[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11995

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

DOUGLAS MOHORN, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:22-cr-60065-AHS-1

____________________

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 1 of 9
2 Opinion of the Court 23-11995

Before ROSENBAUM, GRANT, and BLACK, Circuit Judges.

PER CURIAM:

Douglas Mohorn appeals his 36-month, below Guidelines 

sentence for conspiracy to distribute a controlled substance. He 

asserts the district court erred in sentencing him based on a drug 

quantity of five kilograms of cocaine because he never promised to 

deliver that amount, and ultimately, his co-conspirator only delivered a single kilogram of a substance that contained less than 1% 

cocaine. He contends this error, as well as the court’s failure to 

give more weight to his age and health issues, resulted in the imposition of a procedurally and substantively unreasonable sentence. After review,1 we affirm Mohorn’s sentence.

1 We review factual findings for clear error and the application of the Guidelines to those facts de novo. United States v. Johnson, 980 F.3d 1364, 1374 (11th 

Cir. 2020). The determination of the quantity of cocaine involved in a conspiracy for the purposes of sentencing is a factual determination subject to the 

clearly erroneous standard. United States v. Alston, 895 F.2d 1362, 1369 (11th 

Cir. 1990). 

We review the reasonableness of a sentence under a deferential abuseof-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The party 

challenging the sentence bears the burden of establishing that it is unreasonable based on the facts of the case and the 18 U.S.C. § 3553(a) factors. United 

States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018).

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 2 of 9
23-11995 Opinion of the Court 3

I. QUANTITY

“When a defendant objects to a factual finding that is used 

in calculating his guideline sentence, such as drug amount, the government bears the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Rodriguez, 398 F.3d 

1291, 1296 (11th Cir. 2005). “Under the Sentencing Guidelines, a 

defendant who negotiates a sale of drugs is sentenced based upon 

the negotiated amount,” unless “the district court finds that the defendant did not intend to produce and was not reasonably capable 

of producing that amount,” in which case “the defendant is sentenced to the amount that he or she intended to produce and was 

able to produce.” United States v. Jones, 36 F.3d 1068, 1070 (11th Cir. 

1994) (citing U.S.S.G. § 2D1.1, comment (n.12) (Nov. 1993)). 2

 In 

Jones, we rejected the defendant’s argument he should have been 

sentenced based on the amount of marijuana he actually delivered 

and affirmed the district court’s sentence that was based on the negotiated amount. Id.

The district court did not clearly err in finding Mohorn’s offense involved five kilograms of cocaine. Mohorn signed a factual 

proffer that stated he spoke with an undercover officer on multiple 

occasions about the sale of cocaine. In an initial phone call, the pair 

2 The relevant comment in the 1993 version of the Sentencing Guidelines has 

since been amended to clarify that it is the defendant’s burden to prove lack of 

intent or ability to produce the negotiated amount of narcotics. (Compare

U.S.S.G. § 2D1.1, comment. (n.12) (Nov. 1993) with id., comment. (n.5) (Nov. 

2021)). 

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 3 of 9
4 Opinion of the Court 23-11995

discussed “kilograms” of cocaine. Additionally, Mohorn did not 

object to PSI paragraph 11, supporting a conclusion that Mohorn 

sought to facilitate the sale of multiple kilograms, as during a police 

interview, Donald Higgs III “indicated Mohorn . . . told Higgs he 

had a buyer for some ‘keys.’” See United States v. Bennett, 472 F.3d 

825, 832 (11th Cir. 2006) (explaining the district court may base its 

findings of fact on undisputed statements in the presentence investigation report (PSI)); United States v. Wade, 458 F.3d 1273, 1277 

(11th Cir. 2006) (stating “failure to object to allegations of fact in a 

PSI admits those facts for sentencing purposes”). And, when the 

officer requested five kilograms in a later phone call, Mohorn 

sought to provide this amount, as he stated he would check on 

availability and call the officer back. When Mohorn called back, he 

had Higgs on the line to facilitate the sale and offered a discount for 

the purchase of five kilograms. Further, as stated in an undisputed 

portion of the PSI, Mohorn admitted to discussing the sale of five 

kilograms of cocaine, and admitted to contacting Higgs because he 

was aware Higgs had access to cocaine. See id.

Mohorn’s assertion he should have been sentenced based on 

the amount of real cocaine involved in his offense, or instead, the 

fake kilogram ultimately sold to the undercover officer, is meritless. Where a defendant is convicted of conspiracy to distribute 

narcotics on the basis of an incomplete, negotiated sale, a defendant is properly sentenced based on the negotiated amount. 

U.S.S.G. § 2D1.1, comment. (n.5) (Nov. 2021); see Jones, 36 F.3d at 

1070.

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 4 of 9
23-11995 Opinion of the Court 5

Next, Mohorn’s argument he never had access to five kilograms of cocaine and he was not reasonably capable of producing 

this amount fails. In United States v. Alston, we rejected the defendant’s argument he was not reasonably capable of producing the negotiated amount of drugs. 895 F.2d 1362, 1370-71 (11th Cir. 1990). 

We reasoned, even though the evidence suggested he only had access to one kilogram, the defendant attempted to arrange the delivery of several more kilograms, and thus, “[t]he district court was 

not clearly erroneous in finding that [he] was reasonably capable of 

producing the negotiated amount.” Id. at 1370-71 (quotation 

marks omitted).

Mohorn’s case is similar to Alston. Because Mohorn’s attempt to acquire the negotiated amount was sufficient for the Government to meet its burden of proving drug quantity by a preponderance of evidence, the district court did not clearly err in determining the burden was met here. See id.

Finally, Mohorn’s reliance on United States v. Jackson, 115 

F.3d 843 (11th Cir. 1997), is misplaced. In Jackson, police officers 

discovered a package of suspected cocaine during a traffic stop. 115 

F.3d at 844. The defendant was charged with substantive drug-related offenses and sentenced based on the weight of the entire package as a “mixture or substance containing a detectable amount of 

cocaine,” despite the package containing 99 percent sugar and just 

1 percent cocaine. Id. at 844-45. The cocaine was not mixed in, but 

rather, it was distributed on the surface to trick a potential buyer if

a sample was requested. Id. at 844-45, 48. We determined “the 

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 5 of 9
6 Opinion of the Court 23-11995

contents of the package was not a mixture” under the Guidelines 

and held “the district court erred in basing Jackson’s sentence upon 

the weight of the entire unmarketable package” because he should 

have been sentenced based on the actual amount of cocaine in the 

package. Id. at 848-49.

In Jackson, the defendant was charged with substantive drug 

crimes, not conspiracy, and thus, the relevant quantity of narcotics 

was that which was actually seized—there was no evidence of a 

conspiracy to sell a larger amount. Jackson, 115 F.3d at 844-45. 

Thus, Jackson’s reasoning as to the marketability of the mixture is 

not applicable here, where there was a conspiracy to sell a specific, 

negotiated quantity of cocaine, and where Mohorn acted in furtherance of providing the negotiated amount.

Despite Mohorn’s lack of immediate access to five kilograms 

of cocaine, Mohorn’s attempts to provide it—in context of his belief that Higgs had access to cocaine, his conversations regarding 

the sale of multiple kilograms, and his offering a discount for five 

kilograms—is sufficient support for the district court’s factual determination. See Alston, 895 F.2d at 1369-70. Accordingly, the district court did not clearly err in determining Mohorn conspired to 

deliver five kilograms of cocaine, and we affirm as to this issue.

II. REASONABLENESS

A. Procedural Reasonableness

In reviewing the reasonableness of a sentence, we first consider whether the district court committed a procedural error. Gall

v. United States, 552 U.S. 38, 51 (2007). A district court commits a 

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 6 of 9
23-11995 Opinion of the Court 7

procedural sentencing error when it imposes a sentence based on 

clearly erroneous facts, fails to calculate or improperly calculates 

the guideline range, fails to consider the § 3553(a) factors, treats the 

Guidelines as mandatory, or fails to explain the chosen sentence. 

Id.

The district court imposed a procedurally reasonable sentence because it did not rely on clearly erroneous facts, fail to 

properly calculate the Guidelines range, fail to consider the 

§ 3553(a) sentencing factors, treat the Guidelines as mandatory, or 

fail to explain its chosen sentence. See id. First, Mohorn’s argument the district court erroneously determined his drug quantity, 

and thus relied on clearly erroneous facts, fails for the reasons discussed above.

Second, the district court did not err in calculating Mohorn’s 

Guidelines range, as it correctly determined his base offense level 

was 30, subtracted 3 levels based on acceptance of responsibility, 

subtracted an additional 2 levels for the safety valve provision, and 

determined the sentencing range for an individual with a criminal 

history category of II and an adjusted offense level of 25 is 63 to 78 

months. U.S.S.G. §§ 2D1.1(a)(5), (b)(18); (c)(5); 3E1.1(a)(b); Ch. 5, 

Pt. A. The district court stated it had considered the § 3553(a) sentencing factors, which is supported by the court’s explanation of its 

chosen sentence due to Mohorn’s criminal history, despite his mitigating arguments regarding his health. See Gall, 552 U.S. at 51. 

Further, the court stated the Sentencing Guidelines are advisory, 

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 7 of 9
8 Opinion of the Court 23-11995

and did not treat them as mandatory. See id. Accordingly, Mohorn’s sentence was not procedurally unreasonable.

B. Substantive Reasonableness

After ensuring that a sentence is procedurally sound, we

then consider the substantive reasonableness of a sentence. Id.

The district court must impose a sentence that is “sufficient, but 

not greater than necessary” to reflect the seriousness of the offense, 

promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant 

with any needed correctional treatment or training. 18 U.S.C. 

§ 3553(a)(2). It must also consider the nature and circumstances of 

the offense, the defendant’s history and characteristics, the kinds of 

sentences available, the applicable Guidelines range, any pertinent 

policy statements, and the need to avoid sentencing disparities between similarly-situated defendants. Id. § 3553(a)(1), (3)-(7).

The weight given to each factor lies within the district 

court’s sound discretion, and it may reasonably attach great weight 

to a single factor. United States v. Kuhlman, 711 F.3d 1321, 1327 (11th 

Cir. 2013). A district court abuses its discretion if it “(1) fails to afford consideration to relevant factors that were due significant 

weight; (2) gives significant weight to an improper or irrelevant factor; or (3) commits a clear error of judgment in considering the 

proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 

2010) (en banc) (quotation marks omitted). We will vacate a district 

court’s sentence as substantively unreasonable only if “left with the 

definite and firm conviction that the district court committed a 

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 8 of 9
23-11995 Opinion of the Court 9

clear error of judgment in weighing the § 3553(a) factors” as evidenced by a sentence “outside the range of reasonable sentences 

dictated by the facts of the case.” United States v. Goldman, 953 F.3d 

1213, 1222 (11th Cir. 2020) (quotation marks omitted). 

Mohorn’s below-Guidelines sentence was also substantively 

reasonable. The district court’s recognition of Mohorn’s mitigating arguments regarding his health, as well as its concern regarding 

his criminal history, demonstrates appropriate consideration of the 

relevant § 3553(a) factors. These considerations relate to the nature and circumstances of the offense, Mohorn’s history and characteristics, as well as the need to provide just punishment and protect the public. 18 U.S.C. § 3553(a)(1)-(2). Additionally, the court 

acted within its discretion when it gave more weight to certain factors—such as the nature of Mohorn’s offense and his history of 

criminal conduct—than to other factors—such as his history of 

medical issues. See Kuhlman, 711 F.3d at 1327.

Finally, Mohorn’s 36-month term of imprisonment was significantly below the low end of the Guidelines range and the statutory maximum penalty, which further suggests his sentence was 

reasonable. See United States v. Taylor, 997 F.3d 1348, 1355 (11th 

Cir. 2021) (explaining “a sentence imposed well below the statutory maximum penalty is an indicator of a reasonable sentence”). 

Under these circumstances, the sentence imposed was not “outside 

the range of reasonable sentences dictated by the facts of the case.” 

See Goldman, 953 F.3d at 1222. Accordingly, we affirm.

AFFIRMED.

USCA11 Case: 23-11995 Document: 29-1 Date Filed: 04/15/2024 Page: 9 of 9