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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14072
Non-Argument Calendar
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D.C. Docket No. 4:17-cr-00263-WTM-GRS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE WILLIAMS,
a.k.a. TY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
________________________
(July 23, 2019)
Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Tyrone Williams appeals his 160-month sentence for distribution of heroin.
Williams argues that his mid-range sentence was procedurally unreasonable
because the district court improperly calculated the quantity of drugs he
distributed. He also argues that his sentence was substantively unreasonable
because the district court placed too much weight on his criminal history, resulting
in unwarranted disparity between his sentence and his codefendants’ sentences.
We disagree and affirm.
I.
A grand jury indicted Williams and five others on various drug crimes. 1
Williams pleaded guilty to distribution of heroin pursuant to a written plea
agreement.
According to the presentence investigation report (PSI), Williams sold 3.003
grams of crack cocaine to a Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) confidential informant. In a separate sale, Williams sold the informant 1.06
grams of heroin. When ATF agents arrested Williams, he had 0.80 grams of
marijuana. After converting the total quantity of all three drugs to the marijuana
equivalent, Williams was responsible for the equivalent of 11.77 kilograms of
marijuana.
1
The indictment charged Williams with conspiracy to possess with intent to distribute and
conspiracy to distribute several controlled substances under
21 U.S.C. § 846 and 18 U.S.C § 2:
distribution of crack cocaine and heroin under
21 U.S.C. § 841(a)(1); and possession of
marijuana under
21 U.S.C. § 844(a).
2
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The probation officer applied a base offense level of 14 based on the drug
quantity—11.77 kilograms of marijuana. See U.S.S.G. § 2D1.1(c)(13). Because
Williams had at least two prior felony convictions for controlled substance
offenses, he was categorized as a “career offender,” which increased his base
offense level to 32. Williams received a three-level reduction under § 3E1.1(a) and
(b) for acceptance of responsibility, resulting in a total offense level of 29.
Williams was a career offender because he had 18 prior felony convictions, 9 of
which involved possession or distribution of controlled substances. Even without
career offender status, Williams had 23 criminal history points, including 2 points
for committing the instant offense while on probation. Both Williams’ criminal
history and his status as a career offender thus independently established a criminal
history category of VI.
Based on a total offense level of 29 and a criminal history category of VI,
the guideline range was 151 to 188 months’ imprisonment. For an individual with
two or more prior felony-controlled-substance convictions, the statutory maximum
sentence is 20 years’ imprisonment.
21 U.S.C. §§ 841(a)(1), (b)(1)(C).
Williams objected to the PSI’s calculation of his criminal history points,
arguing that convictions from three of his arrests stemmed from a single case and
should not be considered because they occurred over fifteen years ago. The district
court overruled his objections and adopted the PSI’s factual statements and
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advisory sentencing guideline calculations. The court acknowledged that
Williams’ total offense level was 29 with a criminal history category of VI,
resulting in a guideline range of 151 to 188 months’ imprisonment. The court
sentenced Williams to 160 months’ imprisonment and three years’ supervised
release. In doing so, the court noted that it considered the statements of the parties,
the PSI, and the
18 U.S.C. § 3553(a) factors. The court specifically discussed two
of the § 3553(a) factors: (1) that Williams was on probation at the time of the
offense and (2) Williams’ criminal history, which spanned 26 years and resulted in
18 adult criminal convictions. The court also noted that this was Williams’ tenth
conviction involving controlled substances and that some of his earlier convictions
involved both controlled substances and firearms. Williams did not object to the
sentence, but now appeals.
II.
Williams first argues that his sentence was procedurally unreasonable
because the district court inflated his guideline score by improperly calculating the
quantity of heroin he distributed. According to Williams, his sentence should only
account for 3.68 kilograms of marijuana because he only sold 3.68 grams of
heroin.2 He also contends that the district court improperly included alternate
quantities of THC oil, which inflated the total drug quantity to 319.932 kilograms
2
According to the PSI, Williams sold 1.06 grams of heroin.
4
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of marijuana.3 Williams argues that his base offense level should have therefore
been 10, not 24. 4
A sentence is procedurally unreasonable if the district court miscalculated
the guideline range or selected the sentence using “clearly erroneous facts.”
United States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014). A defendant’s
“failure to object to allegations of fact in a PSI admits those facts for sentencing
purposes.” United States v. Wade,
458 F.3d 1273, 1277 (11th Cir. 2006) (citing
United States v. Shelton,
400 F.3d 1325, 1330 (11th Cir. 2005)). We review a
sentence for harmless error when the district court would impose the same
sentence regardless of the perceived error. See Williams v. United States,
503 U.S.
193, 203 (1992).
Because Williams did not object to the drug quantity or the offense level
calculation in the PSI, we review his procedural reasonableness challenge for plain
error. United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014) (noting
that we review unpreserved challenges to procedural reasonableness for plain
error). To establish plain error, a defendant must show (1) that there was an error;
(2) the error was plain, and (3) the error affected his substantial rights.
Id.
Williams failed to make such a showing. His allegation that the district court
3
This is incorrect. The PSI credited Williams with a total quantity of 11.77 kilograms of
marijuana.
4
Williams’ base offense level was 14, not 24.
5
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miscalculated the quantity of heroin and inflated it to 319 kilograms is unsupported
by the record; the PSI determined that he was responsible for 11.77 kilograms of
marijuana with an initial base offense level of 14, and did not refer to 319
kilograms or THC oil. Further, Williams did not object to the drug quantity
calculations, which effectively admitted those facts for sentencing purposes. See
Wade,
458 F.3d at 1277. Finally, even if the district court had miscalculated the
quantity of drugs, this was harmless error because Williams’ offense level was
ultimately determined by his status as a career offender, not by the drug quantity.
Accordingly, Williams failed to show that the district court committed plain error.
Williams’ 160-month sentence was procedurally reasonable.
III.
Williams next argues that his sentence is substantively unreasonable because
the district court ignored mitigating § 3553(a) factors and placed too much
emphasis on his criminal history. He also argues that this mistaken emphasis on
criminal history resulted in a disproportionate sentence in relation to his
codefendants.
“We review the substantive reasonableness of a sentence for an abuse of
discretion.” United States v. Osorio-Moreno,
814 F.3d 1282, 1287 (11th Cir.
2016). The weight given to any
18 U.S.C. § 3553(a) factor is committed to the
sound discretion of the district court. United States v. Clay,
483 F.3d 739, 743
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(11th Cir. 2007). The sentencing court may base its findings of fact on admissions
in a defendant’s guilty plea, undisputed statements in the PSI report, or evidence
presented at the sentencing hearing. United States v. Wilson,
884 F.2d 1355, 1356
(11th Cir. 1989). The district court does not abuse its discretion when it gives
substantial weight to a § 3553(a) factor if the sentence “was necessary to achieve
the goals of sentencing.” Osorio-Moreno, 814 F.3d at 1287. The defendant bears
the burden of establishing that the sentence is unreasonable in light of the record
and the § 3553(a) factors. United States v. Thomas,
446 F.3d 1348, 1351 (11th Cir.
2006).
Additionally, a district court must consider the need to “avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.”
18 U.S.C. § 3553(a)(6). But disparity does not exist if
the defendant and his codefendants are not “similarly situated,” United States v.
Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009), and defendants with different
criminal histories are not similarly situated, United States v. Spoerke,
568 F.3d
1236, 1252 (11th Cir. 2009).
Finally, although we do not presume that a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt,
526 F.3d 739, 746 (11th Cir. 2008). A sentence
imposed well below the statutory maximum penalty is another indicator of a
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reasonable sentence. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th
Cir. 2008) (per curiam) (holding that the sentence was reasonable in part because it
was well below the statutory maximum).
The district court’s imposition of a 160-month sentence was substantively
reasonable. The court stated that it considered the § 3553(a) factors and
determined that a 160-month sentence was necessary to achieve the goals of
sentencing. Specifically, the court emphasized that Williams had a 26-year
criminal history with 18 prior convictions, several of which involved controlled
substances. See, e.g., Osorio-Moreno, 814 F.3d at 1288 (holding that a sentence
was reasonable where the district court imposed a statutory maximum penalty
because of the defendant’s 20 prior convictions). It was within the sound
discretion of the district court to give substantial weight to such a lengthy criminal
history. See Clay,
483 F.3d at 743; Osorio-Moreno, 814 F.3d at 1288.
The district court also did not create unwarranted sentencing disparities
between Williams and his codefendants by sentencing Williams to 160 months.
None of Williams’ codefendants that received lesser sentences were similarly
situated because they (1) pleaded guilty to different offenses, (2) had different
criminal histories; and (3) had different guideline ranges. Docampo,
573 F.3d at
1101; Spoerke,
568 F.3d at 1252.
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Finally, the sentence was within the guideline range and well below the
statutory maximum of 240 months’ imprisonment, which indicates reasonableness.
Hunt,
526 F.3d at 746; Gonzalez,
550 F.3d at 1324. The district court did not
abuse its discretion because the 160-month sentence was substantively reasonable.
Accordingly, we affirm.
AFFIRMED.
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