[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 15568 Non

- Argument Calendar

________________________ D.C. Docket No. 1:89

- cr
- 01008

- MP

- GRJ

- 1

UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus THEODORE DWAYNE WHITFIELD,
Defendant

- Appellant.

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

________________________ (June 4, 2015)
Before TJOFLAT , JORDAN and JILL PRYOR , Circuit Judge s. PER CURIAM:

Case: 14-15568 Date Filed: 06/04/2015 Page: 1 of 42 In 1989, Theodore Dwayne Whitfield pleaded guilty to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841 and 846. T he District Court sentenced him to a prison term of 327 months to be followed by a
five

- yea r term of supervised release. The latter term began on April 12, 2013, following his release from prison. On August 14, 2014, Whitfield was caught producing marijuana and possessing a controlled substance; two weeks later, his probation officer petitioned the District Court to revoke Whitfield’s supervised release for violating the mandatory conditions of the release

— that he refrain from violating federal or state
law. On December 4, 2014, the District Court held a hearing on the petition.
Whit field admitted the violation. 1 The following colloquy between the court,
defense counsel , and Whitfield then took place:
THE COURT: Let me find the guidelines.
DEFENSE COUNSEL : Your Honor, I don’t believe there are any guidelines based upon t he age of the conviction and the year in which it was imposed . I have had discussions with probation on this issue.
THE COURT: The report doesn’t show any, either, but your sentence could be revoked and you could be sentenced up to five years. Do you understand that, sir?
THE DEFENDANT: Yes, sir.

1 Whitfield pleaded no lo contender e , and the court accepted the plea because a state prosecution was pending against Whitfield.

Case: 14-15568 Date Filed: 06/04/2015 Page: 2 of 43 Doc. 209 , at 3. Defense counsel urged the court to impose a short sentence of
incarceration

— no more than three to six months. The court imposed a thirty

- six
month sentence of confinement, stating: “In imposing [ the ] sentence, I have considered the guidelines, policy statements, and other matters required by this
Court.” Id

. at 11. 2 The court then asked defense counsel whether the defendant had any objections to “any matters that have transpired here today or [any] motions and objections outstanding as to whic h I have not addressed myself.” Id. at 12. Counsel replied : “Just as to o ur request for self

- surrender.” Id. Whitfield appeals the sentence the District Court imposed , claiming the following procedural irregularities . He argues that the court erred by failing to calculate and consider the grade of his vi olation and resulti ng guideline sentence range before imposing sentenc e ; t hat the guideline sentence range , had it been calculated, would have called for a sentence of less than thirty

- six months; and that the court erred in failing to state a reason for the “upward variance .”
W hen, as here, the defendant has not presented to the sentencing court objections he raises on appeal, we review his objections for plain error. United States v. Vandergrift , 754 F.3d 1303, 1307 (11th Cir. 2014). Under plain error review, the defendant must show: error, that is plain, and that affects substantial rights. Id. We may then exercise our discretion to notice a forfeited error, but only

2 The court expressly declined to impose a term of supervised release. Case: 14-15568 Date Filed: 06/04/2015 Page: 3 of 44 if the error seriously affects the fairness, integrity, or publi c reputation of judicial proceedings. Id.
Procedural error can include errors such as failing to calculate, or improperly calculating, the guidelines sentence range; treat ing the guidelines as mandatory; failing to consider the sentencing objectives of 18 U.S.C. § 3553(a) ; selecting a
sentence b ased on clearly erroneous facts; or failing to adequately explain the
chosen sentence. Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169
L. Ed. 2d 445 (2007). The doctrine of invited error is impl icated when a party induces or invites the district court into making an error. United States v. Love , 449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam) . Where invited error exists, we are precluded from invoking the plain

- error rule. Id.
Invited error occurred here. Whitfield’s counsel informed the court that
there were no a pplicable sentencing guidelines and used the lack of guidelines to

reco mmend a short sentence. Hence, Whitfield cannot argue that the error he now

asserts requires ou r review.
AFFIRMED. Case: 14-15568 Date Filed: 06/04/2015 Page: 4 of 4