[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 14193 Non

- Argument Calendar

________________________ D.C. Docket No. 8:12

- cr - 00041

- VMC

- TBM

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus EMILIEN CAMILLE, Defendant

- Appellant.

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

________________________ (September 4, 2014) Before HULL, MARCUS, and FAY, Circuit Judges. PER CURIAM:

Case: 13-14193 Date Filed: 09/04/2014 Page: 1 of 102 Emilien Camille appeals his 120

- month sentence, following his pleading guilty to three counts of distribution of cocaine base, distribution of 28 or more grams of cocaine base, and conspiracy to possess with intent to distribute cocaine. We affirm.
I. BACKG ROUND
Between August and September 2011, an undercover Polk County Sheriff’s Office detective purchased crack cocaine from Camille on three occasions. Later in September, Camille was stopped for a traffic violation. During a search, authorities found cr ack cocaine in the center console, $4 , 990 inside the car, $484 on Camille’s person, and cocaine and crack cocaine in the gas tank. Camille admitted he had purchased the drugs about ten minutes before being stopped, he had planned to sell the drugs, and he had sold drugs before. Because he agreed to cooperate with federal authorities, he was not taken in to custody

. In January 2013, a confidential informant (“CI”) with the Hillsborough County Sheriff’s Office and an undercover officer from the Tampa Police Department purchased 320 grams of cocaine from Gilberto Lopez, Camille’s codefendant, in exchange for $9 , 900. The officer arrested Lopez immediately after the transfer. Lopez told authorities Camille had p rovided him with the money to purchase the drugs and had been waiting nearby. Additionally, d uring the drug transaction and the interview, Camille had called Lopez several times.

Case: 13-14193 Date Filed: 09/04/2014 Page: 2 of 103 When authorities found Camille, he told them, because he had fallen on hard times, Lopez was bringing him some money. Camille , however, could not explain why they need ed to transfer the money in Hillsborough County rather than Polk County , where they both lived. After being told Lopez was in police custody and had said he and C amille were attempting to purchase cocaine, Camille initially denied any drug a ctivity. Shortly thereafter, Camille changed his story and said he was in Hillsborough working with drug

- task

- force agents. While he initially said the agents knew about the d eal, he retracted that statement and said he planned on telling them about the deal when he returned to Polk County. In February 2012, a federal grand jury returned an indictment charging Camille with three counts of distribution of cocaine base, in violat ion of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Counts One through Three”); distribution of 28 or more
grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (“Count Four”); and conspiracy to possess with intent to distribute cocaine, in violati on of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846 (“Count Five”). Camille pled guilty to all five counts without a plea agreement. Before sentencing, the government filed an information and notice of Camille’s prior drug convictions, pursuant to 21 U.S.C. § § 851 and 841(b)(1)(B), (b)(1)(C), and requested an enhanced sentence. T he presentence investigation report “(PSI”) showed Camille had an offense level of 23 and a criminal history

Case: 13-14193 Date Filed: 09/04/2014 Page: 3 of 104 category of III, result ing in a Sentencing G uideline s range of 57 to 71 months of imprisonment. Because of the § 851 enhancement, he ha d a mandatory

- minimum
sentence of ten years for Coun t Four and, his G uideline s range for all counts became ten years. Camille objected to the enhanced penalty and argued th e district judge was required to hold a hearing to determine whether his prior drug convictions were valid for purposes of § 851. At sentencing, however, Camille affirmatively abandoned his challenge to the § 851 enhancement.
T he government noted at sentencing, after Camille had been indicted and pled guilty, the U nited S tates Attorney General had initiated a new policy, which outlined the types of cases in which the government should seek enhanced
sentences. E ven under the new policy, t he government argued Camille was subjected to the same enhanced ten

- year , mandatory

- minimum sentence . Camille did not object to the § 851 enhancement based on that policy. The district judge sentenced Camille to 120 months of imprisonment on each
count to run concur rently. The judge noted she had imposed the mandator y minimum sentence of ten years ; because Camille had ple d guilty, she did not impose the greater sentence she had considered. Camille did not raise any objections to his sentence.

Case: 13-14193 Date Filed: 09/04/2014 Page: 4 of 105 II. DISCUSSION
A. Complian ce with U nited S tates Department of Justice Policy
F or the first time on appeal, Camille argues the district judge violated his Fifth and Sixth Amendment due process rights by failing to hold a hearing to

ensure the government had complied with the new U united S tates Department of Justice (“Justice Department”) policy regarding charging mandatory

- minimum
pe nalties in certain drug cases in seeking a 21 U.S.C. § 851 enhancement,

. We review de novo properly preserved constitutional challenges to a sentence. United States v. Weeks , 711 F.3d 1255, 1259 (11th Cir.) (per curiam) , cert. denied , 134 S. Ct. 311 (2013). Because Camille did not raise a due process argument or object to the § 851 enhancement based on the Justice Department policy in district court , we review only for plain error. Id. at 1261. 1 “Generally, there can be no plain error where there is no precedent from the Supreme Court or this C ourt directly resolving an issue.” Id. ( citation, internal quotation marks , and alterations omitted).
On August 12, 2013, the U nited S tates Attorney General issued a memorandum regarding the Justice Department’s policy on charging mandatory

minimum sentences for certain nonviolent, low

- level drug offenders.

1 Camille argues we should review this claim de novo , because of 21 U.S.C. § 851 noti ce’s “jurisdictional nature.” Appellant’s Br

. at 13 . This argument fails, because Camille has not challenged the d istrict judge’s jurisdiction.

Case: 13-14193 Date Filed: 09/04/2014 Page: 5 of 106 Memorandum to the U.S. Att’ys & Assistant Att’y Ge n. for the Criminal Div.: Dep’t Policy on Charging Mandatory Minimum Sentences & Recidivist Enhancements in Certain Drug Cases ( Aug. 12, 2013) (“ August 12 Memorandum ”). The memorandum instructs prosecutors to decline to charge the drug quantity necessary to trigger a mandatory minimum sentence if the defendant meets certain criteria. It instructs prosecutors to “decline to file an information pursuant to 21 U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions.” Id. at 3. It further states : “The policy set forth herein is not intended to create or confer any rights, privileges, or benefits in any matter, case, or proceeding.” Id. at 2 n.2. Neither the Supreme Court nor this c ourt has analyzed whet her a district judge must hold a hearing to determine whether the government has complied with the policies and procedures set forth in the August 12 M emorandum. W e have noted : “Justice Department policies . . . are merely matters relating to the internal operations of the Justice Department and create no enforceable right on the part of a criminal defendant.” United States v. Bagnell , 679 F.2d 826, 832 (11th Cir. 1982) ( recognizing it was “solely within the province of the Justice Department to determine whether an internal policy against forum shopping in obscenity cases should bar prosecution in a given case”).

Case: 13-14193 Date Filed: 09/04/2014 Page: 6 of 107 The district judge did not plainly err by failing to hold a hearing to determine whether the government had complied with the August 12
M emora ndum. Because n either the Supreme Court nor this c ourt has addressed this issue, even if there was error, it was not plain. Weeks , 711 F.3d at 1261 (recognizing there generally can be no plain error when there is no binding precedent directly resolving a n issue) . Moreover, the Aug ust 12 M emorandum
states it does not create or confer any rights or privileges to defendants in criminal

cases. August 12 Memorandum at 2 n.2. W e have noted other Justice Department policies relat ing to its internal operations create no enforceable rights. Bagnell , 679 F.2d at 832. T he district judge did not plainly err by failing to ensure the government had complied with the August 12 M emorandum.
B. Reasonableness of Sentence Camille argues his 120

- month total sentence is procedurally unreasonable, because (1) the district judge did not consider the government’s compliance with the August 12 M emorandum, and (2) the judge erroneously applied the 120

- month enhanced penalty of Count Four to the other counts. He also argues his sentence is substantively unreasonable, because the sentence did not achieve the purposes of sentencing. We review the reasonableness of a district judge’s sentence through a
two

- step process using a deferential abuse

- of

- discretion st andard of review. Gall Case: 13-14193 Date Filed: 09/04/2014 Page: 7 of 108 v. United States , 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). First, we determine whether the district judge committed any procedural error, such as “failing to calculate (or improperly calculating) the Guide lines range.” Id. Second, we analyze whether the sentence is substantively reasonable in view of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Id. 2 When there are multiple counts of conviction, the sentence imposed on each

co unt is the “total punishment” as calculated under the relevant portion of the Sentencing Guidelines. U.S.S.G. § 5G1.2(b). 3 The defendant’s G uideline s range on the Sentencing Table may be affected or restricted by a statutory mandatory

minimum sentence in a multiple

- count case. Id. § 5G1.2, cmt. n.3(B ). Where “a statutorily required minimum sentence on any count is greater than the maximum

2 The § 3553(a) factors to be considered by a sentencing judge include, among others: (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 for the law, and to provide just punishment for the offens e; (3) the need to provide the defendant with needed medical care or other correctional treatment; (4) the need to protect the public from further crimes of the defendant; and (5) the applicable Sentencing G uidelin e s range. 18 U.S.C. § 3553(a).

3 Section 5G1

. 2 ( b ) states: “Except as otherwise required by law ( see § 5G1.1(a),(b)), the sentence imposed on each other count shall be the total punishment as determined in accordance with Part D of Chapter Three, and Part C of this Chapter.” U.S.S.G. § 5 G1

. 2 ( b ). Part D of Chapter Three addresses how to group multiple counts of conviction in order to determine the combined offense level used to calculate the advisory G uidelines range. See U.S.S.G. §§ 3D1.1

- 3D1.5. Part C of Chapter 5 addresses the impos ition of terms of imprisonment using the Sentencing Table and the application of safety

- valve relief to certain statutory mandatory

minimum sentences

. See U.S.S.G. §§ 5C1.1 to 5C1.2.

Case: 13-14193 Date Filed: 09/04/2014 Page: 8 of 109 of the applicable guideline range, the statutorily required minimum sentence on that count shall be the guideline sentence on all counts.” Id. A district judge is not authorized to sentence a defendant below the statutory mandatory minimum , unless the government filed a substantial

- assistance motion under 18 U.S.C. § 3553(e ) and U.S.S.G. § 5K1.1 or the defendant fall s within the safety

- valve of 18 U.S.C. § 3553(f). United States v. Castaing

- Sosa , 530 F.3d 1358, 1360 (11th Cir. 2008) (per curiam) . A defendant must have no more than one criminal

- history point to receive safety

- valve relief. 18 U.S.C. § 3553(f)(1). Camille’s first procedural unreasonableness argument regarding the August
12 M emorandum l acks merit for all the reasons addressed . His second procedural unreasonableness argument fails, because the Sentencing G uideline s range for Counts One, Two, Three, and Five was below the statutorily required mandatory

minimum penalty for Count Four. As a result, U.S.S.G. § 5G1.2(b) called for a
ten

- year sentence “on all counts.” U.S.S.G. § 5G1.2, cmt. n.3(B)

. Camille’s substantive unreasonableness argument fai ls, because the district judge lacked discretion to sentence him below the statutory mandatory

- minimum
sentence of ten years of imprisonment. See Castaing

- Sosa , 530 F.3d at 1360 (“ It is well

- settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government filed a substantial assistance motion . . . or the defendant falls within the safety

- valve . . . .”). The government

Case: 13-14193 Date Filed: 09/04/2014 Page: 9 of 1010 has not filed a substantial

- assistance motion, and Camille was not e ntitled to safety

- valve relief, because he had five criminal

- history points. Id. at 1360

- 61, n.4 ;

see also 18 U.S.C. § 3553(f)(1) (requiring the defendant to have no more than one criminal history point to receive safety

- valve relief). Therefore, Camille ’s 120

- month

- imprisonment sentence was appropriate. AFFIRMED. Case: 13-14193 Date Filed: 09/04/2014 Page: 10 of 10