[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
JAN 07, 2011
No. 10-11728 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:09-cr-00416-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES BERNARD JONES, JR.,
a.k.a. Eric Bernard Lloyd,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 7, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
James Bernard Jones, Jr., appeals his 160-month sentence for distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He raises three
claims on appeal. First, he argues that the district court plainly erred in finding
that his Florida conviction for battery on a law-enforcement officer (“BOLEO”)
was a crime of violence for purposes of career-offender classification. Second, he
argues that the district court plainly erred in calculating his base offense level on
the basis of 89 grams of cocaine. Finally, he argues that his sentence was
substantively unreasonable. For the reasons set forth below, we affirm.
I.
In July 2009, a confidential source (“CS”) for the Drug Enforcement
Administration (“DEA”) met with his handler about purchasing crack cocaine
from Jones. The CS subsequently arranged the transaction. When the CS and
Jones met, Jones attempted to sell him powder cocaine, but the CS insisted on
crack cocaine. Jones said that he would cook the powder into crack, but it would
take about an hour. Later that afternoon, Jones provided 21.5 grams of crack
cocaine, which the CS purchased from him. At two subsequent meetings, the CS
purchased from Jones 19.2 grams and 21.5 grams of crack cocaine, respectively.
The CS arranged a fourth transaction with Jones, asking him to deliver two
ounces of crack cocaine. When Jones arrived, agents moved in to arrest him, and
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Jones fled. The agents chased him for several blocks at a high rate of speed. After
a brief chase, Jones’s vehicle struck the marked unit and came to a stop. When
Jones exited his vehicle and fled on foot, the agents apprehended him. A search of
his vehicle and person yielded a total of 23.8 grams of crack cocaine and 3 grams
of powder cocaine.
Jones was charged with three counts of distribution of five grams or more of
cocaine base (Counts 1-3) and one count of possession with intent to distribute
five grams or more of cocaine base (Count 4), all in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). He ultimately pled guilty to a lesser included offense of
Count 1, distribution of an unspecified quantity of cocaine base in violation of
§ 841(a)(1) and (b)(1)(C), and the other three counts were dismissed.
The presentencing investigation report (“PSI”) assigned a base offense level
of 30, based on 86 grams of cocaine base and 3 grams of powder cocaine, and
added a 2-level enhancement for reckless endangerment during flight, for an
adjusted offense level of 32. Jones’s prior state convictions for BOLEO and
strong-arm robbery qualified him for career-offender status, which also resulted in
an adjusted offense level of 32. Three levels were deducted for acceptance of
responsibility, yielding a total offense level of 29.
At the sentencing hearing, the district court found that Jones had only
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manufactured crack cocaine for the CS after the CS had refused to purchase the
powder cocaine and insisted on crack. Furthermore, Jones went into the next three
transactions knowing that the CS would insist on crack cocaine rather than powder
cocaine. The court concluded that it was “obvious” that the CS had insisted on
crack cocaine because his DEA handlers had sent him to make the purchase, and
crack cocaine results in more severe penalties than powder cocaine. Accordingly,
the court recalculated the drug-quantity guidelines as if Jones had possessed 89
grams of powder cocaine. The change reduced his base offense level from 30 to
16, but because of his career-offender status, his total offense level remained 29.
Jones argued that a sentence at the low end of his guideline range would be
reasonable. He introduced character testimony about his financial assistance to
people in his community, the fact that he ended his crack-cocaine addiction in
1997, and his efforts to help others end their own drug addictions. The court
found that the witnesses were sincere, and it expressed its gratitude that Jones had
been able to overcome his addiction, but it noted that Jones’s criminal history
included 16 felonies and many misdemeanors, and none of his previous arrests or
terms of imprisonment had served to deter him from his criminal activity. It
concluded that a 160-month sentence would afford just punishment and serve as
an adequate deterrent. Jones objected to the reasonableness of the sentence, but
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did not object to his career-offender classification or the calculation of the drug
quantity.
II.
A district court must begin the sentencing process by correctly calculating
the applicable guideline range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct.
586, 596, 169 L.Ed.2d 445 (2007). Likewise, we begin our review of a sentence
for reasonableness by ensuring that the district court did not commit any
significant procedural error, such as improperly calculating the guideline range.
Id. at 51, 128 S.Ct. at 597. Where, as here, the defendant fails to object in the
district court to a purported procedural error, we review for plain error. See
United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Thus, Jones must
show (1) an error that (2) is plain, (3) affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508
(1993). At the sentencing hearing, the government must prove by a preponderance
of the evidence any fact to be considered by the district court, United States v.
Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), including the applicability of any
guideline enhancements, United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.
2006).
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The career-offender guidelines define a “crime of violence” as a felony
offense that
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). Here, Jones’s career-offender designation turns on whether
the BOLEO offense satisfies the physical-force prong of the crime-of-violence
definition.
When determining whether a prior offense qualifies as a crime of violence,
“the practical difficulties of holding mini-trials . . . counsel against looking beyond
the fact of conviction,” so a district court must take a very limited approach to
“looking behind” the fact of conviction. United States v. Spell, 44 F.3d 936, 939
(11th Cir. 1995). Concerns of constitutionality “counsel[] us to limit the scope of
judicial factfinding on the disputed generic character of a prior plea [or] the
generic implication of a jury’s verdict.” Shepard v. United States, 544 U.S. 13,
25-26, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005). Therefore, analysis of a
state guilty plea is limited to the statutory definition, the terms of the charging
document, the terms of a written plea agreement or transcript of plea colloquy in
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which the defendant confirmed the factual basis for the plea, or explicit factual
findings by the judge to which the defendant assented. Id. at 16, 26, 125 S.Ct. at
1257, 1263. However, if the PSI prepared for the district court includes a
description of the facts underlying the state-court offense, and the defendant does
not challenge that description, the district court may consider it, as well. See
United States v. Wade, 458 F.3d 1273, 1275, 1278 (11th Cir. 2006) (noting
defendant’s failure to object to PSI’s description based on unidentified “court
documents”).
An individual commits the Florida offense of battery when he (1) “[a]ctually
and intentionally touches or strikes another person against the will of the other,” or
(2) “[i]ntentionally causes bodily harm to another person.” Fla. Stat.
§ 784.03(1)(a). This offense is ordinarily a first-degree misdemeanor, id.
§ 784.03(1)(b), but is elevated to a third-degree felony if it is committed on a law-
enforcement officer, id. § 784.07(2)(b). A Florida BOLEO offense cannot satisfy
the physical-force definition of the Armed Career Criminal Act (“ACCA”) merely
by satisfying the common-law definition of force, which encompasses “even the
slightest offensive touching.” Johnson v. United States, 559 U.S. __, __, 130 S.Ct.
1265, 1270, 176 L.Ed.2d 1 (2010). Rather, in the context of the statutory
definition of “violent felony,” the phrase “physical force” means “force capable of
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causing physical pain or injury to another person.” See id. at __, 130 S.Ct. at
1271. The word “violent” connotes “a substantial degree of force.” Id. Similarly,
“the fact of a conviction for felony battery on a law enforcement officer in Florida,
standing alone, no longer satisfies the ‘crime of violence’ enhancement criteria as
defined under the ‘physical force’ subdivision of [§] 4B1.2(a)(1) of the
[S]entencing [G]uidelines.” United States v. Williams, 609 F.3d 1168, 1169-70
(11th Cir. 2010).
Here, the record does not contain the charging document for Jones’s
BOLEO offense, a plea agreement, a transcript of the plea colloquy, or any explicit
factual findings by the state trial judge. The only information available about the
offense is the statement in the PSI that, “[a]s Officer Fernando approached, Jones
pushed the officer to the ground by using both hands.” Yet because Jones did not
object to this description, the district court could properly consider it to determine
which statutory phrase was the basis for his conviction. See Wade, 458 F.3d at
1278. Thus, the district court did not plainly err in finding that Jones was
convicted of intentionally striking a law enforcement officer and that a conviction
under that portion of the statute necessarily involves the use of substantial physical
force capable of causing physical pain or injury. See Johnson, 559 U.S. at __, 130
S.Ct. at 1270-71. Accordingly, Jones’s career-offender classification was not
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plainly erroneous. See Massey, 443 F.3d at 818.
III.
The base offense level is to be determined on the basis of all relevant
conduct, including all of the defendant’s acts or omissions “that were part of the
same course of conduct or common scheme or plan as the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1)(A), (a)(2). “Application of this provision does not require
the defendant . . . to have been convicted of multiple counts.” Id. § 1B1.3,
comment. (n.3). Thus, if the defendant engages in multiple drug sales as part of
the same course of conduct or common scheme or plan, his base offense level
should be based on the total quantity from all of the sales, even if he is only
convicted of a single count charging only one of the sales. Id.
Here, Jones completed three sales of cocaine base to the CS and was
arrested on his way to conduct a fourth sale. There is no indication in the record
that these four incidents were unconnected. The district court did not plainly err in
finding that the sales were part of the same course of conduct and, thus, that Jones
was accountable for all 89 grams of cocaine. See U.S.S.G. § 1B1.3, comment.
(n.3); Massey, 443 F.3d at 818. Furthermore, as Jones was properly sentenced as a
career offender, his final offense level and sentencing range were not affected by
the drug-quantity determination. See Olano, 507 U.S. at 732, 113 S.Ct. at 1776
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(requiring the defendant to show that his substantial rights have been affected).
Accordingly, Jones has not established plain error as to this issue.
IV.
We review the substantive reasonableness of a sentence under an abuse-of-
discretion standard, United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)
(en banc), taking into account the totality of the facts and circumstances, Gall, 552
U.S. at 51, 128 S.Ct. at 597. We will reverse a sentence under the abuse-of-
discretion standard only if the district court has made a clear error of judgment.
Id. at 1189. We “ordinarily . . . would expect a sentence within the Guidelines
range to be reasonable.” United States v. Talley, 431 F.3d 784, 787-88 (11th Cir.
2005). The appellant bears the burden of establishing that the sentence is
unreasonable. Id. at 788.
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), the district court must first “consult the Guidelines and correctly
calculate the range provided by the Guidelines,” and then consider the factors in
18 U.S.C. § 3553(a) and determine a reasonable sentence. Talley, 431 F.3d at 786.
Those factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for
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the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or
medical care; (6) the kinds of sentences available; (7) the sentencing guideline
range; (8) pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwarranted sentencing disparities; and (10) the need to provide
restitution to the victims. Id. (discussing § 3553(a)). The sentence must be no
greater than necessary to punish, deter, protect the public, and provide the training
and care outlined in the statute. Id. § 3553(a). The district court does not abuse its
discretion when it merely attaches “great weight” to a single, permissible factor or
set of factors. Gall, 552 U.S. at 56-59, 128 S.Ct. at 600-02.
Here, the district court stated that it had considered the facts in the PSI, the
defense’s character witnesses, and the § 3553(a) factors. It clearly considered the
circumstances surrounding Jones’s offense, particularly the alleged sentencing-
factor manipulation that led to Jones’s sale of crack cocaine rather than powder,
and it ordered the recalculation of the base offense level in order to address that
concern. It noted the character witnesses’ sincere testimony to Jones’s helpfulness
in his community, and it expressed its gratitude that Jones had overcome his drug
addiction. It then discussed Jones’s extensive criminal history and the lack of
deterrent effect of his previous periods of imprisonment, and it determined that a
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sentence of 160 months, in the middle of the guideline range, would afford just
punishment and adequate deterrence. The court’s decision was not an abuse of
discretion. Irey, 612 F.3d at 1188-89.
For the foregoing reasons, we affirm Jones’s sentence.
AFFIRMED.
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