United States v. Ontarian Green

Case: 16-17486 Date Filed: 11/02/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17486
Non-Argument Calendar
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D.C. Docket No. 5:15-cr-00003-LJA-CHW-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONTARIAN GREEN,
a.k.a. Shenard,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(November 2, 2017)
Before WILLIAM PRYOR, NEWSOM and FAY, Circuit Judges.
PER CURIAM:
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Ontarion Green appeals his sentence of 45 months of imprisonment
following his plea of guilty to conspiring to distribute cocaine. 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(C). Green challenges as procedurally unreasonable the
addition of two points to his criminal history score for committing his offense
while serving a criminal justice sentence. See United States Sentencing § 4A1.1(d)
(Nov. 2015). Green also challenges as substantively unreasonable his sentence to a
term 12 months above his advisory guideline range. Because the district court
correctly decided that Green’s plea of guilty provided the factual basis to increase
his criminal history score and reasonably determined that Green’s conduct and
demeanor warranted an upward variance, we affirm.
Green’s sentence is procedurally reasonable. A defendant is subject to an
increase of his criminal history score if he “committed the instant offense while
under any criminal justice sentence, including probation . . . .” Id. Green pleaded
guilty and admitted to the facts in his superseding information that he “unlawfully
and knowingly conspire[d] to distribute . . . cocaine . . . from on or about January
1, 2011, to on or about August 31, 2014.” See Moore v. United States, 425 F.2d
1290, 1291 (5th Cir. 1970) (“A plea of guilty knowingly and understandingly made
is an admission of all facts alleged in the . . . information . . . .”). And Green
acknowledged during his change of plea hearing that he committed the offense
“between January 1st, 2011, and August 21st, 2014.” As the district court stated
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during sentencing, Green’s “guilty plea” established “that he was engaged in the
conspiracy” while completing a sentence to 10 years of probation for selling
cocaine, which began on February 17, 2003, and ended on February 17, 2013.
Green argues that his specific admission to calling his coconspirators in April 2013
“limited [his] involvement” in the conspiracy, but Green “cannot . . . ignore the
plain wording of the [information],” which “on its face” establishes the duration of
his crime, see United States v. Helmich, 704 F.2d 547, 548 (11th Cir. 1983)
(rejecting argument that prosecution was barred by the statute of limitation because
“the indictment on its face [did not] show[] that the limitations period had
expired”). Because Green participated in the conspiracy while “under a[] criminal
justice sentence . . . [of] probation,” the district court correctly added two points to
his criminal history score. See U.S.S.G. § 4A1.1(d).
Green’s sentence of 45 months is substantively reasonable. While on
probation for selling cocaine, Green conspired to distribute between 100 and 200
grams of the same illegal substance. With an offense level of 16 and a criminal
history of III, Green faced an advisory sentencing range of 27 to 33 months of
imprisonment. But the district court reasonably determined to “vary upward from
the guidelines and . . . [impose] an additional 12 months of incarceration” based on
Green’s “behavior during [sentencing], . . . his history and characteristics, . . . [and]
the need to promote respect for the law.” See 18 U.S.C. § 3553(a). As the district
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court stated, Green exhibited a disrespect for authority by reoffending, by
“smirk[ing]” at the judge, and by falsely testifying that he joined the conspiracy in
April 2013, and he exhibited an indifference to his community by perpetuating its
drug problems and blaming it for his crimes. We cannot say that the district court
abused its discretion by sentencing Green to a term that is far below his maximum
statutory sentence of 20 years of imprisonment. See United States v. Croteau, 819
F.3d 1293, 1310 (11th Cir.), cert. denied, 137 S. Ct. 254 (2016).
We AFFIRM Green’s sentence.
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