United States v. Burson J. Augustin, a.k.a. Zoe ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12157
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00124-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BURSON AUGUSTIN,
Defendant-Appellant.
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No. 14-12221
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00123-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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BURSON J. AUGUSTIN,
a.k.a. Zoe,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
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(June 2, 2015)
Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Burson Augustin appeals his 16-month sentence,
imposed near the low end of the advisory guideline range, after pleading guilty to
distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C),
and also appeals the revocation and sentence imposed for violating his supervised
release based on the cocaine distribution charge, 18 U.S.C. § 3583(e)(3). On
appeal, Augustin argues that his 16-month sentence for distribution of cocaine is
substantively unreasonable because he should have been granted a two-level
variance in his total offense level in light of (1) an expected amendment to the drug
quantity table in the Sentencing Guidelines and (2) a memorandum from the
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United States Attorney General dated August 12, 2013 (“August 12
Memorandum”). 1 After careful review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)). In reviewing the “‘substantive reasonableness of [a] sentence
imposed under an abuse-of-discretion standard,’” we consider the “‘totality of the
circumstances.’” Id. at 1190 (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). 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 “[W]e will
not second guess the weight (or lack thereof) that the [court] accorded to a given [§
3553(a)] factor ... as long as the sentence ultimately imposed is reasonable in light
of all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872
(11th Cir. 2010) (quotation, alteration and emphasis omitted). The party
challenging the sentence bears the burden to show it is unreasonable. United
1
On appeal, Augustin does not challenge the revocation of his supervised release nor the
sentence imposed for a violation of his supervised release. Therefore, those issues are
abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
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).
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States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). While we do not
automatically presume a sentence falling within the guideline range to be
reasonable, we ordinarily expect that sentence to be reasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). Moreover, a sentence imposed well
below the statutory maximum penalty is an indicator of a reasonable sentence. See
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the
sentence was reasonable in part because it was well below the statutory maximum).
First, we are unpersuaded by Augustin’s claim for a variance in his sentence
for distribution of cocaine based on an expected amendment to the drug quantity
table in the Sentencing Guidelines. While the amendment Augustin expected took
effect on November 1, 2014 as Amendment 782, Augustin does not cite to any
controlling precedent for the proposition that the district court abused its discretion
by not granting a variance based on a pending amendment that may or may not
take effect. U.S.S.G. App. C, Amend. 782 (2014). As the record reflects, the
district court considered Augustin’s request for a variance, but denied the request
because it was uncertain if the amendment would be adopted and made retroactive.
Thus, the district court did not abuse its discretion by sentencing within the
guideline range rather than anticipating a future amendment to the Guidelines.
Nor are we persuaded by Augustin’s argument for a variance based on the
August 12 Memorandum. We’ve held that “Justice Department policies . . . are
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merely matters relating to the internal operations of the Justice Department and
create no enforceable right on the part of a criminal defendant.” United States v.
Bagnell, 679 F.2d 826, 832 (11th Cir. 1982). Thus, in Bagnell, we recognized it
was “solely within the province of the Justice Department to determine whether an
internal policy against forum shopping in obscenity cases should bar prosecution in
a given case.” Id.
The record reveals that Augustin asked the district court to take judicial
notice of it, but he did not submit it into the record or include it in his appendix on
appeal. The August 12 Memorandum appears to be available on the Justice
Department’s website at http://www.justice.gov/oip/docs/ag-memo-department-
policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-
certain-drugcases.pdf (last visited Apr. 27, 2015). Assuming that the
memorandum on the Justice Department’s website is the August 12 Memorandum
cited by Augustin, it addresses Justice Department policy on charging mandatory
minimum sentences and recidivist enhancements in certain drug cases, issues that
are irrelevant to Augustin’s sentence. But regardless of whether this memorandum
is in fact the August 12 Memorandum to which Augustin refers, we have noted that
internal Justice Department policies do not create an enforceable right for the
defendant. See Bagnell, 679 F.2d at 832. Therefore, the August 12 Memorandum
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does not support Augustin’s argument that the district court erred by denying his
request for a variance.
Further, Augustin admitted that he sold cocaine to an informant while he
was on supervised release. In light of these facts, Augustin’s 16-month sentence is
not unreasonable because it is not outside the range of reasonable sentences under
the § 3553(a) factors. Augustin’s 16-month sentence was also within his advisory
guideline range and well below the statutory maximum sentence of 20 years. See
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); Gonzalez, 550 F.3d at 1324. As a result,
Augustin has not met his burden to show that his sentence was unreasonable in
light of the record and § 3553(a).
AFFIRMED.
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