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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11132
Non-Argument Calendar
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D.C. Docket No. 2:16-cr-14002-RLR-1
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JULIUS ANDREW REASON,
Defendant–Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 20, 2018)
Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.
PER CURIAM:
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Julius Andrew Reason appeals his 235-month sentence, imposed after his
guilty plea, for conspiracy to import dibutylone HCI (“dibutylone”) into the United
States, in violation of 21 U.S.C. §§ 952(a) and 963, and conspiracy to possess with
intent to manufacture and distribute dibutylone, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Reason’s sentence is more than ten years below the lower
end of the applicable Sentencing Guidelines range. He argues that the District
Court: (1) procedurally erred by misapplying U.S.S.G. § 2D1.1 cmt. n.6
(“Application Note 6”) and clearly erred by finding that, for purposes of
calculating his offense level, MDMA and MDEA were the substances “most
closely related” to dibutylone and ethylone, respectively; 1 (2) erred by applying a
four-point enhancement, pursuant to U.S.S.G. § 3B1.1(a), based on its finding that
Reason was an organizer or leader of a criminal activity that involved five or more
participants or that was otherwise extensive; (3) erred by applying a two-point
enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based on its finding that Reason
possessed a firearm; and (4) erred by imposing an otherwise procedurally and
substantively unreasonable sentence.
We disagree with each of Reason’s arguments and affirm the District
Court’s sentence.
1
Reason’s total offense level reflects that he was held responsible for, among other
substances, 10.34 kg of dibutylone and 9.98 kg of ethylone.
2
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I.
Citing Federal Rule of Appellate Procedure 28(i), Reason adopts the
portions of the initial and reply briefs filed by his co-appellant, Venteria Reason,
that argue that the District Court procedurally erred by misapplying Application
Note 6 and that it clearly erred by concluding that dibutylone and ethylone were
most closely related to MDMA and MDEA. Reason adopts a losing position. See
United States v. Reason, No. 17-11134, 2018 WL 388238 (11th Cir. Jan. 12, 2018).
We therefore reject these arguments.
II.
Reason next argues that the District Court erred in applying U.S.S.G.
§ 3B1.1(a)’s four-point aggravating-role enhancement because the criminal activity
to which he was an “organizer or leader”2 did not “involve[] five or more
participants” and was not “otherwise extensive.”
A district court’s determination of a defendant’s role in an offense is a
finding of fact that we review for clear error. United States v. Moran, 778 F.3d
942, 979 (11th Cir. 2015). “For a factual finding to be clearly erroneous, we must
be left with a definite and firm conviction that a mistake has been committed.” Id.
The sentencing court’s factual findings for purposes of sentencing can be based on
“evidence heard during trial, undisputed facts in the [presentence investigation
2
Reason does not contest that he was an organizer or leader of criminal activity.
3
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report], or evidence presented during the sentencing hearing.” United States v.
Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
Under § 3B1.1(a), a defendant receives a four-level increase in his offense
level if he “was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” A “participant” is someone “who is
criminally responsible for the offense, but need not have been convicted.”
U.S.S.G. § 3B1.1 cmt. n.1. A court determines the number of participants by
tallying the number of individuals involved in the relevant conduct for which the
defendant was responsible, including the events surrounding the criminal act.
United States v. Holland, 22 F.3d 1040, 1045–46 (11th Cir. 1994). The defendant
himself is counted in the calculation. Id. at 1045.
The District Court did not clearly err in finding that more than five people
participated in the criminal activity. 3 Reason and his two convicted codefendants
clearly qualify as participants in the criminal activity because they were criminally
responsible for the offense. See U.S.S.G. § 3B1.1 cmt. n.1. Further, the
Government presented ample evidence that at least three others participated in the
criminal activity for which Reason was responsible by, among other things,
distributing and coordinating sales of drugs, collecting drug proceeds, and
3
Because the District Court did not err in finding that the relevant criminal activity
involved five or more participants, we do not need to address Reason’s argument that the
criminal activity was not “otherwise extensive.”
4
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receiving drugs up front without payment. That these other individuals were not
charged and convicted does not preclude them from being § 3B1.1 participants.
See Holland, 22 F.3d at 1045–46; U.S.S.G. § 3B1.1 cmt. n.1. The Court therefore
properly applied § 3B1.1(a)’s four-level enhancement.
III.
Third, Reason contends that the District Court erred in applying a two-point
U.S.S.G. § 2D1.1(b)(1) dangerous-weapon enhancement because he had no “actual
or constructive knowledge of the firearm” found under the passenger seat of his
vehicle after his arrest. Reason adds that the firearm did not contain his DNA or
fingerprints, and that another individual occupied the passenger seat during his
arrest. He also asserts that the Government failed to prove that the firearm was
used in connection with criminal activity.
We review for clear error a district court’s factual findings under
§ 2D1.1(b)(1), and de novo the application of the Guidelines to those facts. United
States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). Sentencing Guideline
§ 2D1.1(b)(1) adds a two-point enhancement if a firearm is possessed in
connection with a conspiracy to possess and distribute drugs. Application Note
11(A) to § 2D1.1 states that the dangerous weapon enhancement “should be
applied if the weapon was present, unless it is clearly improbable that the weapon
was connected with the offense.” The firearm enhancement is “to be applied
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whenever a firearm is possessed during conduct relevant to the offense of
conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).
Relevant conduct includes acts “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” Id. (quotation omitted).
After the Government has shown that a firearm was present, the evidentiary burden
shifts to the defendant, who must show that a connection between the firearm and
the offense is clearly improbable. United States v. Fields, 408 F.3d 1356, 1359
(11th Cir. 2005).
The District Court did not clearly err in applying the § 2D1.1(b)(1)
enhancement. The Government showed that a firearm was present during the
controlled transfer that culminated in Reason’s arrest and presented substantial
evidence that Reason frequently requested to use his codefendant’s firearm,
possessed firearms, and discussed the locations of various firearms. Reason then
failed to meet the burden of proving that a connection between the firearm and the
offense was “clearly improbable.” See id. at 1359.
IV.
Finally, Reason claims that two additional District Court errors render his
sentence procedurally and substantively unreasonable. Reason first argues that the
Court did not account for his belief that he was importing a “knock off drug” that
was “less potent” than the comparator substances used to calculate his sentence,
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MDMA and MDEA. As discussed in Reason, 2018 WL 388238 at *5, this
argument fails.4 Second, Reason contends that the Court failed to “sufficiently
discuss” all of the required 18 U.S.C. § 3553(a) factors when issuing his sentence.
We review a sentence’s reasonableness under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). A two-step process guides our review. Id. at 51, 128 S. Ct. at 597. First,
we confirm 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 18 U.S.C. § 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. We then consider the substantive reasonableness of the
4
Reason’s co-appellant made a similar argument, rejected in Reason, 2018 WL 388238
at *5, that the equivalence ratios assigned to MDMA and MDEA for purposes of sentencing are
unfitting for dibutylone and ethylone, requiring a lower sentence to be issued. Though it is
unclear from his brief, Reason appears to have adopted that argument. If he did, then we reject
it, as we did before. But Reason’s brief also articulates an ostensibly different argument—that
the District Court should have accounted for his belief that he was importing knockoff drugs less
potent than MDMA and MDEA. Our logic in Reason also takes care of this claim. See id.
Boiled down, Reason, like his co-appellant, merely argues that the equivalence ratios of MDMA
and MDEA are too harsh given the differences between those substances and dibutylone and
ethylone, the substances Reason was importing.
Regardless, the fact remains that the Court properly found that MDMA and MDEA were
appropriate comparators. Indeed, following Application Note 6’s requirements, the Court
considered the potencies of the substances in making this determination. Nothing in Application
Note 6 imposes, as Reason asserts, the further requirement that “sufficient evidence” show that
the defendant “knew [the substances he was importing] were the equivalent of and had the same
potency as [the Court’s chosen comparator substances].”
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sentence given totality of the circumstances. Id. The party challenging the
sentence bears the burden of proving the sentence unreasonable in light of the
record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010).
A district court’s sentence must be “sufficient, but not greater than
necessary, to comply with the purposes” of § 3553(a). 18 U.S.C. § 3553(a). When
a district court decides that the § 3553(a) factors support a variance, it should
explain “with sufficient justifications” why the variance “is appropriate in a
particular case.” Gall, 552 U.S. at 46, 128 S. Ct. at 594. The court’s justification
must be “compelling enough to support the degree of the variance and complete
enough to allow meaningful appellate review,” but “an extraordinary justification”
is not required. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)
(quotation omitted).
The District Court explained at length the considerations which informed its
235-month sentence, many of which directly implicated the relevant § 3553(a)
factors. There is enough in the record and in the District Court’s explanation of
Reason’s sentence to satisfy us that the Court “considered the parties’ arguments
and ha[d] a reasoned basis for exercising [its] own legal decisionmaking
authority.” See Rita v United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468
(2007). Its sentence was thus procedurally reasonable.
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The Court’s sentence was also substantively reasonable. Reason’s 235-
month sentence fairly reflects the Court’s consideration of the sentencing factors.
See United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010). The record and
the Court’s explanation at sentencing justify the more than ten-year downward
variance it applied. And that Reason’s sentence is well below the relevant
Guidelines range further diminishes his position that it is substantively
unreasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008). The District Court therefore did not err in imposing Reason’s 235-month
sentence.
V.
For the reasons discussed, the District Court did not err in calculating or
imposing Reason’s 235-month sentence.
AFFIRMED.
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