[DO NOT PUBLISH]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. Sp ecial, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( October 30, 2020 ) B efore WILSON, JILL PRYOR and BRASHER, Circuit Judges.
PER CURIAM:

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 1 of 172 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 fentany l 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 determini ng 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 Nor th Fort Myers, Florida. For at least 497 days, T homas 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 exch ange 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 173 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 the se two search es , 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 di stributing 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

- relat ed crimes in a 17

- count indictment. Thomas was charged with two
counts: c onspiracy 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 investi gation 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 174 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 49 7 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 two

level 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 three

level reduction for acceptance of responsibility, yielding a total offense level of 37. The PSR determined that Thomas had a criminal history score of f ive, resulting in a criminal history category of III. As relevant to this appeal, t he 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 violenc e 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 mon ths’ imprisonment.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 4 of 175 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
h ad 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, the re 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 hav e 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 176 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 conv icted 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 g uidelines calculation. The district court found that Thomas was res ponsible for the drug quantity calculated in the PSR. T he 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 reasona bly 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. Th e 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 177 were numerous incidents where Thomas was at the Big House while guns were displayed

. The district court also overrul ed Thomas’s objection to his criminal history score calculation. The court stated that the Guidelines and this Court’s precedent indicated criminal history point s w ere warranted for convictions resulting only in a fine. As to Thomas’s argument that his c onviction 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, t his time arguing that
a 1 80

- 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 d ecision 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 178 advisory guideline range, and the sentencing memoranda. The court considered the § 3553(a) factors and weigh ed 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

- guideline s 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 hi m 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 quantit ies

. Thus , he claims , his base off ense level of 36 was not supported by sufficient evidence. We disagree.

USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 8 of 179 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 fa ctual 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 erroneou s 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 attributab le 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, counsel ed, 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 foreseeabl e 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 103 2, 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 1710 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 15 0 6.
T he 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. Th us , 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, t he 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 1711 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 attrib utable 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 d efinite and firm conviction that the district court erred in applying the PSR’s drug quantity determination and corresponding base offense leve l

. 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, h e contends that although he engaged in a fight during the exis tence 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 a nd 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 1712 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 tw o - 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 Thom as 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. 6 3 1 at 39. Thomas did not, and does not, dispute that he c onfronted 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 prepo nderance 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 1713 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 i mproperly 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 witho ut 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 s entences 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 c hallenge

. 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 w e 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 cit e § 4A1.3(b)(1). Appellant’s Br. at 16. USCA11 Case: 20-10460 Date Filed: 10/30/2020 Page: 13 of 1714 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 s entences of less than 60 days, probation, fines, and residency in a halfway house. Id. § 4A1.1, cmt

. B ackground. 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. T herefore, 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 1715 D. Reasonableness of the Senten ce 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) (interna l 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
tota lity 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 seri ousness 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 ca re, 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, th e 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 1716 [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 tha t 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 conspirac y 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 1717 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 reasonable ness, 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 circumsta nces 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