[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 15619 Non

- Argument Calendar

________________________ D.C. Docket No. 0:14

- cr - 60163

- WPD

- 1 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus SHAUN ERIC MCKINLEY, Defendant

- Appellant.

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

________________________ ( April 12, 2016 ) Before MARCUS , JORDAN and JULIE CARNES , Circuit Judges. PER CURIAM: Shaun Eric McKinley appeal s his convictions and two life sentences for kidnapping, in violation of 18 U.S.C. § 1201(a), and sex trafficking, in violation of 18 U.S.C. § 1591(a)(1). On appeal, McKinley argues that: (1) the evidence was

Case: 14-15619 Date Filed: 04/12/2016 Page: 1 of 212 insufficient to convict him of sex traffickin g under the Trafficking Vi ctims Protection Act (“TVPA”); (2) the federal kidnapp ing statute is unconstitutional; (3) the evidence was insufficient to convict him of kidnapping ; (4) the district court plainly erred in its evidentiary rulings; (5) the district court abused its discretion in denying him a mistrial; (6) the government engaged in prosecutorial misconduct; (7) the district court abused its discretion in denying hi m a continuance ; (8) the admission of his prior bad acts and the improper impeachment of his witness cumul atively denied him a fair trial; (9) the district court erred in applying a n obstruction

- of

- justice enhancement ; (10 ) his prior Florida convictions for controlled

- substance offenses did not qualify as controlled

- substance of fenses for

career - offender purposes ; and (11) his sentences were substantively unreasonable

. After thorough review, we affirm. We review the sufficiency of the evidence de novo , viewing the evidence in the light most favorable to the government and drawin g all reasonable inferences in favor of the jury’s verdict. United States v. Martin , 803 F.3d 581, 587 (11th Cir. 2015). A defendant must offer more than a reasonable hypothesis of innocence

-- the issue is not whether a jury reasonably could have acquitted, but whether it reasonably could have found guilt beyond a reasonable doubt. Id . We also review the constitutionality of a federal statute de novo

. United States v. Jackson , 111 F.3d 101, 1 01 (11th Cir. 1997). W hile we typically review de novo claims of

Case: 14-15619 Date Filed: 04/12/2016 Page: 2 of 213 prosecutorial misconduct , if a defendant failed to object to the prosecutor’s statements before the district court, we review for plain error that is so obvious that failure to correct it wo uld jeopardize the fairness and integrity of the trial. United States v. Merrill , 513 F.3d 1293, 1306

- 07 (11th Cir. 2008). P lain error i s (1) an error, (2) that is plain, and (3) that affects a defendant’ s substantial rights. United States v. Edouard , 485 F.3d 1324, 1343 n.7 (11th Cir. 2007). If these three prongs are met, we will only correct the error if it “ ‘ seriously affects the fairness, integrity, or public reputation of judicial proceedings. ’ ” Id

. A n error affect s substantial rights if it “ ‘ af fected the outcome of the district court proceedings. ’ ” Id

. We review the denial of a motion for mistrial and the denial of a motion to continue trial for abuse of discretion. United States v. McGarity , 669 F.3d 1218, 1232 (11th Cir. 2012) ; United States v. Valladeres , 544 F.3d 1257, 1261 (11th Cir. 2008)

. We typically review evidentiary rulings for abuse of discretion, but will review for plain error i f a defendant failed to preserve a challenge to an evidentiary ruling by contemporaneously objecting. United States v. Turner , 474 F.3d 1265, 1275 (11th Cir. 2007). Similarly, if a party induce d or invite d the district court into making an error, we are precluded from reviewing that erro r on appeal. United States v. Brannan , 562 F.3d 1300, 1306 (11th Cir. 2009). We review a district court’s findings of fact concerning an obstruction

- of

justice enhancement for perjury for clear error. United States v. Banks , 347 F.3d

Case: 14-15619 Date Filed: 04/12/2016 Page: 3 of 214 1266, 1269 (11th Cir . 2003). We review de novo the court’s decision to classify a defendant as a career offender under U.S.S.G. § 4B1.1. United States v. Gibson , 434 F.3d 1234, 1243 (11th Cir. 2006). 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) (quot ation omitted ). We are bound to follow our binding p recedent unless and until we overrule the precedent en banc or the Supreme Court overrules it. United States v. Vega

- Castillo , 540 F.3d 1235, 1236 (11th Cir. 2008). First, we are unpersuaded by McKinley’s claim that there was insuff icien t evidence to con vict him of sex

- trafficking

. To obtain a conviction for sex

trafficking a non

- minor, the government must first show that the defendant knowingly recruited, enticed, harbored, transported, provided, obtained, or maintained a person by any means. 18 U.S.C. § 1591(a)(1). The government must then prove that the defendant knew or was in reckless disregard of the fact that means of force, threats of force, fraud, or coercion would be used to cause the person to engage in a commercial sex act. Id . Lastly, the government must prove that the offense was in or affected interstate or foreign commerce. Id

. The statute defines “coercion” to include “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in

s erious harm to . . . any person.” Id . § 1591(e)(2)(B). “Serious harm” is then

Case: 14-15619 Date Filed: 04/12/2016 Page: 4 of 215 defined as “any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circums tances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm.” Id . § 1591(e)(4). When a defendant chooses to testify, he ru ns the risk that, if disbelieved, the jury might conclude that the opposite of his testimony is true. United States v. Brown , 53 F.3d 312, 314 (11th Cir. 1995). Thus, a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of his guilt. Id

. Where some corroborative evidence of guilt exists for the charged offense, and the defendant t akes the stand in his own defense, the defendant’s testimony denying guil t may establish, by itself, elements of the offense. Id . at 314

- 15. This rule applies with special force where the elements to be proved for a conviction include highly subjective e lements, such as intent or knowledge. Id . at 315. Credibility determinations are the exclusive province of the jury, and w ill not be disturbed unless testimony the jury relied on was incredible as a matter of law. United States v. Thompson , 422 F.3d 128 5, 1291

- 92 (11th Cir. 2005). T o be incredible as a matter of law, testimony must be unbelievable on its face. Id

. at 1291. McKinley claims there was no evidence that he forced or coerced Ashlee Wilson to engage in a commercial sex act because she w orked in prostitution

Case: 14-15619 Date Filed: 04/12/2016 Page: 5 of 216 before he met her and she voluntarily engaged in a joint commercial

- sex trafficking venture with him. However, sufficient evidence showed that McKinley knowingly harbored Wilson by the use of force, threats of force, and coercion in order to force her to perform commercial sex acts. Wilson herself testified that McKinley engaged in threats and violence to scare he r to stay with him and keep performing commercial sex. For example, after an escape attempt , McKinley “hog

- tied” her naked and beat her with a board. She s aid she felt required to follow his orders, because the alternative “wouldn’t be good for [her].” Her testimony was corroborated by witness Shaquille Antonio , who said that McKinley had bragged to him that he had beaten Wilson so that she would not escape again. The on ly evidence directly rebutt ing Wilson’s testimony was McKinley’s own denial , but the jury was entitled to disbelieve his testimony and use it as evidence of his guilt. Moreover, the fact that Wilson worked as a prostitute before meeting McKinley does not excuse his responsibility under the statute for compelling her to “continue performi ng commercial sexual activity.” See 18 U.S.C. § 1591(e)(4). We also reject McKinley ’s constitutional challenge to the federal kidnapping
statute
. As a general rule, a facial constitutional challenge can succeed only if the law is unconstitutional in all of its applications. See Horton v. City of St. Augustine, Fla. , 272 F.3d 1318, 1329 (11th Cir. 2001) . We will only invalidate a

Case: 14-15619 Date Filed: 04/12/2016 Page: 6 of 217 congressional enactment upon a plain showing that Congress ha s exceeded its constitutional bounds. United States v. Morrison , 529 U.S. 598, 607 (2000). Under its commerce power, Congress may permissibly regulate the channels and instrumentalities of interstate commerce, as well as activities having a substantial ef fect on interstate commerce. U.S. Const. art. I, § 8, cl. 3.; United States v. Lopez , 514 U.S. 549, 559

- 60 (1995). In Lopez , the Supreme Court held that the Gun

- Free School Zones Act

-- which criminalized possession of a firearm in a school z one -- w as a n unconstitutional exercise of Congressional authority because the Act neither regulated commercial activity nor required the possession to be connected to interstate commerce. 514 U.S. at 551

. Notably, however, i n reaching this conclusion, Lopez held it dispositive that the statute contained “no jurisdictional element which would ensure, through case

- by

- case inquiry, that the firearm possession in question affects interstate commerce.” Id . at 561. Based on Lopez , we ’ve held that the express jur isdictional elements of a number of statutes defeated facial challenges to their constitutionality. See United States v. Drury , 396 F.3d 1303, 13 11 (11th Cir. 2005) (murder

- for

- hire); United States v. Castleberry , 116 F.3d 1384, 1387 (11th Cir. 1997) (Hob bs Act); United States v. Chowdhury , 118 F.3d 742, 745 (11th Cir. 1997) (federal arson); United States v. McAllister , 77 F.3d 387, 389

- 90 (11th Cir. 1996) (felon

- in

- possession

- of

- firearm). Case: 14-15619 Date Filed: 04/12/2016 Page: 7 of 218 The federal kidnapping statute at issue here prohibits the kidnap ping of any person when an instrumentality of interstate commerce is used “in committing or in furtherance of the commission of the offense.” 18 U.S.C. § 1201(a)(1). Thus,

u nlike the statute invalidated in Lopez , the kidnapping statute contains an expres s jurisdictional element that ensures that the statute only reaches kidnapping furthered by the instrumentalities of interstate commerce. See Lopez , 514 U.S. at 559

- 60 ; United States v. Morgan , 74 8 F.3d 1024, 1032 n.9 (10th Cir. 2014 ) (persuasive authority) ( noting failures of constitutional challenge s to kidnapping statute)

. T he federal kidna pping statute , therefore, is not facially constitutional. Next, w e find no merit to McKinley ’s argument that there was insufficient evidence that he used i nstrumentalities of interstate commerce in furtherance of his kidnapping offense

. To sustain a conviction under the federal kidnapping statute , there must be sufficient evidence that the defendant kidnapped any person and that he used an instrumentality o f interstate commerce “in committing or in furtherance of the commission of the offense.” 18 U.S.C. § 1201(a)(1). Cellular telephones are instrumentalities of interstate commerce. United States v. Evans , 476 F.3d 1176, 1180

- 81 (11th Cir. 2007). Therefo re, the use of cell phones, even without evidence that the calls were routed through the interstate system, sufficiently satisfies the use of interstate commerce element of an offense. Id

.

Case: 14-15619 Date Filed: 04/12/2016 Page: 8 of 219 The evidence adduced at trial shows that McKinley used his cell phone before and during Wilson’s kidnapping. Indeed , McKinley used his cell phone to communicate with Chuwan Evans, an individual who set up a “date” with Wilson so that McKinley could kidnap her. McKinley also spoke to Evans on his cell ph one while he was following him to find a non

- public place to commit the kidnapping. Because sufficient evidence demonstrated that cell phones were used in furtherance of kidnapping Wilson, and, therefore, supported McKinley’s conviction , t he federal kidnapping statute was constitutional as applied to him. Similarly, we reject McKinley ’s claim that the district court erred in admitting evidence about his involvement with drugs and guns, a prior drug conviction, and testimony that he hit someone with a brick

. The Federal Rules of Evidence prohibit the admission of evidence of other crimes, wrongs, or acts to show a defendant’s character in order to prove action in conformity with his character, though this evidence may be admitted for other purposes. Fed. R. E vid. 404(b). Rule 404(b), however, deals only with the admissibility of evidence extrinsic to the charged offenses ; the rule does not cover intrinsic evidence. Edouard , 485 F.3d at 1344. Evidence is intrinsic if it is: (1) an uncharged offense arising out of the same series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. Id . Intrinsic evidence must nevertheless satisfy

Case: 14-15619 Date Filed: 04/12/2016 Page: 9 of 2110 Rule 403 ’s probative

- value/prejudice weighing test

. Id

. at 1344 & n.8. Evidence is inextricably intertwined with evidence of t he charged offense when it forms an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted. Id . at 1344. We’ve said that evidence of activities that occurred before the ch arged offense is admissible if it pertains to a chain of events forming the context, motive, and set

- up of the crime. United States v. Lehde r - Rivas , 955 F.2d 1510, 1516 (11th Cir. 1992). In this case, t he district court did not plainly err in admitting testimony of McKi nley’s drug activities, since the testimony was intrinsic to the chain of events forming the context and set

- up of his sex

- tr afficking and kidnapping offenses. 1
Nor was there plain error when the government referenced McKinley’s “last” prior conviction, since the questioning was meant to resolve McKinley’s apparent confusion about which of his drug activities was the subject of the government’s questioning. Finally, testimony concerning McKinley’s brick attack was necessary to complete Wilson’s story and prove that McKinley forced her into performing commercial sex acts. The district court, therefore, did not plainly err or abuse its discretion in denying McKinley’s motion for mistrial on these grounds

.

1 B ecause McKinley did not object to the admission of evidence relating to his drug activities or his “last conviction,” we review those claims for plain error. McKinley did object to evidence relating to his attack with the brick, and, we review that claim for abuse of discretion.

Case: 14-15619 Date Filed: 04/12/2016 Page: 10 of 2111 We also reject McKinley ’s claim that the distric t court abused its discretion by denying his motions for mistrial during a defense witness’ cross - examination

. The grant of mistrial is warranted only if a defendant show s “ substantial prejudice , ” United States v. Chastain , 198 F.3d 1338, 1352 (11th Cir. 1999), which is a reasonable possibility that, but for the improper rema rks or evidence, the trial outcome would have been different , United States v. Emmanuel , 565 F.3d 1 324, 1334 (11th Cir. 2009). The district court is in the best position to evaluate the prejudicial effect of a statement or evidence on the jury. Id . We ’ve held that the admission of inadmissible evidence did not affect the outcome of a jury verdict when there was overwhelming evidence of the defendant’s guilt. United States v. Phaknikone , 605 F.3d 1099, 1109 (11th Cir. 2010). McKinley claims that the go vernment improperly impeached a defense witness with extrinsic evidence of drugs and guns , but he has not shown that these references during a single defense witness’s cross

- examination would have exerted a substantial impact on the jury’s verdict and affe cted the outcome of his trial. As the record shows, t he government introduced overwhelming evidence of McKinley’s guilt, including consistent testimony from multiple witnesses, surveillance videos of McKinley’s actions, and photographs and other records o f McKinley’s activities. Accordingly, we affirm the district court’s denial of his motions for a mistrial concerning this evidence.

Case: 14-15619 Date Filed: 04/12/2016 Page: 11 of 2112 Next, we disagree with McKinley ’s claim that the government engaged in four instances of prosecutorial misconduct

. A prosecutor’s statements will justify reversal of a conviction only if they undermined the fairness of the trial and contributed to a miscarriage of justice. United States v. Jacoby , 955 F.2d 1527, 1541 (11th Cir. 1992). To establish prosecutorial misco nduct, (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant. Merrill , 513 F.3d at 1307. A s we’ve noted, a defendant’s substantial rights are prejudicially affected when a reasonable proba bility arises that, but for the remarks, the outcome of the trial would have been different. Id

. The “mere utterance” of words such as “jail,” “prison,” or “arrest” without

re gard to context or circumstance does not necessarily constitute reversible err or. United States v. Veteto , 701 F.2d 136, 139

- 40 (11th Cir. 1983). Rather, what
matters is whether the remark was a c onstant reminder of the accused’ s condition and a continuing influence throughout the trial that presented an unacceptable risk of imper missible factors corrupting the jury’s judgment. United States v. Villabona

- Garnica , 63 F.3d 1051, 1058 (11th Cir. 1995) (holding that a brief comment referencing the defendant’s imprisonmen t did not prejudice the jury ). A prosecutor’s statements durin g closing argument require reversal only if the comments are both improper and prejudicial to a substantial right of the defendant in light of the particular facts of the case and in the context of the entire

Case: 14-15619 Date Filed: 04/12/2016 Page: 12 of 2113 record. Jacoby , 955 F.2d at 15 40

- 41 (holding t hat a prosecutor’s statements during closing arguments that inconsistencies “were so glaring and so clear” that “[s]omeone is committing perjury” were neither improper nor prejudicial, albeit “colorful and perhaps flamboyant”). Because the statements of c ounsel are not evidence, the district court may rectify improper prosecutorial statements by instructing the jury that only the evidence in the case is to be considered. Id . The prosecutor is entitled to make a fair response to the defense counsel’s argu ments. United States v. Hiett , 581 F.2d 1199, 1204 (5th Cir. 1978). 2 McKinley argues that taken together, these four instances of prosecutorial misconduct denied him a fair trial: (1) eliciting testimony of other crimes during

cross - examination; (2) allud ing to McKinley’s prior drug conviction; (3) referencing McKinley’s prior time in prison; and (4) referencing “smoke and mirrors” and “red herrings” during its rebuttal of his closing argument. However, our review of the record reveals that t he government did not plainly engage in prosecutorial misconduct because these comments and actions were not improper

. Moreover, g iven the substantial evidence of McKinley’s guilt, he has not shown that, but for the se four instances , his verdict would hav e been different. We also are unconvinced by McKinley ’s claim that the district court abused its discretion in denying his motion to continue that he submitted before trial and

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions issued befor e October 1, 1981.

Case: 14-15619 Date Filed: 04/12/2016 Page: 13 of 2114 his oral request to continue that he submitted before jury selection. It is t he defendant’ s burden to demonstrate that the denial of a motion to continue was an abuse of discretion and that it produced specific substantial prejudice. United States v. Smith , 757 F.2d 1161, 1166 (11th Cir. 1985). The following factors are relevant in assessing claims that counsel did not have adequate time to prepare: the time available for preparation, the likelihood of prejudice from denial, the accused’s role in shortening the effective preparation time, the degree of complexity of the case, and the availability of discovery from the prosecution. United States v. Uptain , 531 F.2d 1281, 1286 (5th Cir. 1976). To the extent McKinley challenges the district court’s denial of his pretrial motion to continue, we are precluded from reviewing it because McKinley invited the error by insisting on going to trial. To the extent he challenges his oral motion to continue, the district court had previously provided him with ample opportunity to receive a continuance. As the record reveals, the court did not previously grant a continuance because McKinley insisted on go ing to trial that Monday, in spite of his attorney’s lack of preparation. Even after McKinley requested more time on the morning of the trial, the district court accommodated his request by off ering an extended lunch break so that he could discuss his case with his attorney. In any
event , McKinley has not identified any specific, substantial prejudice resulting from the denial , instead resort ing to generalized arguments about the shortness of

Case: 14-15619 Date Filed: 04/12/2016 Page: 14 of 2115 p reparation time and the severity of the sentences he faced. On this record , the district court did not abuse its discretion in denying a continuance

. Likewise, we are unpersuaded by McKinley ’s argument that the admission of his prior bad acts and the improper impeachment of his witness cumulatively denied him a fair trial. Under the cumulative error doctrine, an aggregation of plain errors failing to necessitate reversal and harmless errors can yield a denial of the constitutional right to a fair tria l, which calls for reversal. United States v. Baker , 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington , 547 U.S. 813, 821 (2006). The harmlessness of cumulative error is determined by conducting the same inquiry as f or individual error, under which we lo ok to see whether the defendant’ s substantial rights were affected. Id . The total effect of the errors on the trial will depend, among other things, on the nature and number of the errors committed, their interrelati onship, their combined effect, how the district court dealt with the errors as they arose, the strength of the government’s case, and the length of trial. Id

. In this case, t here was no cumulative error with regard to the district court’s evidentiary rul ings and denials of McKinley’s motions for mistrial . Not only has he failed to show any reversible error, as we’ve discussed above, but he has failed to demonstrate or explain how the aggregate effect of these errors substantially influenced the outcome o f his trial.

Case: 14-15619 Date Filed: 04/12/2016 Page: 15 of 2116 W e likewise dis agree with McKinley’s claim that the district court erred in applying a two

- level enhancement for obstruction of justice based on his untruthful testimony and his attempts to procure false exonerating letters during recorded jailhouse phone calls. When applying this enhancement, a d istrict court should make specific findings as to each alleged instance of obstruction by identifying the materially false statements individually. United States v. Arguedas , 86 F.3d 1054, 1059 (11th Cir. 1996). However, a general finding that an enhance ment is warranted suffices if it encompasses all of the factual predicates n ecessary for a perjury finding. United States v. Singh , 291 F.3d 756, 763 (11th Cir. 2002). Under U.S.S.G. § 3C1.1, a defendant receives a two

- level enhancement if: [T]he defen dant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and

. . . the o bstructive conduct related to (A ) the defendant’s offense of conviction and any relevant conduct; or (B ) a closely related offense[.] U.S.S.G. § 3C1.1. A defendant may obstruct justice by committing perjury during his trial. Singh , 291 F.3d at 763. Perjury is defined as false testimony c oncer ning a material
matter made with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. Id

. Testimony concerns a material matter if it would tend to influence the jury’s consideration of the matters at hand if it were believed. Id . This materiality requirement is a low one. United States v.

Case: 14-15619 Date Filed: 04/12/2016 Page: 16 of 2117 Dedeker , 961 F.2d 164, 167 (11th Cir. 1992). The dis trict court may conclude that a defendant’s testimony is false when it is irreconcilable with the record. United States v. Williams , 627 F.3d 839, 845 (11th Cir. 2010)

. A defendant may also obstruct justice by “threatening, intimidating, or otherwise unl awfully influencing

a . . . witness . . . directly or indirectly, or attempting to do so.” U.S.S.G. § 3C1.1, comment. (n. 4(a)). Encouraging a potential witness to lie is considered “unlawfully influencing” for purposes of an obstruction enhancement. See United States v. Amedeo , 370 F.3d 1305, 1319 (11th Cir. 2004). Here, t he district court did not clearly err in determining that McKinley’s testimony that he had not bled on the night of the kidnapping was perjurious, since his testimony contradicted the testimony of three witnesses, all of whom said he had been covered in blood, as well as the DNA evidence that identified blood in the car as his

. Nor did t he district court clearly err in finding that McKinley’s attempt to influence potential witnesses to write letters declaring his innocence

-- which he admitted to at trial

-- supported the obstruction enhancement. Moreover, contrary to McKinley’s claim , the district court identified each material false statement individually and made specific factual fi ndings for each. Accordingly, the court did not clearly err in imposing an obstruction enhancement. We also are unpersuaded by McKinley ’s claim that his prior Florida convictions for controlled

- substance offenses were not controlled

- substance

Case: 14-15619 Date Filed: 04/12/2016 Page: 17 of 2118 offenses for career - offender purposes. For a defendant to be a career offender , he must have at least two prior felony convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a). A “controlled substance offense” is “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manuf acture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” Id . § 4B1.2(b). Under Florida law, it is a crime t o “sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat. § 893.13(1)(a). We have determined that a prior conviction under Fla. Stat. § 893.13(1) is a “controlled substance offense” und er U.S.S.G. § 4B1.2(b) and, therefore, qualifies as a predicate felony for the purposes of the career offender enhancement under U.S.S.G. § 4B1.1(a). United States v. Smith , 7 75 F.3d 1262, 1267

- 68 (11 th Cir. 2014). We held that no element of mens rea wit h respect to the illicit nature of the controlled substance is expressed or implied in the Guidelines’ definition of a controlled substance offense. Id . at 1267. Under our binding precedent, the district court did not err in determining that McKinley’s prior convictions under Fla. Stat. § 893.13(1) were controlled substance offenses for purposes of the career offender enhancement. See id . at

Case: 14-15619 Date Filed: 04/12/2016 Page: 18 of 2119 1267

- 68; Vega

- Castillo , 540 F.3d at 1236. Accordingly, the district court properly applied a career

- offender enhancement. Finally, we reject McKinley ’s argument that his sentences of life imprisonment were substantively unreasonable. In reviewing the “‘substantive reasonableness of [a] sentence imposed under an abuse

- of

- discretion standard,’” we consider the “‘totality of the circumstances.’” Pugh , 515 F.3d at 1190 (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a). 3 “[W]e will not second guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)] 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) (quotation, alteration and emphasis omitted). We will vacate a sentence only if the district c ourt (1) d id not account for a factor that should have received significant weight, (2) g ave significant weight to an irrelevant or improper factor, or (3)

3 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect f or 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 ca re; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements 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).

Case: 14-15619 Date Filed: 04/12/2016 Page: 19 of 2120 commit ted a clear error of judgment in balancing the sentencing factors

. United States v. Irey , 612 F.3d 1160, 11 89 (11th Cir. 2010) (en banc)

. While we do not automatically presume a sentence falling within the guideline range to be reasonable, we ordinarily expect that sentence to be reasonable. United States v. Talley , 431 F.3d 784, 788 (11th Cir. 2005). The party challenging the sentence bears the burden to show it is unreasonable. United States v. Tome , 611 F.3d 1371, 1378 (11th Cir. 2010). McKinley’s two life sentences are not substantively unreasonable. F or starters, life sentences are within his guidelines range, which means that we expect them to be reasonable. In addition, the record reveals that the district court considered mitigating factors, such as McKinley’s difficult youth, past sexual abuse, mental health issues, and his potential to obtain a profession and become a productive member of society. It also considered Wilson’s prior voluntary prostitution and the small scale of McKinley’s sex

- trafficking scheme as mitigating factors. After look ing at the natu re and circumstances of the offense , the court determined that McKinley’s victimization of Wilson was a significant aggravating factor, as well as McKinley’s extensive prior criminal history. It then weighed the aggravating and mitigating factors and dete rmined that life sentences were fair and just. In short, the district court properly weighed all the relevant factors, and did

Case: 14-15619 Date Filed: 04/12/2016 Page: 20 of 2121 not commit a clear error in judgment when it balance d the mitigating and aggravating factors. W e affirm McKinley’s convictions and sentences. AFFIRMED

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