[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-14890 APRIL 11, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 9:11-cr-80041-WPD-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CLEM DEMETRIOS BEAUCHAMP,
a.k.a. Clem Beauchamp,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 11, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Clem Beauchamp pleaded guilty to possession of an unregistered silencer,
in violation of 26 U.S.C. § 5861(d), and was sentenced to 120 months’
imprisonment. He now appeals, challenging the reasonableness of his sentence.
After review, we affirm.
At issue in this case is the district court’s consideration of an unrecorded
conversation between Beauchamp’s girlfriend Felicia Brown (Felicia) and her ex-
husband Peter Brown (Peter). After Felicia’s car was repossessed, an employee of
the repossession company found a revolver, silencer, and mask in the car. When
Felicia tried to reclaim her car from the impound lot and learned the items had
been given to police, she stated the items belonged to her boyfriend. Police
learned Beauchamp was the boyfriend and obtained a search warrant for his home.
During the search they found insulation and duct tape, along with a computer that
had been used to visit web sites detailing how to make a homemade silencer.
When questioned by police, both Felicia and Beauchamp denied seeing the
firearm and silencer found in her car. ATF special agent Daniel Dooley, seeking
to speak to Felicia alone, contacted Peter to speak to her on his behalf. Peter later
met with Felicia, gave her Dooley’s card, and, on his own, recorded their
conversation. In the recording, Felicia admitted that she had obtained the firearm
and Beauchamp had made the silencer. According to Peter, in an unrecorded part
of the conversation, Felicia told him that Beauchamp “was gonna to try to get rid
of” Michelle Dent, the mother of Beauchamp’s children. Peter did not contact the
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ATF agent after his meeting with Felicia, nor did he tell the police or ATF the
details of the conversation for fourteen months.1
Beauchamp pleaded guilty to possession of an unregistered silencer. The
district court calculated Beauchamp’s sentencing range under U.S.S.G.
§ 2K2.1(a)(3). When a defendant possesses the silencer in connection with the
attempted commission of another offense, however, the cross-reference provision
in § 2K2.1(c)(1)(A) instructs the court to apply the guideline applicable to the
attempted offense. U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1, 2A1.5. Based on Peter’s
testimony of the unrecorded conversation with Felicia, the district court found that
Beauchamp and Felicia conspired to commit murder and thus determined that the
base offense level was 33 under U.S.S.G. § 2A1.5 – the guideline applicable to
murder. With a three-level reduction for acceptance of responsibility,
Beauchamp’s total adjusted offense level was 30. Beauchamp had a lengthy
criminal history, including several violent offenses, which placed him in criminal
history category III. The resulting guideline range was 121 to 151 months’
imprisonment. Because § 5861 carried a statutory maximum sentence of 120
months’ imprisonment, this became the guideline range. U.S.S.G. § 5G1.1(a).
1
By the time of Beauchamp’s sentencing hearing, Felicia was dead and Beauchamp had
been charged with her murder.
3
Beauchamp objected to the court’s reliance on Felicia’s uncorroborated
hearsay statement to Peter. After listening to the arguments and finding Peter’s
testimony credible and reliable, the court concluded that 120 months’
imprisonment was the proper sentence. The court further stated that “even if the
guidelines are wrong, even if my scoring of the guidelines are wrong based on
3553(a), I find that a reasonable and sufficient sentence in this case is 120 months
in prison.” The court did not otherwise mention the § 3553(a) factors or state how
it had arrived at the sentence. This is Beauchamp’s appeal.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41
(2007). We may “set aside a sentence only if we determine, after giving a full
measure of deference to the sentencing judge, that the sentence imposed truly is
unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en
banc), cert. denied, 131 S.Ct. 1813 (2011). A sentence may only be vacated if we
are left with a “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).
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The district court is required to impose a sentence that is “sufficient, but not
greater than necessary to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including 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, medical
care, or other correctional treatment. See 18 U.S.C. § 3553(a)(2). The district
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 issued by the
Sentencing Commission, the need to avoid unwarranted sentence disparities, and
the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
In reviewing the reasonableness of a sentence, we must first ensure that the
sentence was procedurally reasonable, meaning the district court properly
calculated the guideline range, treated the Guidelines as advisory, considered the
§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Gall, 552 U.S. at 51. Once we
determine a sentence is procedurally reasonable, we must examine whether the
sentence, including the extent of any variance, was substantively reasonable under
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the totality of the circumstances. Id. A sentence may be substantively
unreasonable if the district court arbitrarily selects the sentence, bases the sentence
on impermissible factors, or fails to consider pertinent § 3553(a) factors. Pugh,
515 F.3d at 1192. Beauchamp bears the burden to show his sentence is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In this case, Beauchamp argues that his sentence was procedurally
unreasonable because the district court gave undue weight to the uncorroborated
hearsay testimony. He argues that the sentence is substantively unreasonable
because it is well above the guideline range that he would have faced had the court
not considered the hearsay testimony.
A. Procedural Reasonableness
We review credibility determinations for clear error. United States v.
Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004). We will not reverse the district
court’s credibility determination “unless it is contrary to the laws of nature, or is
so inconsistent or improbable on its face that no reasonable factfinder could accept
it.” Id. As for the use of hearsay evidence at sentencing, “the court may consider
relevant information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability
to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v.
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Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010).
Our case law clearly provides that reliable hearsay can be considered during
sentencing. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999). The
district court may rely on such evidence “as long as the evidence has sufficient
indicia of reliability, the court makes explicit findings of fact as to credibility, and
the defendant has an opportunity to rebut the evidence.” United States v.
Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quoting United States v.
Anderton, 136 F.3d 747, 751 (11th Cir. 1998)).
After review, we see no procedural error in the court’s reliance on Peter’s
testimony. The district court properly considered the hearsay testimony,2 and
made explicit factual findings as to Peter’s credibility. We will defer to that
finding. Based on this testimony, the court properly calculated the guideline range
using the cross-reference provision in § 2K2.1(c)(1)(A). Peter’s testimony
established that Beauchamp and Felicia possessed the firearm and silencer as part
of their plot to murder Michelle Dent. Thus, § 2A1.5(a), the guideline applicable
to murder, was the correct guideline.
2
Notably, Beauchamp challenges only the reliability of the statement. He does not argue
that the court’s admission of the testimony violated his due process rights. Nor does he allege
that the district court failed to sufficiently explain the sentence imposed. Thus, he has waived
this issues. United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010).
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Nevertheless, even if the court’s guideline calculation was in error, the error
was harmless. The court stated that it would have imposed the same 120-month
sentence based on the § 3553(a) factors. “An error in the district court’s
calculation of the Sentencing Guidelines range warrants vacating the sentence,
unless the error is harmless. A Sentencing Guidelines miscalculation is harmless
if the district court would have imposed the same sentence without the error.”
United States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009) (citation
omitted) (if “a district judge clearly states that he would impose the same sentence,
even if he erred in calculating the guidelines, then any error in the calculation is
harmless”); see also United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).
B. Substantive Reasonableness
The district court imposed the statutory maximum sentence after
considering the § 3553(a) factors. The district court also was well aware of the
sentencing range Beauchamp faced without the cross-reference provision and the
other information in the presentence investigation report. Although the court did
not explicitly discuss the § 3553(a) factors, it was not required to do so. United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). In this case, Beauchamp
had a criminal history category III with several violent offenses. The court found
that his possession of the unregistered silencer was related to a conspiracy to
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commit murder. In imposing the sentence, the district court stated that it had
considered the guidelines and the sentencing factors. Considering the totality of
the circumstances, we cannot conclude that the sentence imposed, although at the
statutory maximum, was substantively unreasonable, and Beauchamp has not met
his burden to show otherwise.
AFFIRMED.
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