the two of them basically acted and worked independent of one anothe r.” The district court noted that Ms. Hepburn had no t object ed to the weigh t calculation in the PS I

. It then overruled the ore tenus objection, explaining th a t both
M s . and M r. Hepburn could be accountable for the full amount of fraudulent prescriptions obtained from the pharmacy because “they were basically in this together

. ” The district court applied sentenc ing enhancements for being a leader in the conspiracy (reduced by the distri ct court to two levels) , using a minor in the commission of the offense, and maintaining a property in Dentin for the purpose of

Case: 18-15208 Date Filed: 01/07/2020 Page: 5 of 116 distributing drugs

. I t then determined that Ms. Hepburn’s advisory range under the Sentencing Guidelines was 210

– 262 months ’ imprisonment , and imposed a below

guidelines sentence of 188 months’ imprisonment as to each count, to be served concurrently. At the close of the hearing, the district court asked the parties , pursuant
to United States v. Jones , 899 F.2d 1097 , 11 02

– 03 (11th Cir. 1990), overruled on other grounds by United States v. Morrill , 984 F.2d 1136 (11th Cir. 1993) (en banc), if they had “any objections that need [ed] to be amplified further on the record[.]” The parties responded that they did not. This ap peal followed.
II Ms. Hepburn argues, for the first time on appeal, that she did not knowingly and voluntarily enter the plea agreement because she felt coerced into pleading guilty and believed that going to trial was not an option. We are not persuaded. Generally, we review the voluntariness of a guilty plea de novo

. See United States v. Bushert , 997 F.2d 1343, 1352 (11th Cir. 1993). But where , as here, a defendant raises a Rule 11 violation for the first time on appeal, we revi ew only for plain error. See United States v. Moriarty , 429 F.3d 1012, 1019 (11th Cir. 2005). To establish plain error, a defendant must show that there is (1) an error, (2) that is plain, and (3) that affects substantial rights. See United States v. Ol ano , 507 U.S. 725, 732 (1993). If those requirements are met, we may exercise discretion and

Case: 18-15208 Date Filed: 01/07/2020 Page: 6 of 117 correct the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id . (citations and internal quotation marks o mitted). To satisfy due process, a guilty plea must be entered knowingly and voluntarily

. See Moriarty , 429 F.3d at 1019. A court accepting a guilty plea must comply with Rule 11 and ensure that the defendant “(1) enters [her] guilty plea free from coercion, (2) understands the nature of the charges, and (3) understands the consequences of [her] plea.” I d

. “There is a strong presumption that the statements made during the [plea] colloquy are true.” United S tates v. Medlock , 12 F.3d 185, 187 (11 th Cir. 1994). Here, the district court complied with Rule 11, and confirmed that no one made any promises or used threats, force, pressure, or intimidation to induce Ms. Hepburn into making the plea. It further co nfirmed that Ms. Hepburn carefully reviewed the plea agreement and factual proffer with her attorney and understood the nature of the charges and conse quences of her plea

. Indeed, the district court explained Ms. Hepburn’s rights at length

— including her right to a trial by jury, to be represented by counsel at trial, to present evidence, to confront the g overnment’s witnesses, and to subpoena witnesses

— ensuring that she understood each constitutional right she was waiving. In light of this record, Ms. Hepburn’s conclusory assertion s on appeal that she “felt coerced” and believed “going to trial

Case: 18-15208 Date Filed: 01/07/2020 Page: 7 of 118 was not an option” are unconvincing. T he district court did not plainly err in accepting Ms. Hepburn’s plea.
III Ms. Hepburn next argues that the district court erred in sentencing her based on the drug quantity attributed to her in the PSI. Specifically, she contends that she should not h ave been held accountable for the total amount of fraudulent prescriptions filled by the Jares Pharmacy, because she was not aware of or involved in obtaining all the prescriptions. We disagree. We note that Ms. Hepburn does not challenge the accuracy of the total drug quantity set out in the PSI, or that all prescriptions issued in the name of Dr. Diaz by Jares Pharmacy were fraudulent. Instead, she asserts that she should not be held accountable for the full drug quantity because she and Mr. Hepburn wo rked independently.
We generally review a district court’s determination of the drug quantity attributable to a defendant for clear error. See United States v. Azmat , 805 F.3d 1018, 1046 (11th Cir. 2015)

. But when a defendant fails to raise an objection to the calculation of his sentence before the district court, we review for plain error. See United States v. Dixon , 901 F.3d 1322, 1347 (11th Cir. 2018). The g overnment submits that we should review for plain error because Ms. Hepburn declined to reassert or reargue her objection to the drug quantity during the
Jones inquiry after the district court’s pronouncement of her sentence. We have

Case: 18-15208 Date Filed: 01/07/2020 Page: 8 of 119 stated, however, that Jones is satisfied so long as the district court clearly understood the party’s posi tion and specifically reject ed it

. See United States v. Weir , 51 F.3d 1031, 1033 (11th Cir. 1995) (“ Jones provides for post

- sentence objections because new issues may arise between the pre

- sentence report and the imposition of sentence. If the relevant objection is raised after the presentation of the report, however, but before the actual imposition of the s entence, Jones is satisfied.”). The record reflects that the district court understood and addressed Ms. Hepburn’s objection. Thus, we review for clear err or . There is no clear err or here. “[W]hen a district court sentences a member of a ‘jointly unde rtaken criminal activity,’ it may consider the conduct of ‘others that was . . . in furtherance of the jointly undertaken criminal activity’ and ‘reasonably foreseeable in connection with that criminal activity.’” Dixon , 901 F.3d at 1349 (quoting U.S.S.G. § 1B1.3 cmt. n.3)

. T he district court determined that the total amount of fraudulent prescriptions written by Dr. Diaz w as foreseeable to Ms. Hepburn, because she and Mr. Hepburn “were basically in this together.” This finding was based on the undispute d testimony of Agent Hatton at the sentencing hearing, the paragraphs of the PSI setting forth the facts of the underlying conspiracy, to which Ms. Hepburn did not object, and the factual proffer that accompanied Ms. Hepburn’s plea agreement. See United S tates v. Polar , 369 F.3d 1248, 1255 (11 th Cir. 2004) (“The district court’s

Case: 18-15208 Date Filed: 01/07/2020 Page: 9 of 1110 factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the PSI, or evidence presented during the sentencing hearing.”)

. T h e evidence established that Ms. Hepburn was a leader in the conspiracy, that the conspiracy lasted for over two years, and that collectively the Hepburns filled about 10 to 11 prescriptions per week for 140 or 150 oxycodone or hydr omorphone tablets. Even if Ms. and Mr. Hepburn took turns picking up the prescriptions, the evidence reflects that they were in it together from the outset , and thus the prescriptions that Mr. Hepburn obtained were reasonably foreseeable to Ms. Hepburn

. See Dixon , 901 F.3d at 1349 (determining that the district court did not clearly err in holding the “leader in a broad drug trafficking

- conspiracy” responsible for the drug quantity sold by his co

- conspirators). The district court therefore did not clearl y err in sentencing Ms. Hepburn based on the total drug quantity involved in the conspiracy. IV Finally, Ms. Hepburn purports to adopt an argument that Mr. Hepburn raised in his appeal

— that the district court erred in applying a two

- level sentence enhancement, under U.S.S.G. § 2D1.1(b)(12) , for maintaining a property for the purpose of manufacturing or distributing controlled substance s . See United States

v. Hepburn , 776 F. App’x 649 (11 th Cir. 2019). This issue was not properly raised

.

Case: 18-15208 Date Filed: 01/07/2020 Page: 10 of 1111 Pursuant to Federal Rule of Appellate Procedure 28(i), “[i]n a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of anot her’s brief.” Fed. R. App. P. 28(i). But Ms. and Mr. Hepburn are no co

appellants, nor were their appeals consolidated. Rule 28(i) “does not permit such adoption by reference between cases[.]” United States v. Bichsel , 156 F.3d 1148, 1150 n.1 (11 th Cir . 1998)

. Though the Hepburns were charged in the same superseding indictment and entered their pleas at the same plea colloquy, they were not sentenced together. It is not clear how Mr. Hepburn’s argument raised in his appeal of a separate sentencing pro ceeding would relate to the instant appeal. Although Ms. Hepburn asserted in her i nitial b rief that she would file a separate motion to adopt this issue, no motion was ever filed. Accordingly, we do not consider whether the district court properly imposed this sentence enhancement

. 2
V For the foregoing reasons, we affirm Ms. Hepburn’s convic tions and sentence. AFFIRMED.

2 We further note that Mr. Hepburn’s argument in his appeal that the district court erred in applying a two

- level enhancement to his sentence for maintaining premises for the purpose of manufacturing or distributing controlled substances has since been rejected , and his sentence was affirmed

. See Hepburn , 776 F. App’x at 650. So, even if Ms. Hepburn properly adopted this argument, it alternatively fails on the merits.

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