FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 7, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15022

Non-Argument Calendar

________________________

D. C. Docket No. 07-00057-CR-3-MCR

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVID ISAIAH ROGERS, 

a.k.a. Rain, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(August 7, 2008)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
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David Isaiah Rogers appeals his 236-month sentence for conspiracy to

distribute and possess with intent to distribute 1,000 kilograms or more of a

mixture and substance containing a detectable amount of marijuana, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii) and 846. Rogers makes several arguments

on appeal. First, Rogers contests the amount of drugs to which the district court

held him accountable, and he also asserts that the court should have “totally

excluded” the amount of cocaine from his offense level calculation, imposed as

relevant conduct, because Rogers provided the information about the conspiracy’s

cocaine involvement to law enforcement agents. Second, Rogers argues that the

court clearly erred by finding that he committed the instant offense while on

probation. Third, Rogers contests the court’s application of an obstruction of

justice enhancement and its denial of reductions for acceptance of responsibility

and safety-valve relief. Fourth, Rogers argues that his sentence is unreasonable. 

For the reasons set forth more fully below, we affirm. 

I.

We review for clear error the district court’s factual determination of the

drug quantity for which Rogers is accountable. United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir. 2005). “For a factual finding to be ‘clearly erroneous,’

we, ‘after reviewing all of the evidence, must be left with a definite and firm
3

conviction that a mistake has been committed.’” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (citation omitted). 

Because Rogers argues for the first time that the district court violated

§ 1B1.8, we review that issue only for plain error. “An appellate court may not

correct an error the defendant failed to raise in the district court unless there is:

(1) error, (2) that is plain, and (3) that affects substantial rights.” Rodriguez, 398

F.3d at 1298 (quotation and citation omitted). “If all three conditions are met, an

appellate court may then exercise its discretion to notice a forfeited error, but only

if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. 

Rogers’s argument that he is responsible for less than 1,000 kilograms of

marijuana is without merit in light of the fact that he admitted during his plea

hearing and in his written and signed plea agreement that he was responsible for

more than 1,000 kilograms of marijuana. In his brief on appeal, he again

acknowledges that he pled guilty to involvement with over 1,000 kilograms of

marijuana. Thus, the district court did not err by holding Rogers accountable for

an amount of marijuana that was consistent with, and, in this case, less than, the

amount to which he admitted. See United States v. Wilson, 884 F.2d 1355, 1356

(11th Cir. 1989) (stating that “[t]he findings of fact of the sentencing court may be
4

based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the

sentencing hearing”). 

Even though Rogers admitted to being responsible for at least 1,000

kilograms of marijuana, the district court held him accountable for a lesser amount

of marijuana. Specifically, the court found that Rogers was accountable for a total

of 1,067.7 kilograms of marijuana, which consisted of 911 kilograms of marijuana

and 156.7 kilograms of marijuana-equivalent cocaine. Although the charge to

which Rogers pled guilty did not specify cocaine involvement, the record,

nonetheless, supports the court’s finding with respect to the amount of cocaine. 

Co-conspirator John Mikhael testified that he sold Rogers 125 grams of

cocaine on 4 occasions for a total of 500 grams, and 1 ounce on 10 occasions for a

total of 283.5 grams. Although Rogers testified that John Mikhael provided him

only two ounces of cocaine, the district court’s determination to credit John

Mikhael’s testimony was within its exclusive province. See United States v.

Smith, 480 F.3d 1277, 1280-81 n.2 (11th Cir.), cert. denied, 128 S.Ct. 175 (2007)

(applying the principle that credibility determinations are the exclusive province of

the fact finder). The bottle of inositol and the jeweler’s baggies that were found in

Rogers’s residence during a search corroborated the court’s findings. 
5

Significantly, the court limited its finding to those amounts of cocaine that were

directly attributable to Rogers. See U.S.S.G. § 1B1.3, comment. (n.2) (specifying

that in a case involving drugs, the conspirator’s relevant conduct includes amounts

directly attributable to the conspirator and “all reasonably foreseeable quantities of

[drugs] that were within the scope of the criminal activity that [the conspirator]

jointly undertook”). Thus, the court did not clearly err in finding that Rogers’s

“relevant conduct” for purposes of calculating his base offense level included

156.7 kilograms of marijuana based on 783.5 grams of cocaine. See U.S.S.G.

§ 1B1.3 & comment. (n.2); Rodriguez, 398 F.3d at 1296. 

Finally, Rogers’s argument concerning § 1B1.8(a) is without merit for at

least two reasons. First, the government was entitled to revoke the plea agreement

based upon Rogers’s untruthful testimony about the cocaine. Because cause

existed for revocation of the agreement, the government was not required to

withhold Rogers’s statements concerning the conspiracy’s involvement with

cocaine. See U.S.S.G. § 1B1.8(a). Second, although Rogers provided information

about the conspiracy’s cocaine involvement, the record reflects that Rogers’s

“information” confirmed information that was already known by the authorities. 

Thus, information that the conspirators were involved with cocaine was obtained

from independent sources. See United States v. Pham, 463 F.3d 1239, 1244 (11th
 Rogers’s six-month probationary sentence for his 2005 possession of marijuana state 1

conviction was imposed on January 1, 2005, and expired on July 3, 2005.

6

Cir. 2006) (concluding that, “so long as the information is obtained from

independent sources or separately gleaned from codefendants, it may be used at

sentencing without violating § 1B1.8”). Accordingly, the district court did not err,

much less plainly err, by failing to sua sponte find a violation of § 1B1.8(a).

II.

When the defendant objects to his criminal history points in the district

court, we review the court’s factual findings for clear error and its application of

the Sentencing Guidelines to those facts de novo. United States v. Phillips, 413

F.3d 1288, 1292 (11th Cir. 2005).

The Sentencing Guidelines instruct that two points are added to the

defendant’s criminal history score “if the defendant committed the instant offense

while under any criminal justice sentence, including probation, parole, [or]

supervised release . . . .” U.S.S.G. § 4A1.1(d). The Commentary reiterates that

“[t]wo points are added if the defendant committed any part of the instant offense

(i.e., any relevant conduct) while under any criminal justice sentence, including

probation, parole, [or] supervised release . . . .” Id., comment. (n.4).

The district court did not clearly err by finding that Rogers committed the

instant offense while he was on probation. The court’s finding was consistent 1
 The plea agreement’s factual basis specified that Rogers participated in the conspiracy 2

during the time frame alleged in the indictment. The indictment specified that the “time frame” was

between January 2004 and April 5, 2007. 

 We note that, in his brief, Rogers acknowledges that he was “involved” in the conspiracy

3

during the time he was on probation.

7

with Rogers’s guilty plea and his admission to the factual basis contained in the

written plea agreement, which Rogers also signed. Nonetheless, aside from 2

Rogers’s own admissions, other evidence also supports Rogers’s involvement

during that time. Specifically, the court credited John Mikhael’s testimony that he

began providing Rogers with marijuana sometime in 2004. Accordingly, because

Rogers committed the instant offense while he was on probation, the court properly

added two points to Rogers’s criminal history score. See U.S.S.G. § 4A1.1(d). 3

III.

A. Safety-Valve

We review for clear error a district court’s factual determinations to grant

safety-valve relief. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). 

The Guidelines’ “safety-valve” provision permits the district court to impose

a sentence below a statutory minimum sentence if it finds that the defendant meets

the five requirements set forth in U.S.S.G. § 5C1.2(a)(1)-(5). See also 18 U.S.C.

§ 3553(f)(1)-(5) (same). The eligibility requirement relevant to the instant case is

that “the defendant does not have more than [one] criminal history point . . . .” 
8

U.S.S.G. § 5C1.2(a)(1); see also 18 U.S.C. § 3553(f)(1) (same).

The district court did not clearly err because Rogers is ineligible for safetyvalve relief in light of the fact that he has three criminal history points. See

U.S.S.G. § 5C1.2(a)(1); 18 U.S.C. § 3553(f)(1). 

B. Obstruction of Justice

When a sentencing enhancement for obstruction of justice is imposed, we

review the district court’s factual findings for clear error and its application of the

Guidelines to those facts de novo. United States v. Massey, 443 F.3d 814, 818

(11th Cir. 2006). 

Section 3C1.1 of the Sentencing Guidelines provides for a two-level

sentence enhancement:

If (A) the defendant 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 (B) the obstructive conduct related to (i) the

defendant’s offense of conviction and any relevant conduct; or (ii) a

closely related offense . . . .

U.S.S.G. § 3C1.1. 

Application Note 4 in the Commentary provides a “non-exhaustive list of

examples of the types of conduct to which this adjustment applies.” Id., comment.

(n.4). Some examples to which the enhancement applies include, “committing,

suborning, or attempting to suborn perjury” and “providing materially false
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information to a judge or magistrate.” Id., comment. (n.4(b), (f)). “Perjury, for

purposes of applying [§ 3C1.1], has been defined by the United States Supreme

Court as ‘false testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.’” United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quoting

United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d

445 (1993)). “Material” evidence “means evidence, fact, statement, or information

that, if believed, would tend to influence or affect the issue under determination.” 

U.S.S.G. § 3C1.1, comment. (n.6).

The district court did not clearly err in applying the obstruction of justice

enhancement. John Mikhael testified that he sold Rogers cocaine “on some 14

occasions.” Rogers initially denied any involvement with cocaine and then, at his

sentencing hearing, admitted to only two occasions in which John Mikhael

“fronted him” cocaine. Crediting John Mikhael’s testimony, as was within its

province to do so, the court found that Rogers had falsely denied his involvement

with the cocaine-part of the conspiracy. Thus, because the issue of drug quantity

was material to Rogers’s Guidelines offense level calculation, and because Rogers

provided false testimony concerning the matter, the district court did not clearly err

by applying a two-level enhancement for obstruction of justice. See U.S.S.G.
10

§ 3C1.1 & comment. (n.4(b), (f); n.6); Singh, 291 F.3d at 763.

C. Acceptance of Responsibility

We review the district court’s determination of acceptance of responsibility

for clear error. United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir. 2004). A

defendant is entitled to a two-level reduction in his offense level if he “clearly

demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). A

defendant acts in a manner inconsistent with acceptance of responsibility when he

“falsely denies, or frivolously contests, relevant conduct that the court determines

to be true.” Id., comment. (n.1(a)). Although there may be extraordinary cases in

which adjustments under both §§ 3C1.1 (obstruction of justice) and 3E1.1 may

apply, “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or

Impeding the Administration of Justice) ordinarily indicates that the defendant has

not accepted responsibility for his criminal conduct.” Id., comment. (n.4). “The

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is entitled

to great deference on review.” Id., comment. (n.5).

The district court did not clearly err in its denial of a reduction for

acceptance of responsibility because Rogers has not demonstrated that he is

entitled to the reduction. As mentioned above, Rogers obstructed justice when he
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testified falsely at his sentencing hearing about his involvement with cocaine.

Thus, Rogers acted in a manner inconsistent with acceptance of responsibility, and

no extraordinary circumstances exist that would justify applying adjustments under

both §§ 3C1.1 and 3E1.1. See U.S.S.G. 3E1.1, comment. (n.1(a); n.4). 

IV.

“‘In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the

§ 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006)

(citation omitted). The Supreme Court recently clarified the reasonableness

standard as a review for abuse of discretion. Gall v. United States, 552 U.S. —,

128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). The district court must impose a

sentence that is both procedurally and substantively reasonable. Id. 128 S.Ct. at

597. When reviewing the sentence for procedural reasonableness, 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 from the

Guidelines range.

Id. 

A sentence may be substantively unreasonable because, inter alia, (1) it does
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“not achieve the purposes of sentencing stated in § 3553(a)”; or (2) “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.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (citations omitted). 

“Generally, when sentencing within the advisory Guidelines range, the

district court is not required to give a lengthy explanation for its sentence if the

case is typical of those contemplated by the Sentencing Commission.” United

States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). However, the 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 v. United States, 551 U.S. —, 127 S.Ct. 2456,

2468, 168 L.Ed.2d 203 (2007). Although we do not apply a presumption of

reasonableness, “ordinarily we would expect a sentence within the Guidelines

range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). The party challenging the reasonableness of a sentence “bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” Id. 

 The § 3553(a) factors include: (1) the nature and circumstances of the
13

offense and the history and characteristics of the defendant; (2) the need to reflect

the seriousness of the offense, to afford adequate deterrence, to promote respect for

the law, to provide just punishment for the offense, to protect the public, and to

provide the defendant with needed educational or vocational training or medical

care; (3) the kinds of sentences available; (4) the advisory guidelines range; (5)

pertinent Sentencing Commission policy statements; (6) the need to avoid

unwarranted sentencing disparities; and (7) the need to provide restitution to

victims. 18 U.S.C. § 3553(a)(1)-(7).

Rogers has not demonstrated that his sentence is unreasonable. The district

court correctly calculated Rogers’s Guidelines range and was not required to give a

lengthy explanation for its decision to impose a Guidelines sentence. See Livesay,

525 F.3d at 1090. Nonetheless, the record reflects that the court considered the

§ 3553(a) factors in determining an appropriate sentence.

Rogers’s 236-month sentence is at the mid-point of the Guidelines range and

well below the statutory maximum of life imprisonment. See 21 U.S.C.

§ 841(b)(1)(A); Talley, 431 F.3d at 788; United States v. Winingear, 422 F.3d

1241, 1246 (11th Cir. 2005) (comparing, as one indication of reasonableness, the

actual prison term imposed against the statutory maximum). The court considered

the parties’ arguments, as well as Rogers’s personal statement, and the court had a
 We lack jurisdiction to review Rogers’s claim concerning the district court’s decision to 4

deny a downward departure because the record reflects that the court understood that it had authority

to impose the departure but chose not to. See United States v. Dudley, 463 F.3d 1221, 1228 (11th

Cir. 2006) (determining that we lacked jurisdiction to review a request for a departure when nothing

in the record indicated that the district court believed that it did not have authority to depart

downward, and, in fact, the record indicated that the court understood it could depart, but chose not

to). 

14

reasoned basis for exercising its own legal decisionmaking authority. See Rita,

127 S.Ct. at 2468. Accordingly, Rogers has not shown that the court abused its

discretion by imposing an unreasonable sentence. See Gall, 128 S.Ct. at 594; 4

Pugh, 515 F.3d at 1191.

V.

In light of the foregoing, Rogers’s sentence is 

AFFIRMED.