[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-10027

Non-Argument Calendar

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D.C. Docket No. 4:13-cr-00133-BAE-GRS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEFFERY STEPHEN BARNES,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

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(July 2, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM: 

Jeffery Barnes appeals his 42-month sentence for distribution of cocaine 

hydrochloride. After review of the record and the parties’ briefs, we affirm.

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I

Because we write for the parties, we assume familiarity with the underlying 

facts of the case and recite only what is necessary to resolve this appeal.

Following three cocaine sales transactions with undercover agents of the 

Bureau of Alcohol, Tobacco, Firearms, and Explosives, Mr. Barnes was charged 

with and ultimately pled guilty to distribution of cocaine hydrochloride, in 

violation of 21 U.S.C. §§ 841(a)(1). Mr. Barnes acknowledges that the presentence investigation report correctly assigned to him a criminal history category 

of III and a total offense level of 12, which carried with it an advisory guidelines 

range of 15 to 21 months’ imprisonment. The report’s criminal history 

classification took into account prior convictions for sale of crack cocaine and 

possession of a firearm by a convicted felon, but did not reflect five older 

convictions, including those for possession of marijuana and distribution of 

cocaine. Observing that, among other things, Mr. Barnes’ criminal history 

classification understated the seriousness of his criminal record, and his conviction 

for distribution of cocaine would have qualified him as a career offender, the 

probation officer who prepared the report recommended a sentence of 60 months’ 

imprisonment.

At sentencing, the district court expressed concern that Mr. Barnes’ criminal 

history classification did not adequately reflect the extent of his criminal record, 

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and that the prior sentences had done little to deter Mr. Barnes from engaging in 

criminal conduct. Observing that "during the majority of [his] adult life he has 

remained incarcerated or on some form of supervision," and that he "narrowly 

escape[d] being termed a career offender" with an advisory guidelines range of 151 

to 188 months’ imprisonment, the district court imposed a sentence of 42 months’ 

imprisonment followed by five years’ supervised release.

On appeal, Mr. Barnes argues that his sentence is substantively unreasonable 

because his advisory guidelines calculation adequately took into account his 

criminal history, and because the district court disregarded or gave too little weight 

to the fact that he promptly accepted responsibility, the fact that his crime was 

devoid of facts which would have resulted in enhancements under the Sentencing

Guidelines, and the fact that the government conceded that he was non-violent.

II

We review the substantive reasonableness of a sentence for abuse of 

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). This standard 

applies “[r]egardless of whether the sentence imposed is inside or outside the 

Guidelines range.” Id. Even if the district court's sentence is more severe or more 

lenient than the sentence we would have imposed, we will only reverse if we are 

“left with the definite and firm conviction that the district court committed a clear 

error of judgment in weighing the [18 U.S.C.] § 3553(a) factors by arriving at a 

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sentence that lies outside the range of reasonable sentences dictated by the facts of 

the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) 

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). “In 

reviewing the reasonableness of a sentence, we must, as the Supreme Court has 

instructed us, consider the totality of the facts and circumstances.” Id. at 1189.

III

Mr. Barnes principally challenges the substantive reasonableness of his 

sentence on the grounds that his advisory guidelines range sufficiently reflected his 

criminal history, and that the district court abused its discretion by not taking into 

account his early acceptance of responsibility, his nonviolent nature, and the lack 

of enhancements applicable to his crime. We are not persuaded.

Contrary to Mr. Barnes’ argument, the district court is not limited to 

considering conduct used to calculate a defendant's advisory guidelines range in 

deciding whether to impose a sentence based on a variance. Indeed, 18 U.S.C. § 

3553(a) requires the district court to take into account the defendant's “history and 

characteristics,” which implicitly encompasses criminal history not already 

accounted for in the advisory guidelines calculations. See also United States v. 

Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010) (holding that a district court need 

not impose an enhancement before granting a variance). The district court 

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therefore permissibly considered crimes that were not taken into account in 

determining Mr. Barnes’ advisory guidelines range.

Nor did the district court’s purported failure to take into account Mr. Barnes’ 

mitigating factors render its sentence substantively unreasonable. The fact that the 

district court did not explicitly reference these factors on the record in imposing its 

sentence does not indicate that it “erroneously ‘ignored’ or failed to consider this 

evidence in determining [Mr. Barnes’] sentence.” United States v. Amedeo, 487 

F.3d 823, 833 (11th Cir. 2007). Mr. Barnes’ sentence falls well below the 60 

months’ imprisonment recommended by the probation officer, and is likewise 198 

months below the 240-month statutory maximum, strongly suggesting that the 

district court did consider mitigating evidence in arriving at its sentence. See 

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (citing the fact 

that sentence fell below statutory maximum as an indicator that sentence was 

reasonable).

Under the totality of the circumstances, we cannot say that the district court 

committed a clear error of judgment and imposed a sentence outside the range of 

reasonable sentences.

IV

Mr. Barnes’ 42-month sentence is affirmed. 

AFFIRMED.

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