[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16431 ELEVENTH CIRCUIT
MARCH 2, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00315-CR-26-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARRIEM YUSEF BUTLER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 2, 2011)
ON PETITION FOR REHEARING
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
The prior panel opinion, reported at – Fed. App’x – , is withdrawn and the
following opinion is substituted in its place. Karriem Yusef Butler appeals the
consecutive sentences imposed following his conviction on two counts of using a
communication facility to aid a conspiracy to possess with intent to distribute, and
to distribute, controlled substances, in violation of 21 U.S.C. § 843(b).
I. Background
Butler and numerous others were charged in connection with a large-scale
drug-distribution scheme. Butler was charged with conspiracy to possess with
intent to distribute drugs, in violation of 21 U.S.C. § 846 (Count 1), and three
counts of using a telephone to facilitate that conspiracy, in violation of § 843
(Counts 51 through 53). At the time of his arrest on the federal charges, Butler was
in state custody for drug offenses related to the federal charges.1
Butler pleaded guilty to two counts of using the telephone to facilitate the
conspiracy (Counts 51 and 52). Under the terms of his plea agreement, Butler
admitted that he used a telephone to facilitate the drug conspiracy. The plea
agreement explained that the statutory maximum sentence under § 843 was four
years’ imprisonment.
At the change-of-plea hearing, Butler admitted that he had received two
phone calls from co-conspirator Telly Petty asking him to get some cocaine and
1
Butler was convicted in state court of possession of lidocaine, a violation of the
Georgia Controlled Substance Act.
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materials to cut the drugs. Butler had agreed to supply the cocaine and deliver it to
Petty.
In determining the advisory sentencing range, the probation officer applied a
base offense level of 28 under U.S.S.G. § 2D1.1(c)(6),2 with a 3-level reduction for
acceptance of responsibility, for a total adjusted offense level of 25. As a career
offender, Butler’s criminal history category was VI, which yielded a guideline
range of 110 to 137 months’ imprisonment. But the consecutive statutory
maximum sentences decreased this range to 96 months.
Butler objected to the amount of drugs attributed to him, argued that the
offense level should have been 12 under § 4B1.1(b), and opposed consecutive
sentences. He also argued that he was a minor or minimal participant. The district
court rejected his arguments, adopted the presentence investigation report, and
sentenced Butler to 48 months’ imprisonment on Count 51 and a consecutive 44-
month term of imprisonment on Count 52. The court varied downward slightly
from the statutory maximum to avoid a sentencing disparity with one of Butler’s
codefendants. Butler now appeals.
Butler raises several arguments regarding the reasonableness of his
2
The base offense level did not include any of the lidocaine for which Butler had been
arrested on state charges.
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sentences. First, he argues that the district court committed constitutional Booker3
error when it enhanced his sentence based on facts not found be thy jury nor
admitted by him. Second, he argues that the district court procedurally erred by
(a) calculating his base offense level as 28 after the court made factual findings
about the specific drug quantity, (b) imposing consecutive sentences, and
(c) denying a reduction for being a minor or minimal participant under U.S.S.G.
§ 3B1.2. Third Butler argues that his sentence was substantively unreasonable.
We address each in turn.
II. Discussion
We review the reasonableness of a district court’s sentence under a
deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S.
38, 41 (2007).
A. Constitutional error
Under Booker, there are two types of error that a district court might commit
in sentencing a defendant: constitutional and statutory. United States v. Lee, 427
F.3d 881, 891 (11th Cir. 2005). A constitutional Booker error under the Sixth
Amendment “occurs when extra-verdict enhancements are used to reach a result
under [the Guidelines] that is binding on the sentencing judge.” Id. A statutory
3
United States v. Booker, 543 U.S. 200 (2005).
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Booker error “consists in sentencing a defendant under the Guidelines as if they
were mandatory and not advisory, even in the absence of a Sixth Amendment
violation.” Id.
When the defendant successfully preserves the issue, we review the Booker
claim under a harmless error standard. United States v. Mathenia, 409 F.3d 1289,
1291-92 (11th Cir. 2005). A constitutional Booker error is harmless if the
government can show, beyond a reasonable doubt, that the error did not contribute
to the defendant’s ultimate sentence. Id. A statutory error is harmless “if, viewing
the proceedings in their entirety, a court determines that the error did not affect the
[sentence], or had but very slight effect.” Id. (quotation marks omitted).
The district court in this case did not commit either a constitutional or
statutory Booker error. Although the court considered, as relevant conduct, the
amount of drugs involved in the underlying conspiracy, Butler’s sentence was
driven by the statutory maximum sentence and not the guideline range. Moreover,
the court expressly stated that the guideline were advisory. Thus, we conclude that
there is no merit to Butler’s claim of Booker error.
B. Procedural reasonableness
Butler’s sentence is otherwise procedurally unreasonable if the district court
failed to calculate (or improperly calculated) the guidelines range, treated the
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guidelines as mandatory, failed to consider the § 3553(a) factors, selected a
sentence based on clearly erroneous facts, or failed to adequately explain the
chosen sentence—including an explanation for any deviation from the guidelines
range. See id. at 51. We review a district court’s factual findings related to the
imposition of a sentence for clear error. See United States v. Villarreal, 613 F.3d
1344, 1357-58 (11th Cir. 2010) (quotation marks omitted). “A district court’s
factual finding is clearly erroneous when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. at 1358.
1. Drug quantity
The district court may consider all relevant conduct in calculating a
defendant’s offense level. United States v. Hamaker, 455 F.3d 1316, 1336 (11th
Cir. 2006). Relevant conduct includes conduct for which the defendant was
acquitted, United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), conduct
that is the basis for counts dismissed pursuant to a plea agreement, United States v.
Alston, 895 F.2d 1362,1371-72 (11th Cir. 1990), and uncharged criminal conduct
that occurred outside the statute-of-limitations period, United States v. Scroggins,
880 F.2d 1204, 1214 (11th Cir. 1989). The court may determine the sentence
based on judicial fact-finding of relevant conduct provided that the court’s findings
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are by a preponderance of the evidence and the court recognizes that the guidelines
are advisory. United States v. Dean, 487 F.3d 840, 854 (11th Cir. 2007).
Furthermore, “the district court may base sentencing determinations on reliable
hearsay.” United States v. Baker, 432 F.3d 1189, 1254 n.68 (11th Cir. 2005).
Credibility determinations are the province of the district court. Villarreal, 613
F.3d at 1358.
Here, the district court properly determined the drug quantity attributable to
Butler based on a preponderance of the evidence. Petty testified at sentencing that
Butler had assisted him with repackaging two kilograms of cocaine. Moreover,
although Butler pleaded guilty to only two counts of using the telephone to
facilitate a drug conspiracy, there was evidence to connect him with the
distribution of at least two kilograms of cocaine.
2. Consecutive sentences
Butler argues that the district court erroneously treated the guidelines as
mandatory when it imposed consecutive sentences under § 5G1.2(d). We disagree.
Section 5G1.2(d) provides,
If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence equal to the total
punishment. In all other respects, sentences on all counts shall run
concurrently, except to the extent otherwise required by law.
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U.S.S.G. § 5G1.2(d). The court properly determined the base offense level to be
28, which yielded an advisory guideline range of 110 to 137 months’
imprisonment. Because the statutory maximum under § 843 was 48 months’
imprisonment for each count, the guideline range became the statutory maximum
sentence. But the statutory maximum was significantly less than the calculated
advisory guidelines range. Therefore, the imposition of consecutive sentences was
consistent with the dictates of § 5G1.2(d) to produce a sentence equal to the total
punishment as determined by the guideline calculations. The district court did not
impose consecutive sentences because it believed them to be mandatory; rather, the
court did so because consecutive sentences were consistent with the terms of
§ 5G1.2.
3. Role reduction
A defendant may receive a two-level reduction in his offense level if he was
a minimal or minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A
defendant is a minimal participant if his is plainly among the least culpable of
those involved in the conduct of the group. U.S.S.G. § 3B1.2 comment. (n.4). A
defendant is a minor participant if he is less culpable than most other participants,
but his role could not be described as minimal. U.S.S.G. § 3B1.2 comment. (n.5).
The defendant has the burden of establishing his role in the offense by a
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preponderance of the evidence. United States v. De Varon, 175 F.3d 930, 939
(11th Cir. 1999) (en banc).
The determination whether to apply a role reduction “is heavily dependent
upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (n.3(c)). “Two
principles guide the district court’s consideration: (1) the court must compare the
defendant’s role in the offense with the relevant conduct attributed to him in
calculating his base offense level; and (2) the court may compare the defendant’s
conduct to that of other participants involved in the offense.” United States v.
Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant conduct
attributed to a defendant is the same as his actual conduct, “he cannot prove that he
is entitled to a minor-role adjustment simply by pointing to some broader scheme
for which he was not held accountable.” Id. Furthermore, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of [his] role in the offense, since it is possible that
none are minor or minimal participants.” De Varon, 175 F.3d at 944.
In this case, Butler’s relevant conduct matched his actual conduct; he was
held responsible for two kilograms of cocaine and not for any larger role in the
conspiracy. Butler has not shown that he was entitled to a role reduction.
B. Substantive reasonableness
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To be substantively reasonable, the sentence must be “sufficient, but not
greater than necessary to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2). These purposes include the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from the defendant’s future criminal conduct,
and provide the defendant with needed educational or vocational training or
medical care. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the
court must also consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7).
We will not vacate a sentence as unreasonable unless 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.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). The
party challenging the sentence has the burden of establishing unreasonableness in
light of the record and the § 3553(a) factors. United States v. Thomas, 446 F.3d
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1348, 1351 (11th Cir. 2006).
In this case, the district court stated that it had considered the advisory
guideline range, the parties’s arguments, and the sentencing factors in § 3553(a).
The court specifically noted that Butler’s conduct was similar to that of one of his
codefendants and that he should be sentenced accordingly. On these facts, we
cannot say that the district court imposed an unreasonable sentence.
For the foregoing reasons, we conclude Butler’s sentences were procedurally
and substantively reasonable.
AFFIRMED.
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