[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2009
No. 08-13581 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00148-CR-BBM-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS BODENHAMER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 16, 2009)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
After pleading guilty, Travis Bodenhamer1 appeals his 120-month sentences
for conspiracy to distribute and possess with intent to distribute at least 5 kilograms
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and possession with intent
to distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §
841(a)(1),(b)(1)(A)(ii) and 18 U.S.C. § 2. After review, we affirm.
I. BACKGROUND FACTS
In April 2007, Drug Enforcement Agency (“DEA”) agents received
information from a confidential source that members of a cocaine distribution
organization that brought drugs from Mexico were looking for new distributors in
the Atlanta area. An undercover agent, posing as a cocaine dealer looking for a new
supplier, met with members of the cocaine distribution organization and arranged
for a shipment of cocaine to be delivered.
After conducting surveillance of the cocaine shipment’s delivery to Atlanta,
agents stopped the vehicles of members of the cocaine distribution organization.
Inside one of the vehicles, agents found three suitcases containing 60 kilograms of
cocaine. DEA agents debriefed one of the members and learned that the cocaine
had been transported from Texas by Defendant Bodenhamer, who had not yet been
arrested.
1
Bodenhamer’s name was misspelled in the indictment and in other district court
pleadings.
2
When agents approached Bodenhamer in Texas, he agreed to cooperate.
Bodenhamer admitted that he had transported the cocaine to Atlanta and that, since
January 2007, he had been paid $600 per kilogram of cocaine he transported.
Bodenhamer also turned over to agents a ledger for 2007 that showed seven prior
cocaine pickups or deliveries involving a total of 235 kilograms of cocaine.
Bodenhamer indicated that he currently was storing 71 kilograms of cocaine, 50
kilograms of which he was to deliver to Atlanta, with the remainder to be delivered
to Grand Rapids, Michigan. After Bodenhamer told agents where they could find
the cocaine in his backyard, agents seized the 71 kilograms of cocaine and $65,000
in cash. Later, while under law enforcement supervision, Bodenhamer made
controlled deliveries of the cocaine found in his backyard to Atlanta and Michigan.
II. DISCUSSION
A. Drug Quantity Calculation
Bodenhamer argues that the district court erred in calculating the drug
quantity attributed to him for sentencing purposes.2
A district court must take into account all “relevant conduct” when
determining the drugs attributable to the defendant for sentencing purposes.
U.S.S.G. § 1B1.3(a)(1). Thus, “the defendant is accountable for all quantities of
2
We review for clear error a district court’s determination of drug quantity. United States
v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).
3
contraband with which he was directly involved and, in the case of a jointly
undertaken criminal activity, all reasonably foreseeable quantities of contraband
that were within the scope of the criminal activity that he jointly undertook.”
U.S.S.G. § 1B1.3 cmt. n.2. Where “the amount [of drugs] seized does not reflect
the scale of the offense,” the sentencing court shall estimate the drug quantity by
considering, inter alia, financial or other records. U.S.S.G. § 2D1.1, cmt. n.12.
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, such as drug amount, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398
F.3d at 1296.
Bodenhamer’s presentence investigation report (“PSI”) attributed 366
kilograms of cocaine to Bodenhamer and included the 235 kilograms of cocaine
deliveries/pickups listed in Bodenhamer’s ledger. Specifically, the relevant conduct
section of the PSI included a chart that detailed the ledger entries by date, drug
amount, location and amount of money paid, as follows:
Date Drug/Amount Location Amount Paid
January 11, 20 kilograms of Houston, Texas $12,000
2007 cocaine
January 18, 40 kilograms of Grand Rapids, $24,000
2007 cocaine Michigan
February 5, 20 kilograms of Houston, Texas $9,000
4
2007 cocaine
February 15, 30 kilograms of Grand Rapids, $24,000
2007 cocaine Michigan
March 8, 40 kilograms of Grand Rapids, unknown
2007 cocaine Michigan amount
March 16, 41 kilograms of transported 20 to unknown
2007 cocaine Tampa, Florida, amount
and 21 to Ocala,
Florida
April 4, 2007 44 kilograms of Grand Rapids, unknown
cocaine, and Michigan amount
picked up
$750,000 cash
Totals 235 $69,000
The PSI recommended holding Bodenhamer accountable for the 235 kilograms set
forth in the chart, as well as the 131 kilograms of cocaine seized during the
undercover investigation, for a total of 366 kilograms of cocaine.
At sentencing, Bodenhamer objected to the inclusion of the 235 kilograms of
cocaine from the ledger. Bodenhamer argued that these amounts reflected in the
ledger should not be counted because the ledger was not supported by any other
corroborating evidence and thus was insufficient to carry the government’s burden
of proof. The district court overruled Bodenhamer’s objection, stating “under the
rules it counts, so I’m going to count it.”
We conclude that the district court’s drug quantity determination was not
5
clearly erroneous. Bodenhamer admitted to agents that he had been delivering
cocaine for the drug distribution ring since January 2007 and was paid $600 per
kilogram he delivered. Bodenhamer then turned over his ledger, which showed
seven prior drug deliveries. Bodenhamer also completed his last two deliveries
under law enforcement supervision, one of which was to the Grand Rapids area of
Michigan.
Although the ledger was not introduced into the record, the chart within the
PSI provided the ledger’s actual entries. Notably, Bodenhamer did not dispute that
the contents of the chart came from his ledger or claim that the chart was inaccurate.
See United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (“A sentencing
court’s findings of fact may be based on undisputed statements in the PSI.”).
According to the chart, the first cocaine delivery in the ledger occurred on January
11, 2007. Some of the ledger entries reflect a pay equal to $600 per kilogram, and
four of the deliveries were to Grand Rapids, Michigan, where the final controlled
delivery occurred. These undisputed facts are sufficient to support the district
court’s finding by a preponderance of the evidence that Bodenhamer was involved
with the seven cocaine deliveries listed in the ledger and that these deliveries were
relevant conduct to the instant offense.
Contrary to Bodenhamer’s claims, his case is not analogous to United States
6
v. Lawrence, 47 F.3d 1559 (11th Cir. 1995). In Lawrence, the PSI’s undisputed
factual statements about drug quantity related only to the number of transactions
that occurred in four hours of surveillance tape and the average weight of the drugs
sold on that day. Id. at 1562-64. The sentencing court used these figures to
extrapolate the defendants’ drug quantities over the life of the conspiracy. Id. at
1565. The PSI also failed to reveal the source for much of the information it
contained. Id. at 1567-68. The Lawrence Court concluded that the PSI “did not
provide the necessary evidentiary foundation,” particularly with regard to each
defendant’s individual involvement. Id.
Here, unlike in Lawrence, the PSI contained undisputed facts about each
individual drug shipment attributed to Bodenhamer. The source of this
information–the ledger provided by Bodenhamer himself–was clearly identified and
not in dispute. The undisputed facts in the PSI were sufficient to support the
sentencing court’s drug quantity finding by a preponderance of the evidence.
Additionally, there is no merit to Bodenhamer’s argument that the district
court failed to make a factual finding as to whether the ledger reflected relevant
conduct. The district court explicitly stated that the Sentencing Guidelines required
the drug shipments in the ledger to be counted and indicated that it would count
them.
7
B. Reasonableness
We review the reasonableness of a sentence for abuse of discretion using a
two-step process. United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir. 2008).
First, we look at whether the district court committed any significant procedural
error, such as miscalculating the advisory guidelines range, treating the guidelines
as mandatory or failing to consider the 18 U.S.C. § 3553(a) factors. Id. Then, we
look at whether the sentence is substantively reasonable under the totality of the
circumstances. Id. The party challenging the sentence bears the burden to show it
is unreasonable in light of the record and the § 3553(a) factors. United States v.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).3 Although we do not apply a
presumption of reasonableness to a sentence imposed within the correctly calculated
advisory guidelines range, we ordinarily expect such a sentence will be reasonable.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
The only procedural irregularity Bodenhamer identifies is the calculation of
the drug quantity attributed to him. As already discussed, the district court did not
3
The § 3553(a) 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 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 Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
8
err in determining the drug quantity.
Furthermore, Bodenhamer’s 120-month sentence, which was below the
advisory guidelines range of 135 to 168 months’ imprisonment, is not substantively
unreasonable in light of the § 3553(a) factors. Bodenhamer argues that the district
court failed to adequately consider his cooperation with the government, his first-
time offender status and the fact that his co-defendants, who were equally or more
culpable, received lower sentences. The record does not bear this out. Among
other things, the district court specifically noted that Bodenhamer had cooperated
with the government and was a first-time offender. Indeed, the district court
granted Bodenhamer safety-valve relief and a downward variance based on that
cooperation. The district court also acknowledged that one of Bodenhamer’s co-
defendants had received a lighter sentence, and explained that this was because the
co-defendant’s cooperation was even more valuable than Bodenhamer’s
cooperation.
Although Bodenhamer asserts that all of his co-defendants received lower
sentences, Bodenhamer has not provided the kind of information needed to show
that any disparity in their sentences is unwarranted. For example, Bodenhamer does
not dispute the government’s claim that two co-defendants, Cesar and Jesus
Chacon, were sentenced based on substantially smaller drug quantities. In sum,
9
Bodenhamer has not carried his burden to show his sentence was unreasonable.
AFFIRMED.
10