[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13606

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JONATHAN BLASH, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:19-cr-00051-TES-CHW-1

____________________

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2 Opinion of the Court 20-13606

Before JILL PRYOR, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM:

Jonathan Blash appeals his conviction and 27-months sentence for being a felon in possession of a firearm, in violation of 18 

U.S.C. §§ 922(g)(1) and 924(a)(2), arguing that the district court 

erred by not dismissing his case for violating the Speedy Trial Act, 

see 18 U.S.C. § 3161(c)(1), and by applying the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). For the reasons stated below, we affirm.

I. 

We review de novo the denial of a defendant’s Speedy Trial 

Act motion. United States v. Hughes, 840 F.3d 1368, 1378 (11th 

Cir. 2016).

The Speedy Trial Act provides that a criminal defendant 

who pleads not guilty must be tried within seventy days of either 

the filing date of the indictment or his initial appearance in court, 

“whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Therefore, 

“[w]hen a defendant is indicted prior to his arrest, the seventy-day 

pretrial period runs from the date of his arraignment . . . . When 

the defendant is arrested prior to indictment, . . . the seventy-day 

pretrial period runs from the date of his indictment.” United States 

v. Hernandez, 724 F.2d 904, 905 (11th Cir. 1984) (quoting United 

States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982)). “Where an 

indictment has previously issued, Congress clearly intended that 

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20-13606 Opinion of the Court 3

the Speedy Trial Act clock would not begin running until a defendant appeared before a judicial officer in the district where charges 

were pending.” See United States v. O’Bryant, 775 F.2d 1528, 1531 

& n.3 (11th Cir. 1985) (holding that, although a defendant was indicted in September 1982, the seventy-day window did not begin 

until he first appeared in the relevant court in March 1984). 

Here, the district court did not err by finding that there was 

no Speedy Trial Act violation because the seventy-day window began once Blash made his initial appearance, as the Speedy Trial 

Act’s plain text and our precedent make clear. Because Blash was 

indicted prior to his arrest, the seventy-day window in which to 

bring him to trial began after his arraignment, which was the same 

day he filed his motion to dismiss. We therefore affirm as to this 

issue.

II. 

Under the invited error doctrine, if a defendant “induces or 

invites the district court into making an error,” then we are precluded from reviewing that error on appeal. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (quoting United States v. 

Stone, 139 F.3d 822, 838 (11th Cir. 1998)). “[W]here a party invites 

the trial court to commit error, he cannot later cry foul on appeal.” 

Id. (quoting United States v. Harris, 443 F.3d 822, 823–24 (11th Cir. 

2006)). However, “ambiguous statements or representations” do 

not trigger the invited error doctrine. United States v. Hayes, 762 

F.3d 1300, 1310 n.6 (11th Cir. 2014).

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4 Opinion of the Court 20-13606

Arguments that were not raised in the district court are reviewed for plain error. United States v. Bradley, 644 F.3d 1213, 

1293 (11th Cir. 2011). “Plain error occurs ‘if (1) there was error, 

(2) that was plain, (3) that affected the defendant’s substantial 

rights, and (4) that seriously affected the fairness, integrity, or public reputation of judicial proceedings.’” United States v. Longoria, 

874 F.3d 1278, 1281 (11th Cir. 2017) (quoting United States v. 

Wright, 607 F.3d 708, 715 (11th Cir. 2010)). 

In challenges to sentencing decisions, we review a district 

court’s factual findings for clear error. United States v. Bishop, 

940 F.3d 1242, 1250 (11th Cir. 2019). To be clearly erroneous, a 

review of the entire record must leave us with the “definite and 

firm conviction” that a mistake has been made. United States v. 

McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003) (quoting United 

States v. Engelhard Corp., 126 F.3d 1302, 1305 (11th Cir. 1997)). 

Where there are two reasonable interpretations of the facts, “the 

factfinder’s choice between them cannot be clearly erroneous.” 

United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) 

(quoting United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 

2006)).

If the defendant objects to the factual basis of his sentence, 

the government must prove that fact by a preponderance of the 

evidence. United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th 

Cir. 2014). When making factual findings at sentencing, the court 

may look to “undisputed statements in the presentence report, or 

evidence presented at the sentencing hearing.” United States v. 

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20-13606 Opinion of the Court 5

Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). The failure to object 

with specificity and clarity to statements in the presentence investigation report (“PSI”) “renders those statements undisputed and 

permits the sentencing court to rely upon them without error even 

if there is an absence of supporting evidence.” Aguilar-Ibarra, 740 

F.3d at 592 (quoting United States v. Beckles, 565 F.3d 832, 844 

(11th Cir. 2009)). 

A four-level enhancement is applied to the U.S. Sentencing 

Guidelines’ base offense level if the defendant “used or possessed 

any firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). This enhancement automatically 

applies where the connected felony offense is for drug trafficking 

and “the firearm is found in close proximity” to drugs or drug paraphernalia. See Bishop, 940 F.3d at 1250 (emphasis in original) 

(quoting U.S.S.G. § 2K2.1 cmt. n.14(B)). While the phrase “drug 

trafficking offense” is not defined by section 2K2.1, we have

adopted the definition of that phrase in section 2L1.2 for the purposes of applying section 2K2.1. See United States v. Martinez, 964 

F.3d 1329, 1334 & n.2 (11th Cir. 2020). Under that definition, a drug 

trafficking offense is “an offense under federal, state, or local law 

that prohibits the . . . possession of a controlled substance (or a 

counterfeit substance) with intent to . . . distribute.” U.S.S.G. § 

2L1.2 cmt. n.2. The phrase “another felony offense” is defined to 

include any federal offense punishable by more than one year imprisonment, regardless of whether a criminal charge is brought or 

a conviction is obtained. Id. § 2K2.1 cmt. n.14(C). 

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6 Opinion of the Court 20-13606

Possession of less than five kilograms of marijuana with intent to distribute is punishable under federal law by up to five years’ 

imprisonment. 21 U.S.C. § 841(a), (b)(1)(D). Intent to distribute 

can be shown by the amount of drugs found and the presence of 

other items commonly used for distribution, such as scales. United 

States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989); see also United 

States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008) (holding that 

the presence of plastic bags also indicates the intent to distribute).

Here, Blash invited any error the district court may have 

made by implicitly finding that the substance seized from his apartment was marijuana because, at sentencing, he unambiguously 

characterized the substance as marijuana and argued that it was for 

personal use. But even if Blash did not invite this alleged error, 

plain error review applies because he raises this argument for the 

first time on appeal. We conclude that the district court did not 

plainly err by implicitly finding that the substance was marijuana

because Blash neither disputed the statement in the PSI stating that 

the police confirmed the substance seized in his apartment was marijuana nor did he dispute the lab report confirming that it was marijuana.

Additionally, the district court did not clearly err by finding 

that Blash possessed marijuana with intent to distribute because 

this was a reasonable interpretation of the facts. A scale, baggies, 

and a credit card machine were found near a large amount of marijuana, specifically 64.9 grams. The government also presented 

evidence that Blash sold marijuana to a confidential informant. 

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20-13606 Opinion of the Court 7

Finally, the district court did not err by applying the fourlevel enhancement under section 2K2.1(b)(6)(B) because this provision automatically applies where, as here, the connected felony 

offense was drug trafficking and the firearm was found in close 

proximity to drugs. Possession of marijuana with intent to distribute is a federal crime and, because marijuana is a controlled substance under federal law, it is also a drug trafficking offense under 

the Sentencing Guidelines.

III.

Accordingly, for the reasons discussed, we affirm Blash’s 

conviction and sentence.

AFFIRMED.

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