[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-13202

Non-Argument Calendar

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D.C. Docket No. 5:11-cr-00023-RS-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JACK ALLEN KELLY, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(March 11, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

Jack Kelly appeals his 240-month sentence after pleading guilty to

conspiracy to distribute methamphetamine, and possession of a firearm by a 

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convicted felon. Kelly argues that the district court was mistaken when it decided

that the plain language of his plea agreement allowed the government to seek a 

sentencing enhancement on his drug conspiracy charge, and when it failed to 

sentence him below the statutory maximum on his gun charge.

I. BACKGROUND

On June 22, 2011, a grand jury returned an indictment charging Kelly and 

fourteen codefendants with conspiracy to distribute methamphetamine, and various 

substantive offenses related to that conspiracy. Specifically, Kelly was charged 

with conspiracy to distribute 500 grams or more of a methamphetamine mixture, 

and 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(A)(viii), and 846 (Count I); three counts of possession with 

intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 

(b)(1)(C) (Counts III, V, and XI); and possession of a firearm by a convicted felon, 

in violation of 18 U.S.C. §§ 922(g)(l) and 924(a) (Count XII). 

On August 2, the government filed notice that pending Kelly’s conviction of 

“the drug offenses charged in the Indictment”—including the drug conspiracy 

offense (Count I)—it intended to seek an enhanced sentence under 21 U.S.C. 

§ 851, based on Kelly’s prior felony conviction for conspiracy to distribute 

methamphetamine. Two days later, on August 4, Kelly entered into a written plea 

agreement with the government providing that he would plead guilty to Counts I 

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and XII (the conspiracy charge and the gun charge, respectively), and in return the 

government would move to dismiss Counts III, V, and XI (the possession with 

intent to distribute charges). The plea agreement stated, among other things, that 

Count I carried “a mandatory minimum of ten years’ imprisonment, [and] a 

maximum of life imprisonment.” It also provided that “the sentence to be imposed 

is left solely to the discretion of the District Court,” and that “the District Court’s 

discretion in imposing sentence is limited only by the statutory maximum sentence 

and any mandatory minimum sentence prescribed by statute for the offense.”

At Kelly’s change-of-plea hearing, the district court explained the potential 

sentencing consequences of pleading guilty. As to Count I, the court noted that the 

government had provided notice of its intent to seek an enhanced sentence and 

emphasized that if the enhanced sentence applied, Kelly would face “a mandatory

minimum of 20 years in prison.” The district court then questioned Kelly to be 

sure that he understood that his sentence on Count I would vary depending upon 

whether it was enhanced, and that the ultimate decision as to sentencing remained 

with the district court. Kelly repeatedly affirmed that he understood the potential 

sentences that he faced, and also that he had sufficient time to talk to his lawyer 

about his possible sentences. Having determined that Kelly understood the 

charges, the plea agreement, and the sentencing possibilities, the district court 

adjudicated him guilty on Counts I and XII, and dismissed Counts III, V, and XI.

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The Probation Office prepared a presentence investigation report (PSI) that 

calculated Kelly’s guideline sentence to be 121 to 151-months imprisonment based 

on a total offense level of 31 and a criminal history category of II. However, due 

to application of the § 851 enhancement, Kelly’s minimum sentence on Count I 

was 240-months imprisonment. At sentencing, Kelly did not object to the 

recommendations in the PSI; instead he requested a sentence below the mandatory 

minimum based upon his acceptance of responsibility and assistance to the 

government. The district court rejected Kelly’s request, and sentenced him to 

240-months imprisonment on Count I, and 240-months imprisonment on Count 

XII, to be served concurrently, which the court believed was the “mandatory 

sentence required by statute.” Kelly did not object. 

Kelly then appealed, arguing that he should have received a reduced

sentence for having provided substantial assistance to the government, pursuant to 

U.S.S.G. § 5K1.1. While his appeal was pending, Kelly filed a Motion for 

Relinquishment of Jurisdiction and Remand for Resentencing, arguing that he was 

illegally sentenced to 240-months imprisonment on Count XII because the 

statutory maximum for that charge is 120-months, and requesting that his sentence 

on Count XII be vacated and his case remanded for resentencing de novo. We 

granted this motion in part, vacating Kelly’s sentences as to Counts I and XII, and 

remanding for resentencing, but leaving to the district court’s discretion “[t]he 

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decisions as to whether to conduct a resentencing hearing and as to the scope of 

any such hearing.” See United States v. Kelly, No. 11-15241 (11th Cir. Mar. 27, 

2012).

Before resentencing, the Probation Office revised the PSI, again determining

that Kelly’s guideline range was 121 to 151-months, based on a total offense level 

of 31 and a criminal history category of II. The revised PSI also stated, as before,

that Kelly faced a minimum term of 240-months imprisonment on Count I, based 

on the § 851 enhancement. For Count XII, however, the revised PSI indicated that 

Kelly faced a maximum term of only 120-months imprisonment, pursuant to 18 

U.S.C. § 924(a)(2). The PSI concluded that “[b]ecause the statutorily required 

minimum sentence as to Count 1 (240 months) is greater than the maximum of the 

applicable guideline range (151 months), the statutorily required minimum 

sentence of 240 months becomes the guideline sentence pursuant to [U.S.S.G.] 

§5G1.1(b).” 

Kelly objected to the revised PSI, arguing that under the terms of his plea 

agreement he was ineligible for the § 851 enhancement on Count I. He also 

objected to the length of his sentence compared to those of his codefendants, and

argued that his drug addiction was a disability. Kelly reiterated these objections at 

his resentencing hearing, and urged the district court to determine de novo whether 

the enhancement should apply to Count I. 

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After verifying that Kelly did not object to the § 851 enhancement at his plea 

hearing or his original sentencing hearing, or raise it as an issue on appeal, and that 

Kelly was warned regarding the possibility of the enhancement during his plea 

colloquy, the district court held that it was “not going to revisit the application of 

the enhancement” because there was “ample opportunity for that to have been 

raised . . . and it was not done.” Turning to Count XII, the district court 

determined that the statutory maximum of 120-months imprisonment was 

appropriate, given “the seriousness of the presence of a firearm” in Kelly’s drug 

distribution operation, and that Kelly had disregarded “the law that prohibits 

convicted felons from having firearms.” In sum, the district court determined that 

a term of 240-months in prison—consisting of 240-months on Count I and 120-

months on Count XII, each to run concurrently—was sufficient, but not greater 

than necessary “to comply with the statutorily defined purposes of sentencing.” As 

before, Kelly did not object. This appeal followed.

II. DISCUSSION

A.

Kelly’s first argument is that the district court erred as a matter of law when 

it determined that his plea agreement “did not by its explicit terms void the earlier 

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filed enhancement information.”1 We review de novo a district court’s application 

of the sentencing guidelines. United States v. Spoerke, 568 F.3d 1236, 1245 (11th 

Cir. 2009). The guidelines provide, in pertinent part, that “[w]here a statutorily 

required minimum sentence is greater than the maximum of the applicable 

guideline range, the statutorily required minimum sentence shall be the guideline 

sentence.” U.S.S.G. § 5G1.1(b). Here, as required under 21 U.S.C. § 851(a)(1), 

the government filed notice of its intent to seek an enhanced sentence on Count I 

based on Kelly’s prior felony drug conviction. Kelly’s prior drug conviction 

exposed him to a mandatory minimum sentence of 240-months imprisonment on 

Count I, under 21 U.S.C. § 841(b)(1)(A). Once the district court accepted Kelly’s 

guilty plea as to Count I, it was obligated to sentence him to the 240-month 

mandatory minimum if it determined that he had previously been convicted of a 

 1

 The government responds initially that we lack jurisdiction to consider this argument because 

in remanding Kelly’s case for resentencing, we limited the district court’s mandate to correcting 

the illegal sentence on Count XII, and thus the district court lacked jurisdiction to consider the 

sentencing enhancement issue. This argument has no merit. In accordance with our precedent, 

our order unambiguously vacated Kelly’s “sentences,” not just his sentence for Count XII, and 

left to the discretion of the district court “whether to conduct a resentencing hearing” and to 

determine “the scope of any such hearing.” Kelly, No. 11-15241; see United States v. Stinson, 

97 F.3d 466, 469 (11th Cir. 1996) (“[W]hen a criminal sentence is vacated, it becomes void in its 

entirety; the sentence—including any enhancements—has been wholly nullified and the slate 

wiped clean.” (quotation marks omitted)); United States v. Rogers, 848 F.2d 166, 169 (11th Cir. 

1988) (holding that a district court, on remand for resentencing, has discretion to avoid 

“redo[ing] that which had been done correctly at the first hearing”). Because our remand order 

gave the district court discretion to consider whether the sentencing enhancement was properly 

applied, and because we undoubtedly have jurisdiction to hear “appeal[s] from . . . resentencing 

upon remand,” see United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir. 1989), we 

have jurisdiction to consider Kelly’s argument here. 

Alternatively, the government urges that Kelly waived the sentencing enhancement issue 

by failing to raise it at his initial sentencing hearing or on appeal. Because Kelly’s claim fails on 

the merits, we need not decide the issue of waiver.

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felony drug offense as alleged in the government’s notice. Id. § 851(d)(1) (“[I]f 

the court determines, after hearing, that the person is subject to increased 

punishment by reason of prior convictions, the court shall proceed to impose 

sentence upon him as provided by this part.”); see also United States v. Clark, 274 

F.3d 1325, 1328 (11th Cir. 2001) (“The sentencing guidelines make clear that 

where a guidelines range falls entirely below a mandatory minimum sentence, the 

court must follow the mandatory statutory minimum sentence.”); cf. United States 

v. Brehm, 442 F.3d 1291, 1292 (11th Cir. 2006) (rejecting appellant’s argument 

that the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S. 

Ct. 738 (2005), “permitted courts discretion as to the imposition of mandatory 

minimum sentences”). Kelly does not dispute that he was previously convicted of 

conspiracy to distribute methamphetamine, a felony drug offense. Therefore, the 

district court did not err in sentencing Kelly to the mandatory minimum 240-month 

term of imprisonment on Count I, due to the § 851 enhancement.

2

B.

 2

 Nothing in Kelly’s plea agreement relieved the district court of its statutory obligation to 

impose the mandatory minimum sentence, nor could it. See Clark, 274 F.3d at 1328. Beyond 

that, nothing in the agreement made it reasonable for Kelly to believe that he would not be 

subject to the § 851 enhancement, if the court determined that the information in the 

government’s notice was accurate. This is so because Kelly’s plea agreement never mentioned 

the previously filed enhancement notice, but instead expressly provided for the possibility of 

“any mandatory minimum sentence prescribed by statute for the offense,” and included an 

integration clause stating “[t]here are no other agreements between the [government] . . . and 

Jack Allen Kelly.” Cf. United States v. Al-Arian, 514 F.3d 1184, 1192–93 (11th Cir. 2008) 

(noting the inclusion of an integration clause in the plea agreement to reject the appellant’s 

argument that he reasonably understood the government to have implicitly agreed to certain 

terms).

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Kelly also argues that his revised, guideline sentence of 120-months 

imprisonment on Count XII is unreasonable. We review a sentence imposed by 

the district court for procedural and substantive reasonableness. United States v. 

Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). 

Kelly concedes that the district court’s calculation of his guideline range was 

procedurally correct. See id. (“A sentence may be procedurally unreasonable if the 

district court improperly calculates the Guidelines range, treats the Guidelines as 

mandatory rather than advisory, fails to consider the appropriate statutory factors, 

selects a sentence based on clearly erroneous facts, or fails to adequately explain 

the chosen sentence.”). He argues, however, that his sentence is substantively 

unreasonable because it was out of proportion to sentences received by his 

codefendants, failed to account for his “efforts to cooperate” with the government, 

and also failed to account for his methamphetamine addiction.

We review the substantive 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). In determining whether a sentence is substantively reasonable, 

we are guided by the factors set forth in 18 U.S.C. § 3553(a). United States v. 

Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). “These factors include the 

available sentences, the applicable Guideline range, the nature and circumstances 

of the offense, and the need for the sentence to reflect the seriousness of the 

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offense, promote respect for the law, provide just punishment for the offense, and 

provide the defendant with needed medical care.” Id. (citing 18 U.S.C. § 3553(a)). 

“[W]hen the district court imposes a sentence within the advisory Guidelines 

range, we ordinarily will expect that choice to be a reasonable one.” United States 

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

We are not persuaded by Kelly’s argument that his guideline sentence on 

Count XII is substantively unreasonable. In arriving at its sentencing 

determination, the district court expressly considered Kelly’s conduct compared to 

his codefendants, as well as his drug addiction. The record is equally clear that the 

court heard argument regarding Kelly’s cooperation with the government, even if 

that cooperation was not sufficient to warrant a recommendation for a reduced 

sentence under U.S.S.G. § 5K1.1. In sum, however, the court determined that 

these factors were outweighed by other § 3553(a) factors, particularly the 

seriousness of the offense, the need to promote respect for the law, and the need to 

provide just punishment. See Winingear, 422 F.3d at 1246. On this record we 

cannot say that the district court abused its discretion when it determined that a 

high-end guideline sentence was appropriate on Count XII.

III. CONCLUSION

For these reasons, Kelly’s sentence is 

AFFIRMED.

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