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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11200
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60231-CMA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY DEVON SPELLS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 24, 2020)
Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Tony Spells appeals his 48-month sentence for making a false statement in
information required to be kept in the records of a licensed firearm dealer. He
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argues that the district court miscalculated his base offense level under the United
States Sentencing Guidelines and that his sentence is disproportionately harsher
than sentences imposed on other defendants convicted of making false statements. 1
After careful review, we affirm.
I.
In April 2018, Spells applied to purchase a firearm at a pawn shop in Fort
Lauderdale. On the paperwork for purchase, Spells indicated that he had never
been convicted of a felony. At the time, however, Spells had at least seven felony
convictions and knew he was a convicted felon. The pawn shop submitted Spells’s
paperwork to the National Instant Criminal Background Check System, which
denied Spells’s application to buy a firearm.
In December 2018, a superseding indictment charged Spells with making a
false statement to a federally licensed firearm dealer in violation of
18 U.S.C.
§ 922(a)(6) and knowingly making a false statement in information required to be
kept in the records of a federally licensed firearm dealer in violation of 18 U.S.C.
1
In his reply brief, Spells argues that his plea was involuntary and his indictment was
defective. In support, he cites Rehaif v. United States, 588 U.S. ___,
139 S. Ct. 2191 (2019).
Because Spells did not raise these arguments in his initial brief (filed after Rehaif was decided),
the government moved to strike Spells’s reply brief. This Court granted that motion. For this
reason, we do not consider these arguments. See Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen,
815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (“It is well settled that a party cannot argue an issue
in its reply brief that was not preserved in its initial brief.”).
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§ 924(a)(1)(A). In January 2019, Spells pled guilty to the second count before a
magistrate judge, and the district court accepted his plea.
Before Spells was sentenced, the Probation Office prepared a presentence
investigation report (“PSR”). The PSR described Spells’s criminal history,
including two Florida domestic-violence-related convictions from 2003 and 2010.
The PSR also noted that Spells was served with two temporary domestic-violence
injunctions related to these convictions, as well as four domestic-violence
injunctions stemming from other incidents. On this basis, the PSR assigned Spells
a criminal history category of IV.
The PSR determined that Guideline § 2K2.1 governed Spells’s offense and
assigned Spells a base level offense of 24 pursuant to § 2K2.1(a)(2). Spells
received a reduction of 3 levels for accepting responsibility and timely notifying
the government of his intent to plead guilty, putting his total offense level at 21.
At sentencing, the district court calculated a guideline range of between 57-
and 60-months imprisonment. Spells argued that he should receive a downward
variance, based on a 30-month sentence another judge recently imposed on a
defendant with similar criminal history convicted of a similar offense. The court
acknowledged that the other defendant’s case was “comparable” to Spells’s, but
noted that Spells had “refused to accept responsibility until the very, very end”
while the other defendant pled guilty “early on.” Spells also argued that the “much
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lower” recommended guideline ranges for other federal false-statement offenses
counseled in favor of a downward variance in his case. Having heard these
arguments, the court sentenced Spells to 48-months imprisonment, a slight
downward variance from his recommended guideline range. Spells timely
appealed.
II.
We review de novo whether the district court applied the correct sentencing
guideline to a defendant’s underlying conduct. United States v. Belfast,
611 F.3d
783, 823 (11th Cir. 2010). We review for abuse of discretion whether the district
court arrived at an unreasonable sentence after weighing the sentencing factors set
out in
18 U.S.C. § 3553(a). See United States v. Irey,
612 F.3d 1160, 1188–89
(11th Cir. 2010) (en banc).
III.
A.
First, Spells says his base offense level should not have been calculated
under Guideline § 2K2.1, which deals with “Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition[ and] Prohibited Transactions
Involving Firearms or Ammunition.” He argues that applying Guideline § 2K2.1
to his case results in great disparity between his sentence and the sentences of other
defendants convicted of making a false statement. Spells cites the Sentencing
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Guidelines’ base offense levels for defendants convicted of making false
statements in immigration and citizenship applications, bankruptcy proceedings,
passport applications, and testimony given under oath, among others.
The district court correctly calculated Spells’s base offense level under
Guideline § 2K2.1. District courts must determine the Guidelines provision that
applies to a given offense using the Statutory Index at Appendix A of the
Guidelines Manual. See USSG §§ 1B1.1(a)(1), 1B1.2(a). The Statutory Index
states that the appropriate Guidelines provision for
18 U.S.C. § 924(a) is § 2K2.1.
See USSG App. A. Spells pled guilty to violating
18 U.S.C. § 924(a)(1)(A), and
thus his guideline range was appropriately calculated using § 2K2.1. See Belfast,
611 F.3d at 824–25 (affirming application of a Guidelines provision listed with the
defendant’s offense of conviction in the Statutory Index).
B.
Next, Spells asserts that the district court improperly weighed the
18 U.S.C.
§ 3553(a) sentencing factors. He says the district court did not properly consider
sentencing disparities between himself and defendants convicted of making false
statements on other types of applications. We reject his argument because the
record shows that the district court compared Spells’s sentence to the sentences of
similarly situated defendants in order to avoid disparity.
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Spells is correct that district courts are required “to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” United States v. Docampo,
573 F.3d 1091, 1101 (11th
Cir. 2009) (quoting
18 U.S.C. § 3553(a)(6)). But “[a] well-founded claim of
disparity . . . assumes that apples are being compared to apples.”
Id. (quotation
marks omitted). Spells, who made false statements in order to get a firearm, was
not similarly situated to defendants who have made false statements about
citizenship or bankruptcy. See United States v. Jayyousi,
657 F.3d 1085, 1118
(11th Cir. 2011) (explaining that district courts “should not draw comparisons to
cases involving defendants who were convicted of less serious offenses” when
assessing potential sentencing disparities).
Beyond this, the district court entertained and rejected Spells’s argument that
he was similarly situated to defendants convicted of different offenses. Spells
argued at sentencing that his base offense level was too high because it was
calculated under Guideline § 2K2.1, the firearm offenses guideline. He asserted
“the sentencing commission put [his offense] in with the firearms offenses” and
“that’s what drives the offense level so high.” He offered that “there are other
offenses . . . [like] a false statement to a passport” or “lying to a federal agent
[where] the guideline’s much lower.” He reminded the court that he “lied on a
form” and “merely gave [the pawn shop] $10 and filled out the form.” On this
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basis, he asked the district court for a downward variance and to sentence him to
the least amount of time possible. The district court considered this request.
The court then pronounced Spells’s sentence. The court expressly compared
Spells to other defendants with similar criminal history and offenses of conviction.
The court rejected a comparison to one defendant who received a five-month
sentence, because “th[at] defendant did not have the criminal history” that Spells
did. The court was more persuaded by a different case, in which a defendant with
a criminal history category of V received a sentence of 30-months incarceration for
similar conduct. The court ultimately concluded that Spells should not receive a
30-month sentence because he had waited until “the eve of trial” to plead guilty,
unlike the other defendant. This consideration was proper. Cf. Docampo,
573
F.3d at 1101 (“We have held that defendants who cooperate with the government
and enter a written plea agreement are not similarly situated to a defendant who . . .
proceeds to trial.”).
In addition to comparing Spells’s case to similarly situated cases, the court
also considered the “troubling” nature of Spells’s offense in light of his criminal
history, including his “problem[s] with anger control and particularly domestic
violence.” See
18 U.S.C. § 3553(a)(1) (directing courts to consider “the nature and
circumstances of the offense and the history and characteristics of the defendant”).
And the court expressed that “[t]he sentence I impose should promote respect for
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the law and should serve to deter you as well as others.” See
id. § 3553(a)(2)(A),
(B) (listing “respect for the law” and “adequate deterrence” as sentencing factors).
The court then imposed a sentence nine months below the recommended guideline
range. In light of the district court’s thorough discussion, it is clear the court
reasonably weighed the § 3553(a) sentencing factors. We therefore affirm Spells’s
48-month sentence.
AFFIRMED.
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