[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10460

Non-Argument Calendar

________________________

D.C. Docket No. 2:18-cr-00190-SPC-MRM-6

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

WILLIAM THOMAS, 

a.k.a. Special,

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 30, 2020)

Before WILSON, JILL PRYOR and BRASHER, Circuit Judges.

PER CURIAM: 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 1 of 17
2

William Thomas appeals his 293-month sentence, imposed after he pled 

guilty to one count of conspiracy to distribute and possess with intent to distribute 

cocaine base, heroin, and fentanyl and one count of distribution of cocaine base.

Thomas argues that the district court erred in determining the drug quantity for 

which it held him accountable at sentencing, applying a two-level enhancement for 

a credible threat of violence, and determining his criminal history score. Thomas 

also argues that his sentence is substantively unreasonable. After careful review, 

we affirm the district court’s guidelines calculations and Thomas’s 293-month 

sentence.

I. BACKGROUND

A. The Drug-Trafficking Operation

This case arises out of a multi-year investigation into a drug-trafficking 

operation run by one of Thomas’s co-defendants, Tony Wilson, Jr. Wilson, a drug 

supplier, enlisted dealers to distribute drugs from various homes in North Fort 

Myers, Florida. For at least 497 days, Thomas was one of Wilson’s dealers.

Thomas sold drugs from the “Big House,” the organization’s main 

distribution hub. Specifically, Thomas sold 10.43 grams of cocaine base to a 

confidential informant in exchange for $1,150 and was present when another 

dealer sold fentanyl and heroin to an informant. Additionally, during Thomas’s 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 2 of 17
3

involvement in the conspiracy he engaged in a fight with a rival drug dealer 

outside the Big House while in possession of a firearm.

Law enforcement officers executed multiple search warrants on the Big 

House, and Thomas was present for two of the searches. During these two 

searches, officers seized heroin, marijuana, crack cocaine, cocaine base, cash, and 

firearms. Multiple cooperating witnesses confirmed that Thomas was dealing 

drugs for Wilson. Multiple cooperating witnesses also reported that during 

Thomas’s involvement, the organization was distributing at least four 

approximately eight-gram “cookies” of crack cocaine and 200 approximately 

0.1-gram bags of heroin and/or fentanyl per day.

B. Procedural History

A federal grand jury charged Thomas, Wilson, and eight others with various 

drug-related crimes in a 17-count indictment. Thomas was charged with two 

counts: conspiracy to distribute and possess with intent to distribute 28 grams or 

more of cocaine base, 100 grams or more of heroin, and 40 grams or more of 

fentanyl, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846, and 18 U.S.C. § 2 (Count 

One), and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(C) (Count Four). He pled guilty to both counts.

Before sentencing, the probation office prepared a presentence investigation 

report (“PSR”). The PSR grouped both counts per U.S.S.G. § 3D1.2(d) and 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 3 of 17
4

calculated the total quantity of drugs sold during Thomas’s involvement in the 

conspiracy. The PSR determined that Thomas was a dealer in Wilson’s 

organization for at least 497 days and thus was accountable for 15.904 kilograms 

of cocaine base and 9.94 kilograms of heroin. Based on this quantity, Thomas’s 

base offense level was 36. See U.S.S.G. § 2D1.1(c)(2). The PSR applied a twolevel enhancement for possessing a dangerous weapon and another two-level 

enhancement for using violence, making a credible threat to use violence, or 

directing the use of violence because during Thomas’s involvement in the 

conspiracy, he engaged in a fight with a rival drug dealer at the Big House while 

possessing a firearm. See id. § 2D1.1(b)(1), (2). Thomas also received a threelevel reduction for acceptance of responsibility, yielding a total offense level of 37.

The PSR determined that Thomas had a criminal history score of five, 

resulting in a criminal history category of III. As relevant to this appeal, the PSR 

assigned one criminal history point for Thomas’s conviction for possession of 

paraphernalia and one point for his conviction for resisting an officer without 

violence and marijuana possession. See id. § 4A1.1(c). In both cases Thomas pled 

nolo contendere and was fined. Based on his total offense level and criminal 

history category of III, Thomas’s recommended range under the Sentencing 

Guidelines was 262 to 327 months’ imprisonment.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 4 of 17
5

The PSR discussed Thomas’s personal background. Thomas explained that 

his family struggled financially, and he became involved in the instant offense to 

support his family. The PSR also recounted that he had a high school diploma and 

had attended university for two semesters on a football scholarship.

Thomas raised several objections to the PSR. First, he objected that the PSR 

improperly held him responsible for the drug quantity of the entire conspiracy, an 

amount far greater than his participation involved. Second, Thomas objected to the 

enhancement for possessing a firearm in connection with the offense, arguing that 

there was no evidence he possessed a firearm and that, even if he did, there was no 

indication it was used in furtherance of the conspiracy. Third, Thomas objected to 

the use-of-violence enhancement, arguing there was no evidence he made a threat 

or committed an act of violence in furtherance of the conspiracy. Fourth, Thomas 

objected to his criminal history calculation, asserting that he should not have 

received points for the two offenses in which he received only fines as punishment. 

Thomas also argued that his conviction for resisting an officer without violence 

should have been excluded because it was similar to “[h]indering or failure to obey 

a police officer” and “[r]esisting arrest,” offenses excluded from the criminal 

history calculation under U.S.S.G. § 4A1.2(c)(1).

Thomas requested a downward variance pursuant to 18 U.S.C. § 3553(a), 

arguing that given his personal circumstances, a 60-month sentence was 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 5 of 17
6

appropriate. Thomas stated that he had a minimal education and engaged in 

criminal activity to support his family. He noted that before this arrest, he had 

been convicted of only four misdemeanors and had never served a sentence longer 

than 120 days in jail. He asserted that he was not violent and did not have a violent 

history. Thus, Thomas argued, a variance was warranted in his case.

At sentencing, Thomas did not object to the factual accuracy of the PSR, but 

he reiterated his objections. The district court overruled each of Thomas’s 

objections and adopted the PSR’s guidelines calculation.

The district court found that Thomas was responsible for the drug quantity

calculated in the PSR. The court stated that it was making a “particularized” 

finding and that the record and testimony from others involved in the conspiracy 

indicated that the drug quantity set forth in the PSR was reasonably foreseeable to 

Thomas. Doc. 631 at 19.1

 Thomas withdrew his objection to the firearm 

enhancement but restated his objection to the use-of-violence enhancement, 

arguing that applying both enhancements for the same underlying conduct was 

improper “double-dipping.” Id. at 21. The district court disagreed, concluding that 

the Guidelines contemplated applying the enhancements cumulatively. The court

concluded that the use-of-violence enhancement was appropriate after noting that 

Thomas had confronted a rival drug dealer while holding a firearm and that there 

1 “Doc.” numbers refer to the district court’s docket entries.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 6 of 17
7

were numerous incidents where Thomas was at the Big House while guns were 

displayed.

The district court also overruled Thomas’s objection to his criminal history 

score calculation. The court stated that the Guidelines and this Court’s precedent 

indicated criminal history points were warranted for convictions resulting only in a 

fine. As to Thomas’s argument that his conviction for resisting an officer should 

have been excluded, the court noted that Thomas also pled guilty at that time to 

possession of marijuana, which is not an excluded offense under the Guidelines.

Thomas renewed his request for a downward variance, this time arguing that

a 180-month sentence was appropriate given his personal circumstances and the 18 

U.S.C. § 3553(a) factors. The government requested a 327-month sentence,

emphasizing Thomas’s violent conduct and asserting that Thomas acted as if he 

were “untouchable”—he continued working for the conspiracy after search 

warrants were executed on the Big House and after he had opportunities to 

withdraw. Doc. 631 at 58. The government asserted that Thomas was a danger to 

the public and a severe punishment was needed to deter similar criminal conduct.

Before imposing a sentence, the district court acknowledged the potential 

risk for sentencing disparities between codefendants in this case and explained that 

it had reached a decision after “careful consideration of many factors.” Id. at 65. 

The court noted that it had reviewed Thomas’s PSR, his codefendants’ PSRs, the 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 7 of 17
8

advisory guideline range, and the sentencing memoranda. The court considered 

the § 3553(a) factors and weighed Thomas’s limited criminal history against the 

serious nature of the offense and the need to provide just punishment, deter similar 

criminal conduct, and protect the public from Thomas’s future crimes.

After weighing the factors, the court imposed a within-guidelines sentence 

of 293 months’ imprisonment with five years of supervised release. This is 

Thomas’s appeal.

II. DISCUSSION

On appeal, Thomas argues that the district court erred in: (1) determining 

the drug quantity for which it held him accountable, (2) applying a two-level 

enhancement for use of violence, (3) determining his criminal history score, and 

(4) imposing a substantively unreasonable sentence. We consider these arguments 

in turn.

A. Drug Quantity Determination

Thomas argues that the district court erred in applying the PSR’s drug 

quantity calculation—15.904 kilograms of cocaine base and 9.94 kilograms of 

heroin—because there was no evidence in the record to support those quantities.

Thus, he claims, his base offense level of 36 was not supported by sufficient 

evidence. We disagree.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 8 of 17
9

We review a district court’s determination of the drug quantity attributable 

to a defendant for clear error.2

 United States v. Almedina, 686 F.3d 1312, 1315 

(11th Cir. 2012). “A factual finding is clearly erroneous when, upon review of the 

evidence, we are left with a definite and firm conviction a mistake has been made.” 

United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). A factual finding 

cannot be clearly erroneous when the factfinder is choosing between two 

permissible views of the evidence. United States v. Saingerard, 621 F.3d 1341, 

1343 (11th Cir. 2010).

The base offense level for a drug conviction is calculated by determining the 

quantity of drugs attributable to a defendant. U.S.S.G. § 2D1.1(a)(5); see United 

States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). When making this 

determination, a court must consider all relevant conduct, including “all acts and 

omissions committed, aided, abetted, counseled, commanded, induced, procured, 

or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). Thus, the 

defendant is accountable for all drug quantities with which he was directly 

involved and, in the case of a conspiracy, all reasonably foreseeable drug quantities 

2 The government argues that we should review Thomas’s challenge to the drug quantity 

attributed to him for plain error because he raises a new legal argument in support of this 

objection for the first time on appeal. United States v. Corbett, 921 F.3d 1032, 1035 (11th Cir. 

2019) (reviewing for plain error a new legal argument supporting an objection that was raised in 

the district court). We need not resolve the question of the proper standard of review, however, 

because we would affirm the district court’s sentencing decision even under the more favorable 

clear error standard.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 9 of 17
10

that were within the scope of the conspiracy. Id. § 1B1.3(a)(1)(B), cmt. n.3. 

Where there is no drug seizure, or the amount seized does not reflect the scale of 

the offense, the district court must approximate the drug quantity. Id. § 2D1.1, 

cmt. n.5; Frazier, 89 F.3d at 1506. Although the court’s approximation may not be 

merely speculative, it may be based on a “fair, accurate, and conservative 

estimate[]” of the drug quantity. United States v. Zapata, 139 F.3d 1355, 1359 

(11th Cir. 1998). For instance, a court may base its approximation on evidence 

showing the average frequency and quantity of a defendant’s drug sales over a 

given period. Frazier, 89 F.3d at 1506.

The district court did not clearly err in holding Thomas accountable for the 

drug quantity calculated in the PSR. As an initial matter, Thomas did not dispute 

the PSR’s findings regarding the specific drug transactions he was involved in or 

the conspiracy’s daily distribution amounts. Thus, the sentencing court may rely 

upon these facts even without supporting evidence. United States v. Beckles, 

565 F.3d 832, 844 (11th Cir. 2009). Here, the court relied on the PSR as well as 

testimony from others involved in the conspiracy in making a “particularized” 

determination regarding Thomas’s attributable drug quantity. Doc. 631 at 19. The 

court stated that Thomas was part of the conspiracy for 497 days with at least 17 

other individuals; further, he distributed drugs from the Big House where search

warrants led to the discovery of large quantities of drugs and firearms. The court 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 10 of 17
11

considered testimony regarding the daily quantity of drugs sold from the Big 

House and noted that a “conservative estimate” was used in determining the 

amount attributable to Thomas. Id. at 20. On this basis, the court found the drug 

quantity set forth in the PSR was reasonably foreseeable to him. Given the 

evidence related to the length and extent of Thomas’s involvement in the 

conspiracy, we are not left with a definite and firm conviction that the district court 

erred in applying the PSR’s drug quantity determination and corresponding base 

offense level.

B. Use-of-Violence Enhancement

Thomas argues that the district court erred in applying the use-of-violence 

enhancement where there was no evidence that he made any threats of violence. 

See U.S.S.G. § 2D1.1(b)(2). Further, he contends that although he engaged in a 

fight during the existence of the conspiracy, this fact does not mean the fight was 

in furtherance of the conspiracy. We reject his arguments.

In evaluating a district court’s imposition of an offense level enhancement, 

we review the court’s findings of fact for clear error and its application of the 

Sentencing Guidelines de novo. United States v. Rendon, 354 F.3d 1320, 1329 

(11th Cir. 2003). Although clear error review is deferential, “a finding of fact must 

be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322, 

1330 (11th Cir. 2007). “When the government seeks to apply an enhancement 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 11 of 17
12

under the Sentencing Guidelines over a defendant’s factual objection, it has the 

burden of introducing sufficient and reliable evidence to prove the necessary facts

by a preponderance of the evidence.” United States v. Washington, 714 F.3d 1358, 

1361 (11th Cir. 2013) (internal quotation marks omitted). 

The Guidelines provide that a two-level enhancement applies “[i]f the 

defendant used violence, made a credible threat to use violence, or directed the use 

of violence.” U.S.S.G. § 2D1.1(b)(2). If the defendant “merely possessed a 

dangerous weapon but did not use violence, make a credible threat to use violence, 

or direct the use of violence,” then the two-level enhancement does not apply. Id.

§ 2D1.1, cmt. n.11(B).

Here, the government introduced “sufficient and reliable evidence” to 

support the § 2D1.1(b)(2) enhancement. Washington, 714 F.3d at 1361. At 

sentencing, the government established that Thomas and others engaged in an 

altercation with a rival drug dealer, Donald Wynn, outside the Big House. During 

the altercation, Thomas was carrying what appeared to be “an AR platform rifle.” 

Doc. 631 at 39. Thomas did not, and does not, dispute that he confronted Wynn 

while carrying a firearm. Although there is no evidence that Thomas used violence 

or directed others to use violence, as the district court noted, this “show of force” 

was sufficient to establish a credible threat to use violence by a preponderance of 

the evidence. Id. at 43; see U.S.S.G § 2D1.1(b)(2); Washington, 714 F.3d at 1361. 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 12 of 17
13

We therefore conclude the court did not clearly err in enhancing Thomas’s base 

offense level under U.S.S.G. § 2D1.1(b)(2).

C. Criminal History Score

Thomas argues that the district court improperly assigned him criminal 

history points for two prior convictions in which he was only fined, not sentenced 

to a term of imprisonment or probation.3

 He also asserts that his conviction for 

resisting an officer without violence should be excluded because it is similar to 

“[h]indering or failure to obey a police officer” and “[r]esisting arrest,” offenses 

excluded from the criminal history calculation under U.S.S.G. § 4A1.2(c)(1). 

Again, we disagree.

We review de novo a district court’s interpretation and application of the 

Guidelines. Rendon, 354 F.3d at 1329. The Guidelines assign three criminal 

history points for a defendant’s prior sentences of imprisonment exceeding one

year and one month, two points for prior sentences of imprisonment between 60 

3 The government notes that to the extent Thomas challenges the district court’s denial of 

a downward departure from his criminal history category, this Court lacks jurisdiction to 

consider his challenge. A district court may depart downward from the defendant’s criminal 

history category if “reliable information indicates that [it] substantially over-represents the 

seriousness of the defendant’s criminal history.” U.S.S.G. § 4A1.3(b)(1). We lack jurisdiction 

to review the court’s decision not to apply a downward departure under § 4A1.3(b)(1). See 

United States v. Winingear, 422 F.3d 1241, 1245–46 (11th Cir. 2005). But we read Thomas’s 

brief as contesting the court’s calculation of his score, not the court’s discretionary decision not 

to depart from his criminal history category. Indeed, Thomas argues that the district court

improperly “comput[ed]” his criminal history score and does not cite § 4A1.3(b)(1). Appellant’s 

Br. at 16.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 13 of 17
14

days and one year and one month, and one point for each prior sentence not 

counted in either of those instances. U.S.S.G. § 4A1.1(a)–(c). A “prior sentence” 

means “any sentence previously imposed upon adjudication of guilt, whether by 

guilty plea, trial, or plea of nolo contendere.” Id. § 4A1.2(a)(1). Prior sentences 

warranting one criminal history point under § 4A1.1(c) include sentences of less 

than 60 days, probation, fines, and residency in a halfway house. Id. § 4A1.1, cmt. 

Background. Unless explicitly excluded, sentences for felonies, misdemeanors, 

and petty offenses are included in the criminal history score calculation. Id.

§ 4A1.2(c).

The district court properly calculated Thomas’s criminal history score. We 

have held that a prior conviction resulting in only a monetary penalty counts as a 

prior sentence under § 4A1.1(c). See United States v. Acuna-Reyna, 677 F.3d 

1282, 1285–86 (11th Cir. 2012) (affirming the assessment of one point for 

defendant’s conviction resulting in a fine). Thus, as the court stated, Thomas’s 

argument is foreclosed by our precedent. Further, neither of Thomas’s challenged 

convictions is excluded from the criminal history score calculation. See U.S.S.G. 

§ 4A1.2(c)(1). Although Thomas’s conviction for resisting an officer without 

violence does not count toward the score, he pled guilty to possession of marijuana 

in the same conviction, which does. See id. Therefore, the district court did not err 

in assessing Thomas criminal history points for his two contested convictions.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 14 of 17
15

D. Reasonableness of the Sentence

Finally, Thomas challenges the substantive reasonableness of his sentence. 

We review the substantive reasonableness of a sentence under a deferential abuse 

of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district 

court abuses its discretion when 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) (internal quotation marks omitted). The party challenging the sentence bears 

the burden of showing it is unreasonable. See United States v. Tome, 611 F.3d. 

1371, 1378 (11th Cir. 2010).

When reviewing a sentence for substantive reasonableness, we examine the 

totality of the circumstances, including “whether the statutory factors in § 3553(a)

support the sentence in question.”4

 United States v. Gonzalez, 550 F.3d 1319, 

1324 (11th Cir. 2008). We will not “second guess the weight (or lack thereof) that 

4 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not 

greater than necessary, to comply with the purposes” of the statute. These purposes include the 

need to: reflect the seriousness of the offense; promote respect for the law; provide just 

punishment; deter criminal conduct; protect the public from the defendant’s future criminal 

conduct; and effectively provide the defendant with educational or vocational training, medical 

care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the 

nature and circumstances of the offense, the history and characteristics of the defendant, the 

kinds of sentences available, the applicable guidelines range, the pertinent policy statements of 

the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need 

to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 15 of 17
16

[a district court] accorded to a given 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) (internal quotation marks omitted). We 

may vacate a sentence only if we firmly believe that the district court “committed a 

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence 

that lies outside the range of reasonable sentences dictated by the facts of the case.” 

Irey, 612 F.3d at 1190 (internal quotation marks omitted). “Although we do not 

automatically presume a sentence within the guidelines range is reasonable, we 

ordinarily expect a sentence within the [g]uidelines range to be reasonable.” 

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration adopted) 

(internal quotation marks omitted). A sentence well below the statutory maximum 

penalty is another indicator of reasonableness. See Gonzalez, 550 F.3d at 1324 

(holding that the sentence was reasonable in part because it was well below the 

statutory maximum).

Thomas argues that the district court’s sentence was “unwarranted and 

draconian” given his limited, non-violent criminal history and because he engaged 

in the conspiracy to further his drug addiction and support his family. Appellant’s 

Br. at 19. The court explicitly considered the 18 U.S.C. § 3553(a) factors, 

including Thomas’s minimal criminal history, before reaching its sentencing 

decision. The court acknowledged that Thomas had been convicted of only 

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 16 of 17
17

misdemeanors but ultimately it gave more weight to other factors, including the 

serious nature of the offense; the impact of the conspiracy on the community; and 

the need to promote respect for the law, to provide just punishment for Thomas’s 

offense, to deter similar conduct, and to protect the public from Thomas’s future 

criminal conduct. The district court’s decision to give greater weight to these 

aggravating factors was not an abuse of discretion. See United States v. Clay, 

483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded any given 

§ 3553(a) factor is a matter committed to the sound discretion of the district court.” 

(internal quotation marks omitted)). And Thomas’s sentence was within the 

guidelines range and well below the 480-month statutory maximum, see 21 U.S.C. 

§ 841(b)(1)(B), which supports a finding of reasonableness, see Gonzalez, 

550 F.3d at 1324.

We cannot conclude from this record that the district court abused its 

discretion in imposing a 293-month sentence, as the sentence was within the range 

of reasonable sentences in light of Thomas’s personal circumstances and the 

serious nature of his offense.

III. CONCLUSION

For these reasons, we affirm Thomas’s sentence.

AFFIRMED.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 17 of 17