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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13926
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20135-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL DANGER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 1, 2013)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Danger appeals his convictions and sentences for conspiracy to
possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846, and
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possession with intent to distribute oxycodone, in violation of 21 U.S.C.
§ 841(a)(1). Before trial, Danger filed a motion for new counsel on the bases that
he was unable to communicate with his trial counsel because he did not speak
English and his trial counsel did not speak Spanish, and that his trial counsel did
not give him an appropriate amount of attention. After a hearing on the motion,
the district court denied Danger’s motion. Danger subsequently pleaded guilty and
received three concurrent terms of 36 months’ imprisonment.
On appeal, Danger first argues that the district court erred in denying his
motion for new counsel. Second, Danger argues that his sentence is substantively
unreasonable. After review, we affirm.
I. Motion for New Counsel
We review a district court’s ruling on a defendant’s motion for new counsel
for abuse of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir.
1997). In reviewing a district court’s denial of a motion for new counsel, we
consider: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry
into the merits of the motion; and (3) whether the conflict resulted in a total lack of
communication such that an adequate defense was not presented. Id. Even if the
district court abuses its discretion in denying a motion for new counsel, the error is
harmless unless the defendant shows that, in the context of the sentencing hearing,
he was somehow prejudiced by his counsel’s representation. Id.
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Here, Danger’s counsel assured the district court that he could provide
sufficient representation to Danger despite the language barrier, stated that he had
previously represented Spanish-speaking clients, and confirmed that he and his
investigator (who spoke Spanish) had met with Danger to discuss the case. Danger
pleaded guilty to his offenses, and his counsel successfully argued for a downward
variance based on the personalized circumstances of Danger’s case. Accordingly,
Danger has not shown that his trial counsel did not provide an adequate defense for
him at trial. Danger has also not argued, let alone sufficiently established, that he
was prejudiced by his counsel’s representation. See id. Accordingly, the district
court did not abuse its discretion in denying Danger’s motion for new counsel.
II. Reasonableness of the Sentence
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(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).
The district court must impose a sentence “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,
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provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. 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).
In reviewing the reasonableness of a sentence, we first ensure that the
sentence was procedurally reasonable, meaning the district court properly
calculated the guideline range, treated the Guidelines as advisory and not
mandatory, 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, 128 S. Ct. at 597. Once we determine that a sentence is procedurally
sound, we examine whether the sentence was substantively reasonable in light of
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.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not apply a
presumption of reasonableness for sentences falling within the guideline range,
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“ordinarily we would expect a sentence within the Guidelines range to be
reasonable.” United States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005).
Here, Danger’s sentence was substantively reasonable. We ordinarily expect
a guideline sentence to be reasonable, and Danger received a below-guideline
sentence. See id. Danger was held accountable for 45.1 grams of oxycodone as
the primary seller, and he was also connected to a much larger amount of pills.
The district court considered the statements of the parties and thoroughly discussed
the sentencing factors. Danger’s claim that there is an unwarranted disparity
between his sentence and the 32-month sentence of a co-defendant is without merit
because Danger pled guilty to all three counts of the indictment while the co-
defendant pled guilty to only one count. Accordingly, given the nature of the
offenses and the downward variance, the district court’s sentences were
substantively reasonable.
III. Conclusion
After careful review of the record, we affirm Danger’s convictions and
sentences.
AFFIRMED.
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