United States v. Willis

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 17, 2011
No. 09-15676
JOHN LEY
________________________
CLERK

D. C. Docket No. 06-00026-CR-BAE-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES WILLIS,
a.k.a. Monte,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 17, 2011)

Before TJOFLAT, WILSON and SEYMOUR,* Circuit Judges.

*
Honorable Stephanie K. Seymour, United States Circuit Judge for the Tenth Circuit,
sitting by designation.
TJOFLAT, Circuit Judge:

Charles Willis appeals substantive and procedural aspects of his 151-month

sentence. After initially receiving a much longer term of imprisonment, Willis

moved to vacate his sentence under 28 U.S.C. § 2255, raising six claims of

ineffective assistance of counsel. The district court found merit in one of those

claims—that counsel should have challenged the imposition of a career offender

enhancement—and ordered a resentencing hearing to sentence him free of that

enhancement. At the resentencing hearing, Willis attempted to challenge other

inputs into his sentence—the quantity of drugs attributable to him and a firearm

enhancement—that his § 2255 motion also alleged had been handled

incompetently by trial counsel. The district court refused to consider these

arguments and imposed the sentence challenged in this appeal. Because we find

no basis to disturb this ruling, or any of the other decisions Willis challenges, we

affirm.

I.

A.

Willis was indicted in October 2006 of conspiring to “possess with the

intent to distribute, and to distribute, 50 grams or more of cocaine base (crack) and

5 kilograms or more of cocaine hydrochloride (powder),” in violation of 21 U.S.C.

2
§§ 841(a)(1), 846, and 18 U.S.C. § 2. In September 2007, Willis pled guilty to the

lesser-included offense of conspiracy to distribute an unspecified quantity of both

identified drugs, and proceeded to sentencing.

The district court’s Probation Office prepared a pre-sentence investigation

report (“PSR”), as required by Federal Rule of Criminal Procedure 32. The PSR

determined a total offense level of 33, which included an estimated drug quantity

of 32 kilograms of cocaine hydrochloride, United States Sentencing Commission,

Guidelines Manual, § 2D1.1(c)(3), and a two-level enhancement for possessing a

firearm in connection with the offense, id. § 2D1.1(b)(1).1 The PSR also

determined that Willis’s prior felony convictions made him eligible for the career

offender enhancement under § 4B1.1, giving Willis a criminal history category of

VI. These inputs yielded a prison range of 235 to 240 months. Recognizing

Willis’s assistance in other prosecutions, the Government filed a motion for a

downward departure under § 5K1.1. The district court granted the motion and

sentenced Willis to 192 months’ imprisonment.

Willis appealed his sentence, contending, among other things, that the

district court erroneously applied the firearm enhancement. This court affirmed

1
These two inputs provided Willis with an adjusted offense level of 36. His total
offense level was reduced to 33 after a 3-level reduction for acceptance of responsibility. United
States Sentencing Commission, Guidelines Manual, § 3E1.1.

3
Willis’s sentence, finding that the district court did not err by applying the firearm

enhancement “because law enforcement found the firearm at issue in Willis’s

home along with substantial evidence of drug trafficking activity.” United States

v. Willis, 284 F. App’x 687, 689 (11th Cir. 2008).

B.

In December 2008, Willis filed a motion to vacate his sentence under 28

U.S.C. § 2255.2 The motion argued that Willis’s counsel had been ineffective for:

(1) failing to challenge the career offender enhancement; (2) failing to contest the

firearm enhancement; (3) failing to object to the drug amounts attributed to him in

the PSR; (4) ineffectively handling a motion to suppress evidence, including the

firearm; (5) failing to object to improper venue; and (6) advising him to accept the

plea agreement. The Government conceded that Willis was not eligible for the

career offender enhancement, but argued that the remaining claims were meritless.

Willis’s motion was referred to a magistrate judge, who issued a Report and

Recommendation in May 2009. The Report and Recommendation accepted the

Government’s concession and concluded that Willis “should be resentenced under

2
In June 2008, Willis filed a motion with the district court pursuant to 18 U.S.C.
§ 3582(c)(2), seeking to reduce his sentence on the ground that he was not eligible for the career
offender enhancement. In response, the Government conceded that the enhancement should not
have been applied to Willis, but argued that this error can only be corrected through a 28 U.S.C.
§ 2255 motion. The district court agreed with the Government and instructed Willis to re-file his
motion as a § 2255 motion, along with any other claim he had against his conviction or sentence.

4
the appropriate sentencing guideline provisions.” Willis’s remaining ineffective

assistance claims were rejected without an evidentiary hearing. On June 22, 2009,

the district court adopted the Report and Recommendation and ordered

resentencing. The relevant portion of the order reads:

Movant Charles Willis is entitled to be resentenced absent the
career offender enhancement applied at his initial sentencing.
Accordingly, the United States Probation Office is DIRECTED
to prepare a new presentence investigation report reflecting the
fact that Willis is not a career offender under the sentencing
guidelines. The Court will appoint new counsel to represent
movant at the resentencing hearing, and the Clerk is therefore
DIRECTED to prepare the appropriate appointment papers (CJA-
20) forthwith. The Court will schedule the case for
resententencing once the revised presentence investigation report
has been prepared and reviewed by counsel.

The new PSR, which Willis received on July 7, 2009, again set Willis’s total

offense level at 33. This calculation again included the firearm enhancement and

the estimated 32 kilograms of cocaine hydrochloride. Without the career offender

enhancement, Willis’s criminal history decreased to level II. This profile provided

a sentencing range of 151 to 188 months’ imprisonment.

Willis filed objections to the PSR on October 7, 2009. He contested the

firearm enhancement and the drug quantity, items that his § 2255 motion faulted

his trial counsel for neglecting. Regarding the drug quantity, Willis argued that he

actually distributed 14.75 kilograms of cocaine; this new quantity would reduce
5
his base offense level from 34 to 32, and his total offense level from 33 to 31. He

did not raise any objections to his new criminal history calculation.

The Probation Office responded to Willis’s objections on October 20, 2009,

which Willis’s attorney received on October 21, 2009. The Probation Office

recommended that the district court “engage in no further analysis” of both the

firearm enhancement and the drug quantity because the district court had not

granted Willis’s § 2255 claims regarding those two issues.

The same day that the Probation Office issued its responses, the district

court set October 22, 2009, as the date for Willis’s resentencing hearing. Noting

that 18 U.S.C. § 3552(d) requires that defendants be given at least ten days to

review the PSR, Willis filed a motion on October 20 to postpone the sentencing

hearing.

The sentencing hearing was held as scheduled on October 22. At that

hearing, the district court summarily denied Willis’s motion for a postponement.

The court stated that it only planned to address Willis’s career offender status. It

would not allow Willis to re-litigate the firearm enhancement and the drug

quantity because (1) the issues had been previously litigated during Willis’s

original sentencing and appeal, and (2) the court did not grant Willis’s § 2255

ineffective assistance claims regarding those issues. Having limited the hearing’s

6
scope, the court noted that Willis and his attorney both had access to his old PSR

from 2007—which was identical to the 2009 PSR except for the career offender

enhancement—and did not object to any statements regarding the PSR’s revised

criminal history category.

After addressing the postponement issue, the court accepted the PSR’s

calculations and determined that the guideline range suggested 151 to 188 months’

imprisonment. The Government then re-asserted its motion for a downward

departure under § 5K1.1 for Willis’s assistance in securing two other convictions.

The district court denied the Government’s motion. After reviewing Willis’s

criminal history, the court determined that Willis was a “lifelong major drug

dealer” who had been “very successful” at “us[ing] the system by saying ‘I will

provide substantial assistance’” every time he was caught in the act.

At the conclusion of the hearing, the court sentenced Willis to 151 months’

imprisonment, a $10,000 fine, a $100 special assessment, and five years of

supervised release.

C.

Willis filed a timely notice of appeal of his new sentence. His brief raised

three issues: (1) whether the district court should have postponed the October 22

hearing; (2) whether the district court correctly limited the scope of the sentencing

7
hearing; and (3) whether the district court imposed an unreasonable sentence by

denying the Government’s § 5K1.1 motion.

A panel of this court interpreted this appeal as challenging “both the district

court’s partial denial of his § 2255 motion and the new sentence the court imposed

after granting his § 2255 motion in part.” Noting that the district court did not

provide Willis a certificate of appealability on the remaining ineffective assistance

of counsel claims, as required by 28 U.S.C. § 2253(c), the panel’s April 29, 2010

opinion retained jurisdiction over Willis’s case, but issued a limited remand to the

district court to rule on the certificate of appealability issue. On remand, the

district court granted Willis a certificate of appealability on the ineffectiveness

claim regarding the firearm enhancement, but denied certificates of appealability

on the other four claims.3 We ordered Willis and the Government to file new

briefs in light of the district court’s order.

II.

Floating in this case are two competing notions of what, exactly, Willis is

challenging. The district court’s June 22, 2009 order denied in part Willis’s

3
Willis’s § 2255 motion raised six grounds. One ground, involving the career offender
enhancement, prevailed at the district court and served as the basis for his resentencing. The
district court rejected the other five grounds, but granted a certificate of appealability as
described above.

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§ 2255 motion, in which he argued that his trial counsel was ineffective for,

among other things, (1) failing to challenge adequately the firearm enhancement;

(2) failing to challenge the drug quantity; and (3) failing to address adequately a

motion to suppress the firearm that led to the sentencing enhancement. At the

October 22, 2009 resentencing hearing, the trial court prohibited Willis from

relitigating either the firearm enhancement or the drug quantity.

To the extent that Willis seeks to appeal the denial of claims from his

§ 2255 motion, the district court granted Willis a certificate of appealability only

on the ineffectiveness claim regarding the firearm enhancement, and it does not

appear that Willis asks this court for a certificate on the remaining claims or

challenges the district court’s substantive rulings on those claims. See part IV,

infra. Without a certificate of appealability, Willis may not challenge the denial of

his other § 2255 claims. 28 U.S.C. § 2253(c)(1)(B).

Although Willis had the right to appeal the denial of his firearm-

enhancement ineffectiveness claim, Willis appears to have abandoned that claim.

“[A] party seeking to raise a claim or issue on appeal must plainly and prominently

so indicate.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

This common-sense rule seeks to “avoid confusion as to the issues that are in play

and those that are not.” Id. Where a party fails to abide by this simple

9
requirement, he has waived his right to have the court consider that argument.

Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 373 (11th Cir. 1987).

Willis’s brief does not appear to contest the district court’s substantive

ruling—that his firearm-enhancement ineffectiveness claim had no merit. Rather,

he argues that the district court erred by not granting him an evidentiary hearing to

prove his claim.

A brief perusal of the relevant section of Willis’s brief illustrates this point.

First, the heading to this section reads: “The district court erred in limiting

objections to the revised presentence investigation report to merely the issue of

career offender.” Appellant Br. at 14.

Second, Willis does not cite any cases in support of his latent ineffective-

assistance claim. In fact, Willis’s brief does not even mention the familiar two-

part test for ineffective-assistance claims: (1) “counsel’s representation fell below

an objective standard of reasonableness”; and (2) counsel’s deficient performance

prejudiced him such that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

See Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064,

2068, 80 L. Ed. 2d 674 (1984). The only case he cites, Salazar v. United States,

319 F. App’x 815 (11th Cir. 2009), he does so to further his argument that the

10
district court should have held an evidentiary hearing, not for the proposition that

his attorney was constitutionally deficient and that prejudice ensued. Appellant

Br. at 15–16. Moreover, Salazar is unpublished and therefore non-binding; surely

Willis could have cobbled together an argument from this circuit’s plethora of

precedent on ineffective assistance of counsel.4

Finally, Willis’s discussion of the facts relevant to his ineffective-assistance

claim are sparse enough to suggest that he was not challenging the district court’s

denial of his § 2255 motion. Willis’s brief faults his trial counsel for not

“ma[king] appropriate objections to the [first PSR] and call[ing] witnesses to

support those objections.” Id. at 16. But nowhere in his brief does he suggest why

these commissions were errors, let alone objectively unreasonable. The following

excerpt from his brief is the extent of his specificity on the topic:

That evidence [of drug trafficking activity relied upon by the court of
appeals in affirming application of the firearm enhancement] would
have been much less than “substantial” if the witnesses such as the
real estate closing attorney and fiancé claiming ownership of the
firearm known to prior counsel had appeared or their affidavits and
business records had been presented along with the government’s
own evidence that [Willis] had been absent from the residence for the
prior month.

4
Although Willis’s initial § 2255 motion was prepared without counsel, we note that
Willis was represented by counsel on appeal and our forgiving posture towards pro se briefs
therefore does not apply. Cf. United States v. Ly, No. 09-12515, slip op. at 18–20 (11th Cir. July
20, 2011) (describing protections afforded to pro se litigants).

11
Id. at 17. And later in that same paragraph, Willis suggests that this information

was information that the district court should have considered during Willis’s

October 22 resentencing hearing, not that the court erred by denying his § 2255

motion. See id. at 17 (“[Willis] orally attempted to present this evidence himself

and requested additional time to call those witnesses but the court denied his

request choosing to rely on the information provided in the [PSR] . . . .”).

We therefore conclude that Willis has waived his right to challenge the

district court’s adverse ruling on his § 2255 motion.

III.

Willis next contends that the district court inappropriately limited the scope

of the resentencing hearing to solely the career offender enhancement.

Specifically, he argues that he should have been able to present evidence

contesting the firearm enhancement and the PSR’s drug-quantity estimate. This

argument is not a clever way to appeal the district court’s denial of his ineffective

assistance claims. Rather, Willis appears to argue that when a district court orders

“resentencing,” it must re-litigate all issues related to the defendant’s sentence.

The district court’s order granting Willis’s resentencing directed the

Probation Office “to prepare a new presentence investigation report reflecting the

fact that Willis is not a career offender under the sentencing guidelines,” but

12
otherwise did not indicate that Willis was barred from challenging other aspects of

the new PSR. At the October 22 hearing, however, the district court made clear its

intention only to resentence Willis absent the career offender enhancement

because only that claim merited § 2255 relief. The court noted that it had rejected

the remaining ineffective assistance claims, and that it would adhere fully to the

way the underlying issues—the firearm enhancement and the drug quantity—were

determined in Willis’s first round of sentencing.

The district court’s limitation was not improper. A similar situation arose in

United States v. Rogers, 848 F.2d 166 (11th Cir. 1988) (per curiam). In Rogers,

the defendant, who had pled guilty, stated at his sentencing hearing that he had no

factual challenges to the PSR. Id. at 167. After the court sentenced the defendant

to 25 years’ imprisonment, the defendant “moved for resentencing because he had

not been given an opportunity to allocute before sentence was imposed” as

required by Federal Rule of Criminal Procedure 32. Id. The district court granted

the defendant’s motion and ordered a resentencing hearing to allow the defendant

“‘to say anything he wants to say.’” Id. At the hearing, the defendant attempted to

raise objections to factual representations in the PSR. Id. The court stopped him

and stated that the hearing’s sole purpose was to permit allocution; the other issues

13
had been resolved at the first sentencing hearing. Id. After hearing the

defendant’s speech, the court imposed the same sentence. Id. at 168.

On appeal, the defendant argued that the district court erred by not

addressing his new objections to the PSR. Id. at 169. In particular, he noted that

“the court’s order scheduling resentencing did not limit the scope of the hearing,

and the court did not announce the limitation until his factual challenges were

raised.” Id.

We rejected this argument. In language perfectly suited to Willis’s

argument, we explained,

[A]lthough the court did not expressly state prior to the hearing that it
was limiting the hearing to allocution only, it made that point clear at
the hearing itself. There was nothing improper about that limitation
as it was in the interest of judicial economy for the court not to redo
that which had been done correctly at the first hearing.

Id.

Like the order in Rogers, the district court’s June 22 order did not

specifically limit sentencing to the career offender issue. But, like the Rogers

court, the district court made this limitation plain when Willis raised his objections

to the firearm enhancement and the drug quantity. The district court rejected

Willis’s ineffective-assistance claims regarding those issues and had no reason to

14
re-litigate what had, in its view, been decided without error. We do not see error

in its decision.

IV.

In a related argument, Willis argues that the district court erred by failing to

make “an individualized finding, supportable by a preponderance of the evidence,

as to the drug quantity foreseeable” by Willis, as required by United States v.

Bacon, 598 F.3d 772, 777–78 (11th Cir. 2010) (per curiam). Instead, Willis

argues, the district court made findings which were “just an estimate,” and that it

should have permitted Willis to present evidence regarding the drug quantity at his

2009 resentencing hearing.

Our discussion in part III, supra, disposes of this argument. During Willis’s

2007 sentencing and 2008 appeal, he did not challenge the PSR’s drug quantity.

His § 2255 motion alleged that his counsel was ineffective for failing to raise this

issue, but the district court rejected this claim and denied him a certificate of

appealability on that issue. His brief does not ask for a certificate of appealability

from this court, nor does it challenge the district court’s substantive ruling on his

ineffectiveness claim. Therefore, it appears that he faults the district court for not

permitting him to re-litigate the drug-quantity issue, or, alternatively, for not

making particular findings required by Bacon. As we discussed above, the district

15
court did not err by limiting Willis’s resentencing hearing to the career offender

issue. Willis’s argument here is simply another attempt to re-open decisions made

in 2007 that the district court determined it would not review.

V.

The next issue revolves around the district court’s decision to hold Willis’s

resentencing hearing on October 22. Although Willis and his attorney received

the new PSR on July 7, they received the Probation Office’s responses to Willis’s

objections on October 21, one day before the resentencing hearing. Willis argues

that this action violated his statutory right to receive the PSR “at least ten days

prior to the date sent for sentencing, unless this minimum period is waived by the

defendant.” 18 U.S.C. § 3552(d). We evaluate a district court’s compliance with

§ 3552(d) de novo. United States v. Davenport, 151 F.3d 1325, 1327–28 (11th

Cir. 1998).

“[T]he purpose of the ten-day requirement is to ensure accuracy and fairness

in sentencing by allowing the defendant adequate time to review and verify the

information contained in the [PSR] prior to sentencing.” Id. at 1328. Willis

claims that Davenport controls this issue. There, the defendant escaped from

custody before the probation office distributed the PSR. Id. at 1327. The district

court scheduled sentencing for the day after the defendant was apprehended,

16
which gave him only three hours to review the PSR on the day of his sentencing

hearing. Id. We held that the failure to grant a continuance was improper; the

defendant’s escape did not provide a “knowing and voluntary” waiver of his

§ 3552(d) right to ten-days’ notice. Id. at 1328–29. But see United States v.

Jordan, 216 F.3d 1248, 1249–51 (11th Cir. 2000) (holding that Davenport does

not prevent a district court from sentencing a defendant in absentia pursuant to

Federal Rule of Criminal Procedure 43).

The Government counters that, assuming there was error, any error was

harmless. Its argument first notes that the October 22 hearing’s purpose was

limited to resentencing Willis absent the career offender enhancement, and that

Willis raised no objections to that portion of the PSR. The Government also

asserts that the document Willis received on October 21—one day before his

sentencing hearing—contained no new material. The October 21 document

simply enclosed the Probation Office’s responses to Willis’s objections, which

were attached to the back of the PSR that Willis received on July 7. And that PSR,

the Government maintains, was virtually identical to the PSR used to sentence

Willis in 2007, the only difference being the career offender enhancement.

Whether harmless error applies to a violation of § 3552(d) is a question of

first impression for this circuit. Upon examination, we agree with the Government

17
that § 3552(d) is susceptible to harmless-error analysis. First, Davenport was

silent on this issue; its simply held that a defendant’s escape does not waive the

ten-day notice requirement. 151 F.3d at 1329. Second, at least two other courts of

appeals have applied harmless error to untimely disclosure of a PSR. See United

States v. Taylor, 72 F.3d 533, 550 (7th Cir. 1995) (“However, we do not believe

that the probation office’s eleventh-hour filing of the amended PSR significantly

affected [the defendant’s] right to a fair sentencing hearing.”); United States v.

Barry, 938 F.2d 1327, 1338–39, 1338 n.12 (D.C. Cir. 1991) (applying harmless

error to a similar requirement under Federal Rule of Criminal Procedure 32(c), but

indicating that this analysis also applied to the defendant’s § 3552(d) challenge).

Finally, federal statutes and criminal-procedure rules lay a background assumption

of harmless-error analysis. See 28 U.S.C. § 2111 (“On the hearing of any appeal

. . . the court shall give judgment after an examination of the record without regard

to errors or defects which do not affect the substantial rights of the parties.”); Fed.

R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”).

18
 We also agree with the Government that, assuming the district court

violated § 3552(d), any error was harmless.5 Willis’s brief mentions only one

form of prejudice: “With less than twenty-four hour notice as to the sentencing

hearing it was impossible for [Willis] to subpoena the witnesses necessary to

support his objections to the [PSR].” Appellant Br. at 13. But, as discussed in

part III, supra, the district court did not err by limiting resentencing to the career

offender enhancement. Because Willis did not object to the PSR’s analysis of his

5
We observe that § 3552(d)’s ten-day period might not have been violated in this case.
Willis received the revised PSR on July 7, 2009; the responses received on October 21, 2009 did
not alter any portion of that PSR. Therefore, one might argue—though the Government does
not—that the ten-day window had been satisfied. See United States v. Jackson, 186 F.3d 836,
838–39 (7th Cir. 1999) (finding no § 3552(d) violation during the defendant’s 1997 resentencing
because the defendant had reviewed a 1995 PSR—which was identical to the 1997 PSR—during
his original sentencing in 1995).
Furthermore, the Rules of Criminal Procedure suggest that the ten-day period applies only
to the initial PSR released by the Probation Office (the July 2009 document) and not to the
Probation Office’s responses (the October 21 document). Rule 32(e)(2) provides that “[t]he
probation officer must give the presentence report to the defendant [and] the defendant’s attorney
. . . at least 35 days before sentencing unless the defendant waives this minimum period.” Fed.
R. Crim P. 32(e)(2). This provision applies most readily to the revised PSR distributed in July
2009. Rule 32(g), however, only mandates a seven-day period between the sentencing hearing
and receipt of the Probation Office’s responses to the defendant’s objections: “At least 7 days
before sentencing, the probation officer must submit to the court and to the parties the
presentence report and an addendum containing any unresolved objections, the grounds for those
objections, and the probation officer’s comments on them.” Id. 32(g). This provision applies
most readily to the document released on October 21. The district court’s failure to grant a
continuance certainly violated this rule, but would be harmless for the reasons described in the
text.
So, unless Rule 32(g) and § 3552(d) are in direct conflict—because Rule 32(g) provides
the defendant with less than ten-days’ notice of the addendum—the addendum, which was
provided on October 21, is not covered by § 3552(d). The parties have not briefed this issue, and
the Government does not challenge Willis’s premise that § 3552(d) applies to the addendum
distributed on October 21. We therefore offer this footnote as an observation, and not a holding.

19
criminal history, these witnesses could only have testified to aspects of the PSR

that the district court specifically barred Willis from re-litigating—the firearm

enhancement and the drug quantity. Furthermore, Willis’s attorney acknowledged

at the October 22 hearing that the PSR distributed in July 2009 had the same

information contained in the PSR used to sentence Willis in 2007; Willis was

therefore fully aware of the Probation Office’s positions.

VI.

In addition to these procedural issues, Willis argues that his sentence is

substantively unreasonable. We review sentences for reasonableness, Rita v.

United States, 551 U.S. 338, 341, 127 S. Ct. 2456, 2459, 168 L. Ed. 2d 203

(2007), and the district court’s decision for an abuse of discretion, Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). The party

challenging the sentence bears the burden of establishing that the sentence is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

The only unreasonableness Willis cites is the district court’s denial of the

Government’s request for a downward departure under § 5K1.1. At Willis’s 2007

sentencing, the government made a similar motion, and the district court sentenced

Willis to 192 months’ imprisonment, an 18 percent decrease from the low-end of

Willis’s guideline range of 235 months’ imprisonment. Willis argues that, because

20
nothing had changed between 2007 and 2009, the district court’s failure to grant a

similar 18 percent decrease from his 151-month sentence was unreasonable.

Willis appears to be making two arguments here: (1) that the district court

should have granted the Government’s § 5K1.1 motion; and (2) that his 151-

month sentence is unreasonable.

Regarding the first, a district court’s refusal to apply a downward departure

is within the court’s discretion and may not be appealed, provided the court

recognized that it had the power to so depart from the guideline range. United

States v. Harness, 180 F.3d 1232, 1237 (11th Cir. 1999). Substantial-assistance

departures under § 5K1.1 fall under this category. Id. The district court clearly

understood that it had the power to depart from the guideline range and we

therefore lack jurisdiction to consider the district court’s ruling on this issue.

Regarding the second, Willis presents no other ground to find his sentence

unreasonable. 151 months’ imprisonment was the lowest end of the guideline

range, and the district court found that 151 months was appropriate punishment

given Willis’s crime and criminal history. We therefore conclude that his sentence

was reasonable.

VII.

21
 For the foregoing reasons, Willis’s sentence and the district court’s

resolution of his § 2255 motion are

AFFIRMED.

22