United States v. Emmanuel Jones , 386 F. App'x 869 ( 2010 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 09-16329                   JULY 09, 2010
    Non-Argument Calendar               JOHN LEY
    ________________________                CLERK
    D. C. Docket No. 08-00315-CR-4
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    EMANUEL JONES,
    a.k.a. E,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    _________________________
    (July 9, 2010)
    Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Emmanuel Jones appeals from his 78-month total sentence imposed for two
    convictions for the use of a communication facility in furtherance of a conspiracy to
    possess with intent to distribute, and to distribute, controlled substances, in violation
    of 21 U.S.C. § 843(b). Jones argues that the district court abused its discretion by
    failing to account for his substantial assistance to the government, as a factor in its
    18 U.S.C. § 3553(a) sentencing analysis. After careful review, we affirm.
    We review the sentence a district court imposes for “reasonableness,” which
    “merely asks whether the trial court abused its discretion.” United States v. Pugh,
    
    515 F.3d 1179
    , 1189 (11th Cir. 2008) (quoting Rita v. United States, 
    551 U.S. 338
    ,
    351 (2007)).
    In reviewing sentences for reasonableness, we perform two steps. 
    Id. at 1190.
    First, we must “‘ensure that the district court committed no significant procedural
    error, such as failing to calculate (or improperly calculating) the Guidelines range,
    treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
    selecting a sentence based on clearly erroneous facts, or failing to adequately explain
    the chosen sentence -- including an explanation for any deviation from the Guidelines
    range.’” 
    Id. (quoting Gall
    v. United States, 
    552 U.S. 38
    , 51 (2007)).1 The district
    1
    The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
    and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness
    of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the
    need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5)
    the need to provide the defendant with educational or vocational training or medical care; (6) the
    kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements
    of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the
    need to provide restitution to victims. 18 U.S.C. § 3553(a).
    2
    court need not discuss each § 3553(a) factor. United States v. Talley, 
    431 F.3d 784
    ,
    786 (11th Cir. 2005). Rather, “[t]he sentencing judge should set forth enough to
    satisfy the appellate court that he has considered the parties’ arguments and has a
    reasoned basis for exercising his own legal decisionmaking authority.” 
    Rita, 551 U.S. at 356
    .
    If we conclude that the district court did not procedurally err, we must consider
    the “‘substantive reasonableness of the sentence imposed under an abuse-of-
    discretion standard,’” based on the “‘totality of the circumstances.’” 
    Pugh, 515 F.3d at 1190
    (quoting 
    Gall, 552 U.S. at 51
    ). This review is “deferential,” requiring us to
    determine “whether the sentence imposed by the district court fails to achieve the
    purposes of sentencing as stated in section 3553(a).” 
    Talley, 431 F.3d at 788
    . There
    is a “range of reasonable sentences from which the district court may choose,” and
    a sentence within the guideline range is ordinarily expected to be reasonable. 
    Id. Moreover, when
    considering whether a defendant’s sentence is reasonable, we have
    compared the sentence actually imposed to the statutory maximum. See, e.g., United
    States v. Valnor, 
    451 F.3d 744
    , 751-52 (11th Cir. 2006) (upholding sentence as
    reasonable in part because it was “appreciably below the length of the statutory
    maximum”).
    3
    “The weight to be accorded any given § 3553(a) factor is a matter committed
    to the sound discretion of the district court, and we will not substitute our judgment
    in weighing the relevant factors.” United States v. Amedeo, 
    487 F.3d 823
    , 832 (11th
    Cir. 2007) (internal quotation and brackets omitted).                 We will remand for
    resentencing only if we are “left with the definite and firm conviction that the district
    court committed a clear error of judgment in weighing the § 3553(a) factors by
    arriving at a sentence that lies outside the range of reasonable sentences dictated by
    the facts of the case.” 
    Pugh, 515 F.3d at 1191
    (citation and internal quotation
    omitted). The burden is on the defendant to show that the sentence was unreasonable
    in light of the record and the § 3553(a) factors. 
    Talley, 431 F.3d at 788
    .
    As applied here, Jones has not demonstrated that the district court committed
    any procedural error or that his sentence is procedurally unreasonable. Jones
    conceded at sentencing that his applicable guidelines range was correctly calculated,
    and does not allege otherwise on appeal. Jones also concedes on appeal that, because
    the government did not file a § 5K1.1 motion, the district court lacked the authority
    to depart downward based on his substantial assistance.2
    2
    “Upon motion of the government stating that the defendant has provided substantial
    assistance in the investigation or prosecution of another person who has committed an offense,
    the court may depart from the guidelines.” U.S.S.G. § 5K1.1. Section 5K1.1 thus requires a
    substantial assistance motion by the government before the court can reduce a sentence under
    that guideline. Id.; see United States v. Howard, 
    902 F.2d 894
    , 897 (11th Cir. 1990).
    4
    In addition, at the sentencing hearing, the district court allowed both parties to
    present arguments as to what they believed the appropriate sentence should be. The
    court considered Jones’ arguments for a “downward departure” based on his
    cooperation with the government, as well as his request for concurrent, rather than
    consecutive, sentences on the two telephone counts. Notably, the court heard Jones’
    argument that he cooperated with authorities from the very beginning of the case and
    agreed to “keep quiet” so as to prevent the investigation from being hampered; it also
    heard the government’s response that it sought to reward Jones up-front for his
    cooperation by allowing him to plead guilty to the telephone counts, instead of the
    conspiracy counts. The court responded to Jones’ request for a downward departure
    by pointing out that Jones “got a better deal” by this charge bargain, noting that,
    because Jones was allowed to plead to the telephone counts, as opposed to the
    conspiracy charges, he received the added benefit of serving only one year of
    supervised release, instead of five years. The court accepted the plea agreement
    because it “adequately reflect[ed] the seriousness of the actual offense behavior, and
    [did] not undermine the statutory purposes of sentencing,” and it considered Jones’
    individual characteristics.
    Moreover, the district court acknowledged that it considered all of the factors
    identified in § 3553(a) and found the 78-month total sentence to be sufficient, but not
    5
    greater than necessary, to comply with the statutory purposes of sentencing. 
    Talley, 431 F.3d at 786
    (“an acknowledgment by the district court that it has considered the
    defendant’s arguments and the factors in section 3553(a) is sufficient . . .”). Indeed,
    the district court correctly calculated the applicable guideline range, treated the
    guidelines as advisory, acknowledged that it considered the parties’ arguments, as
    well as the PSI, the plea agreement, and the § 3553(a) factors, and ultimately
    sentenced Jones at the bottom of the guidelines range. Jones has therefore failed to
    show that his sentence was procedurally unreasonable.
    Jones also has failed to demonstrate that his bottom-of-the-guidelines total
    sentence was substantively unreasonable. As for his claim that the “charge bargain”
    that he accepted was not a better deal than pleading guilty to the charges of
    conspiracy, Jones ignores the fact that, if he had pleaded guilty to the conspiracy
    charges, he could have faced a 20-year term of imprisonment as well as a five-year
    term of supervised release, and a mandatory minimum of 20 years’ imprisonment if
    the government had filed a notice under 21 U.S.C. § 851 based on Jones’ prior drug
    offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, 851; 18 U.S.C. § 3583(b)(1).
    In contrast, by pleading guilty to the telephone charges, Jones faced a lesser
    eight-year statutory maximum term of imprisonment and a one-year supervised
    release term. See 21 U.S.C. § 843(b), (d)(1); 18 U.S.C. § 3583(b)(3). Further, Jones’
    6
    bottom-of-the-guidelines 78-month total sentence also was below the statutory
    maximum of eight years’ imprisonment. See 21 U.S.C. § 843(d) (providing for a
    maximum term of imprisonment of four years, as to each count); 
    Valnor, 451 F.3d at 751-52
    ; 
    Talley, 431 F.3d at 788
    . Accordingly, Jones has not met his burden, in light
    of the record and the pertinent § 3553(a) factors, to show that the district court abused
    its discretion in sentencing him.
    AFFIRMED.
    7