USA v. Dean O. Barham

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15088
Non-Argument Calendar
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D.C. Docket No. 0:13-cr-60181-RNS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEAN O. BARHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 3, 2016)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Dean Barham appeals his convictions for nine counts of wire fraud, 18
U.S.C. § 1343, and one count of conspiring to commit wire fraud, id. § 1349, and
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his sentence of 78 months of imprisonment. Barham argues, for the first time, that
the district court erred by allowing two sign language interpreters to enter the juror
room to assist a hearing-impaired juror during deliberations and by failing to ask
Barham if he had reviewed the addendum to his presentence investigation report.
Barham also challenges the assessment of criminal history points for two
misdemeanor convictions for possessing marijuana. We affirm.
The district court did not plainly err by permitting interpreters to aid a
hearing-impaired juror during deliberations. To obtain relief, Barham must prove
that an error occurred that is plain and that affects his substantial rights. See United
States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). Barham fails to
identify any evidence of “any invasion of the province of the jury . . . [or] any
impropriety or suggestion [by the interpreters] as to how the jury should agree or
disagree or come to a resolution on any of the matters presented to them for their
consideration.” See United States v. Harrell, 788 F.2d 1524, 1528 (11th Cir. 1986)
(concluding that defendant was not prejudiced when an expert witness for the
government, under instruction from the trial court, entered the jury room during
deliberations and explained to jurors how to use audio equipment). Barham
speculates that the interpreters tainted the jury’s deliberations, but the interpreters
took an oath to refrain from participating in the deliberations and, after returning
the verdicts, each juror confirmed that the interpreters only translated for the juror.
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“For a plain error to have occurred, the error must be one that is obvious and is
clear under current law,” United States v. Carruth, 528 F.3d 845, 846 n.1 (11th Cir.
2008), and Barham fails to identify any precedent that prohibits interpreters from
translating for a hearing-impaired juror during deliberations.
The district court did not err, much less plainly err, in its duty to “verify that
[Barham] and [his] attorney ha[d] read and discussed the presentence report and
any addendum to the report,” Fed. R. Crim. P. 32(i)(1)(A). See United States v.
Aleman, 832 F.2d 142, 144 (11th Cir. 1987). The district court asked defense
counsel if he had received and reviewed the presentence report and its addendum
and counsel responded, “We have, Your Honor.” The district court then asked
Barham, “have [you] gone over the report with your attorney,” and he responded,
“I have, Your Honor.”
The district court did not err by adding two points to Barham’s criminal
history score for his prior convictions for possessing marijuana. The Sentencing
Guidelines state that a defendant receives one point for each prior sentence, United
States Sentencing Guidelines Manual § 4A1.1(c) (Nov. 2013), that was “previously
imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo
contendere, for conduct not part of the instant offense,” id. § 4A1.2(a)(1). Barham
challenges the assessment of one point for a misdemeanor marijuana offense to
which he pleaded guilty without the assistance of counsel, but the commentary to
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section 4A1.2 states that one point should be assessed for “uncounseled
misdemeanor sentences where imprisonment was not imposed,” id. § 4A1.2, cmt.
background. See Nichols v. United States, 511 U.S. 738, 748–49, 114 S. Ct. 1921,
1928 (1994); United States v. Baker, 116 F.3d 870, 872 (11th Cir. 1997). Barham
also contests the finding that he was convicted of a second misdemeanor offense of
possessing marijuana, but the district court did not clearly err in finding that the
government proved the prior conviction by a preponderance of the evidence. See
United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). Under Florida law,
adjudication may be withheld only when there has been a finding of guilty or a
plea of guilty or nolo contendere, Fla. Stat. 948.01(1), and the government
introduced a certified copy of the docket sheet from a Florida court establishing
that it withheld adjudication on Barham’s marijuana charge and ordered him to pay
a fine and court costs instead of placing him on probation, see Fla. Stat. 948.01(2).
We AFFIRM Barham’s convictions and sentence.
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