FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 09, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16329

Non-Argument Calendar

________________________

D. C. Docket No. 08-00315-CR-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

EMANUEL JONES, 

a.k.a. E, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(July 9, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Emmanuel Jones appeals from his 78-month total sentence imposed for two

convictions for the use of a communication facility in furtherance of a conspiracy to
possess with intent to distribute, and to distribute, controlled substances, in violation

of 21 U.S.C. § 843(b). Jones argues that the district court abused its discretion by

failing to account for his substantial assistance to the government, as a factor in its

18 U.S.C. § 3553(a) sentencing analysis. After careful review, we affirm.

We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). 

In reviewing sentences for reasonableness, we perform two steps. Id. at 1190. 

First, we must “‘ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain

the chosen sentence -- including an explanation for any deviation fromthe Guidelines

range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). The district

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The § 3553(a)factors include: (1) the nature and circumstances of the offense and the history 1

and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness

of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the

need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5)

the need to provide the defendant with educational or vocational training or medical care; (6) the

kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policystatements

of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the

need to provide restitution to victims. 18 U.S.C. § 3553(a). 

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court need not discuss each § 3553(a) factor. United States v. Talley, 431 F.3d 784,

786 (11th Cir. 2005). Rather, “[t]he sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita, 551 U.S.

at 356. 

If we conclude that the district court did not procedurally err, we must consider

the “‘substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515 F.3d

at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to

determine “whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. There

is a “range of reasonable sentences from which the district court may choose,” and

a sentence within the guideline range is ordinarily expected to be reasonable. Id.

Moreover, when considering whether a defendant’s sentence is reasonable, we have

compared the sentence actually imposed to the statutory maximum. See, e.g., United

States v. Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006) (upholding sentence as

reasonable in part because it was “appreciably below the length of the statutory

maximum”). 

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“The weight to be accorded any given § 3553(a) factor is a matter committed

to the sound discretion of the district court, and we will not substitute our judgment

in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir. 2007) (internal quotation and brackets omitted). We will remand for

resentencing only if we are “left with the definite and firm conviction 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.” Pugh, 515 F.3d at 1191 (citation and internal quotation

omitted). The burden is on the defendant to show that the sentence was unreasonable

in light of the record and the § 3553(a) factors. Talley, 431 F.3d at 788. 

As applied here, Jones has not demonstrated that the district court committed

any procedural error or that his sentence is procedurally unreasonable. Jones

conceded at sentencing that his applicable guidelines range was correctly calculated,

and does not allege otherwise on appeal. Jones also concedes on appeal that, because

the government did not file a § 5K1.1 motion, the district court lacked the authority

to depart downward based on his substantial assistance.2

 “Upon motion of the government stating that the defendant has provided substantial 2

assistance in the investigation or prosecution of another person who has committed an offense,

the court may depart from the guidelines.” U.S.S.G. § 5K1.1. Section 5K1.1 thus requires a

substantial assistance motion by the government before the court can reduce a sentence under

that guideline. Id.; see United States v. Howard, 902 F.2d 894, 897 (11th Cir. 1990). 

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In addition, at the sentencing hearing, the district court allowed both parties to

present arguments as to what they believed the appropriate sentence should be. The

court considered Jones’ arguments for a “downward departure” based on his

cooperation with the government, as well as his request for concurrent, rather than

consecutive, sentences on the two telephone counts. Notably, the court heard Jones’

argument that he cooperated with authorities from the very beginning of the case and

agreed to “keep quiet” so asto prevent the investigation from being hampered; it also

heard the government’s response that it sought to reward Jones up-front for his

cooperation by allowing him to plead guilty to the telephone counts, instead of the

conspiracy counts. The court responded to Jones’ request for a downward departure

by pointing out that Jones “got a better deal” by this charge bargain, noting that,

because Jones was allowed to plead to the telephone counts, as opposed to the

conspiracy charges, he received the added benefit of serving only one year of

supervised release, instead of five years. The court accepted the plea agreement

because it “adequately reflect[ed] the seriousness of the actual offense behavior, and

[did] not undermine the statutory purposes of sentencing,” and it considered Jones’

individual characteristics. 

Moreover, the district court acknowledged that it considered all of the factors

identified in § 3553(a) and found the 78-month total sentence to be sufficient, but not

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greater than necessary, to comply with the statutory purposes of sentencing. Talley,

431 F.3d at 786 (“an acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient . . .”). Indeed,

the district court correctly calculated the applicable guideline range, treated the

guidelines as advisory, acknowledged that it considered the parties’ arguments, as

well as the PSI, the plea agreement, and the § 3553(a) factors, and ultimately

sentenced Jones at the bottom of the guidelines range. Jones has therefore failed to

show that his sentence was procedurally unreasonable. 

Jones also has failed to demonstrate that his bottom-of-the-guidelines total

sentence was substantively unreasonable. As for his claim that the “charge bargain”

that he accepted was not a better deal than pleading guilty to the charges of

conspiracy, Jones ignores the fact that, if he had pleaded guilty to the conspiracy

charges, he could have faced a 20-year term of imprisonment as well as a five-year

term of supervised release, and a mandatory minimum of 20 years’ imprisonment if

the government had filed a notice under 21 U.S.C. § 851 based on Jones’ prior drug

offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, 851; 18 U.S.C. § 3583(b)(1). 

In contrast, by pleading guilty to the telephone charges, Jones faced a lesser

eight-year statutory maximum term of imprisonment and a one-year supervised

release term. See 21 U.S.C. § 843(b), (d)(1); 18 U.S.C. § 3583(b)(3). Further, Jones’

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bottom-of-the-guidelines 78-month total sentence also was below the statutory

maximum of eight years’ imprisonment. See 21 U.S.C. § 843(d) (providing for a

maximum term of imprisonment of four years, as to each count); Valnor, 451 F.3d at

751-52; Talley, 431 F.3d at 788. Accordingly, Jones has not met his burden, in light

of the record and the pertinent § 3553(a) factors, to show that the district court abused

its discretion in sentencing him. 

AFFIRMED.

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