[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 15961 Non

- Argument Calendar

________________________ D.C. Docket No. 1:12

- cr - 00200

- AT

- JFK

- 3

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MOSEZELL KELLY, a.k.a. Zip, a.k.a. Zig, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (September 23, 2014) Before WILSON , ROSENBAUM, and FA Y , Circuit Judges. PER CURIAM:

Case: 13-15961 Date Filed: 09/23/2014 Page: 1 of 82 Mosezell Kelly challenges the substantive reasonableness of his 60

- month imprisonment sentence for aiding and abetting the dealin g of firearms without a license . We affirm. I. BACKGROUND B eginning in October 2011, the Bureau of Alcohol, Tobacco, Firearms , and Explosive s and the Atlanta Police Department (“APD”) operat ed an undercover warehouse in Atlanta, Georgia. During the undercover operation, Kelly and his co

defendants , aided and abetted by each other and others i n the business of dealing in firearms without a license, sold firearms to undercover APD officers. From January 18, 2012 , through June 26, 2012, the defendants sold approximately 37 firearms and ammunition to undercover officers. Kelly, while under indi ctment for
a state burglary offense , directly sold firearms to an undercover officer and was present during the sale of other firearms to the undercover officer. The undercover officer informed Kelly that the officer had a felony conviction. In July 2012, a federal grand jury returned an 11

- count superseding indictment against Kelly and 6 other defendants. The indictment charged Kelly with aiding and abetting the dealing of firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 2 ( “Count 1”), and possessing a firearm while under indictment for burglary in state court, in violation of 18 U.S.C. §§ 922(n) and

Case: 13-15961 Date Filed: 09/23/2014 Page: 2 of 83 924(a)(1)(D) (“Count 4”). Kelly pled guilty to both counts without a plea agreement. Kelly had a total offense level of 2 5 , which included a four

- level enhancement , pursuant to U.S.S.G. § 2K2.1(b)(5) , for traffick ing in firearms based on Kelly’s belief he was selling firearms to a convicted felon for shipment to California. Kelly had a criminal history category of IV. H is o ffense level of 25 and criminal history category of IV resulted in an advisory Sentencing G uideline s range of 84 to 105 months of imprisonment. The statutory maximum sentence that could be imposed was 60 months of imprisonment on each count, to run

consec utively , for a total of 120 months. Kelly objected to his four

- level enhancement under § 2K2.1(b)(5 ) for trafficking in firearms and the lack of a minor

- role reduction under § 3B1.1. At sentencing, t he government informed the district judge the superseding indictment had identified the firea rm in Count 4 incorrectly, and it was dismissing Count 4. Kelly needed to be sentenced only for his conviction on Count 1. 1
Because of the dismissal of Count 4, the G uideline s range became the statutory maxi mum, 60 months of imprisonment , below the advisory G uideline s range of 84 to 105 months of imprisonment

.

1 The dismissal of Count 4 did not affect the Guidelines calculations. Case: 13-15961 Date Filed: 09/23/2014 Page: 3 of 84 Kelly argued against the four

- level trafficking enhancement under § 2K2.1(b)(5) and asserted the government had included fictitious facts in the undercover operation for the express purpose of in creasing his offense level and Guideline s - imprisonment range. He further argued the government had targeted a low

- income, African

- American neighborhood during the sting operation. He specifically req uested a 36

- month

- imprisonment sentence , below the 60

- month statutory maximum

. He presented several arguments in mitigation, including the physical and emotional trauma he had suffered in high school from a shooting incident, which had ended his basketball career, and his mother’s battle with

cancer. The district judge recognized K elly’s concern about the four

- level trafficking enhancement and asked the government : [H] as the sentence been jacked up by allowing things to go on longer, adding more twists to the scenario, and unfairly basically putting these defendants in a position wh ere they’re facing much larger sentences because of all the fictitious turns? R. at 1823

- 24 . The government responded in the negative and argued the defendants’ criminal histories, rather than offense

- specific enhancements, had increased the sentencing r anges. The government requested the statutory maximum sentence, based upon the seriousness of the offense and Kelly’s extensive criminal history.

Case: 13-15961 Date Filed: 09/23/2014 Page: 4 of 85 The district judge overruled Kelly’s objections and sentenced him to 60 months of imprisonment, the statuto ry maximum. The judge stated she would l ike
to see Kelly reunited with his fa mily. Nevertheless, sh e recognized that Kelly had engaged in very serious, reckless conduct in selling firearms. S he was concern ed by Kelly’s conduct, particularly when he had suffered from gunshot wounds . The judge also noted Kelly was fortunate that the superseding indictment contained an erroneous charge, because the dismissal of that charge had limited the sentence the judge could impose. T he district judge found a 60

- month sentence was reaso nable under the circum stances and r ecognized both the seriousness of the offense and the disorder of Kelly’s life caused by the shooting incident. Sh e further stated Kelly had been given enough opportunities to change hi s behavior. On appeal, Kelly argues his 60

- month imprisonment sentence is substantively unreasonable because the district judge failed to consider the manipulative role the government played in h is crime. He further contends the judge should have plac ed greater weight on the hardships he had suffered as a result of being robbed and shot when he was in high school. II. DISCUSSION We review the reasonableness of a sentence under a deferential abuse

- of

discretion standard. Gall v. United States , 552 U .S. 38, 41, 128 S. Ct. 586, 591 (2007). We examine whether a sentence is substantively reasonable in light of the

Case: 13-15961 Date Filed: 09/23/2014 Page: 5 of 86 totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Id. at 51, 128 S. Ct. at 597. 2 The § 3553(a) factors to be considered include (1) the nature and circumstances of the crim e and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the crime , to promote respect for the l aw, and to provide just punishment for the crim e; (3) the need to protect the public from further crimes of the defendant; and (4) the applicable G uideline s range. 18 U.S.C. § 3553(a). A sentence is substantively unreasonable if it does not achieve the purposes of sentencing stated in § 3553(a). United States v. Pugh , 515 F.3d 1179, 1191 (11th Cir. 2008). In addition, a sentence may be substantively unreasonable if a district judge unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence on impermissible factors. Id. at 1191

- 92. The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district judge

. United States v. Clay , 483 F.3d 739, 743 (11th Cir. 2007). The party who challenges the sentence bears the burden of establishing the sentence is unreasonable. United St ates v. Talley , 431 F.3d 784, 788 (11th Cir. 2005).

2 Kelly has abandoned any arguments regarding procedural reasonableness. United States v. Curtis , 380 F.3d 1308, 1310 (11th Cir. 2004) ( recognizing an appellant abandons an argument not raised in his initial brief on appeal).

Case: 13-15961 Date Filed: 09/23/2014 Page: 6 of 87 Sentencing factor manipulation occurs when the government manipulates a sting operation to increase a defendant’s potential sentence, such that a sentencing reduction is warranted. United States v. Hai le , 685 F.3d 1211, 1223 (11th Cir. 2012) (per curiam) . A reduction to a defendant’s sentence is only warranted, however, if the sting operation involved extraordinary misconduct. Id. Although we recognize sentencing factor manipulation as a means for a sentence reduction, we have never applied it. Id. ; see, e.g. , United States v. Ciszkowski , 492 F.3d 1264, 1269

- 71 (11th Cir. 2007) ( concluding the government did not engage in sentencing

- factor manipulation , when confidential informant provided defendant with firearm equipped with silencer, the possession of which result ed in a mandatory 30

- year , minimum

- imprisonment sentence); United States v. Williams , 456 F.3d 1353, 1370

- 71 (11th Cir. 2006) ( recognizing the purchase of crack cocaine, rather than powder cocaine, is not sentencing

- factor manipulation), abrogated on other grounds by Kimbrough v. United States , 552 U.S. 85, 128 S. Ct. 558 (2007). The district judge expressly considered the government’s rol e in the sting operation and Kelly’s personal history when imposing the sentence. The judge heard argument from the parties concerning Kelly’s contention that the government had targeted a low

- income, African

- American neighborhood. The judge also noted t he undercover officers’ use of fictitious facts had increased the

Case: 13-15961 Date Filed: 09/23/2014 Page: 7 of 88 applicable G uideline s range. The officers’ use of such facts during the sting operation did not amount to extraordinary misconduct sufficient to warrant a sentence reduction. The judge further explained a 60

- month sentence recognized the hardship Kelly ha d suffered, because of the earlier shooting, the seriousness of the offense, Kelly’s criminal history, and the opport unities Kelly had been given. Although Kelly challenges the weight t he district judge placed upon the government’s role and his personal history, we will not reweigh the sentencing factors. See Clay , 483 F.3d at 743. The dismissal of Count 4, based on citation to an incorrect firearm,

was fortunate for Kelly, because it resulted in a maximum sentence that was much lower than the applicable G uideline s range of 84 to 105 month of imprisonment

. Under the totality of the circumstances and the 18 U.S.C. § 3553(a) factors, Kelly’s 60

- month impri sonment sentence is substantively reasonable

. AFFIRMED. Case: 13-15961 Date Filed: 09/23/2014 Page: 8 of 8