FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 AUGUST 19, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14864

Non-Argument Calendar

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D. C. Docket No. 09-20345-CR-PAS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NEHGUI NORMAN COX,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 19, 2010)

Before EDMONDSON, BLACK and MARTIN, Circuit Judges.

PER CURIAM:
Nehgui Norman Cox, through counsel, appeals his 168-month sentence

imposed for: (1) conspiring to distribute a detectable amount of MDMA (Count 1),

(2) possessing with the intent to distribute MDMA (Count 4), and (3) attempting to

distribute MDMA (Count 5). 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846; 18 U.S.C.

§ 2. On appeal, Cox argues (1) he did not receive reasonable notice of the careeroffender enhancement, (2) the district court erred by failing to apply a two-level

acceptance-of-responsibility reduction, (3) the district court miscalculated the drug

quantity attributable to him, and (4) his sentence was substantively unreasonable.

After review, we affirm Cox’s sentence.

I.

Cox contends he did not receive reasonable notice of the district court’s

intent to apply the career-offender enhancement in violation of his right to due

process. He also contends the probation officer failed to timely provide him with

the revised PSI reflecting this enhancement, in violation of Fed. R. Crim. P. 32.

A district court may enhance a defendant’s sentence as a career offender if

(1) he was at least 18 years old when he committed the offense of conviction,

(2) the offense of conviction was a felony constituting a crime of violence or

controlled-substance offense, and (3) he had at least two prior felony convictions

for crimes of violence or controlled-substance offenses. U.S.S.G. § 4B1.1(a).

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We decline to consider Cox’s challenge to the adequacy of notice related to

the career-offender enhancement because he admitted to the fact of his prior

convictions below. See Oyler v. Boles, 82 S. Ct. 501, 504 (1962) (holding

defendants could not challenge the adequacy of notice regarding the state’s intent

to apply a state statutory recidivism enhancement because they admitted to the fact

of their prior convictions below). Contrary to his contentions on appeal, Cox’s

defense counsel admitted during the sentencing hearing that (1) Cox pled guilty to

the residential burglary listed as a qualifying conviction, (2) he was convicted of

the federal drug trafficking offense listed as his second qualifying conviction, and

(3) he qualified as a career offender based on these offenses.

II.

Cox also contends the district court improperly declined to grant a two-level

acceptance-of-responsibility reduction. This claim is moot because the record

reflects that the district court applied a two-level reduction on this basis. See

United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).

III.

Cox argues the district court made an erroneous drug-quantity determination

in two respects. First, he contends the district court should have sentenced him

solely based on the seized MDMA, which would have resulted in a base offense

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level of 26 instead of 28 under § 2D1.1. Second, assuming the court properly

included some quantity of unseized but bargained-for MDMA, Cox argues the

district court failed to apply a conservative estimate for the amount attributable to

him.

Any error in the drug-quantity determination is harmless when another

provision controls the guideline range. See United States v. Rubio, 317 F.3d 1240,

1245 (11th Cir. 2003) (holding any error in the application of an obstruction-ofjustice enhancement was harmless because the career-offender guidelines

controlled). The government has the burden of proving harmless error. United

States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009).

Here, even assuming arguendo that the district court erred in its drugquantity calculation for purposes of § 2D1.1, such error was harmless because the

higher career-offender level of 32 controlled his guideline range under § 4B1.1(b).

Rubio, 317 F.3d at 1245.

IV.

Finally, Cox argues his 168-month sentence was substantively unreasonable.

Specifically, he claims the career-offender guideline range was disproportionately

harsh compared to his criminal history, because he only qualified based on a

burglary plea that resulted in one year’s probation.

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We review the sentence imposed by the district court for reasonableness.

United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008). The Supreme

Court has clarified that the reasonableness standard means review for abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). “[T]he burden of

establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors lies with the party challenging the sentence.” Williams, 526 F.3d

at 1322.

We consider the substantive reasonableness of a sentence under the totality

of the circumstances. Gall, 128 S. Ct. at 597. A sentence is substantively

unreasonable if it is not supported by the § 3553(a) factors. Id. at 600. A district

court’s “unjustified reliance” on a single § 3553(a) factor “may be a symptom of an

unreasonable sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008). Nevertheless, “[t]he weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” Williams, 526 F.3d

at 1323.

First, Cox does not challenge the procedural reasonableness of his total

sentence and has abandoned any claim in this respect. Second, Cox’s 168-month

total sentence was substantively reasonable because the § 3553(a) factors,

including the need for adequate deterrence, to promote respect for the law, and to

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provide sufficient punishment, show his sentence was sufficient but no greater than

necessary to fulfill the statutory purposes of sentencing. Moreover, the fact that

Cox’s 168-month sentence falls substantially below the statutory maximum term of

240 months’ imprisonment on each count reflects that the court gave due

consideration to mitigating factors. Accordingly, we affirm Cox’s total sentence.

AFFIRMED.

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