[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-14193

Non-Argument Calendar

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D.C. Docket No. 8:12-cr-00041-VMC-TBM-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

EMILIEN CAMILLE, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 4, 2014)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM: 

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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. BACKGROUND

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 crack 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 into 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 provided him with the money to 

purchase the drugs and had been waiting nearby. Additionally, during the drug 

transaction and the interview, Camille had called Lopez several times.

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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 needed 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 Camille were attempting to purchase cocaine, Camille initially 

denied any drug activity. 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 deal, 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 violation 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 violation 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. The presentence investigation 

report “(PSI”) showed Camille had an offense level of 23 and a criminal history 

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category of III, resulting in a Sentencing Guidelines range of 57 to 71 months of 

imprisonment. Because of the § 851 enhancement, he had a mandatory-minimum 

sentence of ten years for Count Four and, his Guidelines range for all counts 

became ten years. Camille objected to the enhanced penalty and argued the 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. 

The government noted at sentencing, after Camille had been indicted and 

pled guilty, the United States Attorney General had initiated a new policy, which 

outlined the types of cases in which the government should seek enhanced 

sentences. Even under the new policy, the 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 concurrently. The judge noted she had imposed the mandatoryminimum sentence of ten years; because Camille had pled guilty, she did not 

impose the greater sentence she had considered. Camille did not raise any 

objections to his sentence. 

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II. DISCUSSION

A. Compliance with United States Department of Justice Policy

For 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 Uunited States Department of 

Justice (“Justice Department”) policy regarding charging mandatory-minimum 

penalties 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 Court directly 

resolving an issue.” Id. (citation, internal quotation marks, and alterations 

omitted). 

On August 12, 2013, the United States Attorney General issued a 

memorandum regarding the Justice Department’s policy on charging mandatoryminimum 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 

notice’s “jurisdictional nature.” Appellant’s Br. at 13. This argument fails, because Camille has 

not challenged the district judge’s jurisdiction.

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Memorandum to the U.S. Att’ys & Assistant Att’y Gen. 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 court has analyzed whether 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 Memorandum. We 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”). 

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The district judge did not plainly err by failing to hold a hearing to 

determine whether the government had complied with the August 12 

Memorandum. Because neither the Supreme Court nor this court 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 an issue). Moreover, the August 12 Memorandum 

states it does not create or confer any rights or privileges to defendants in criminal 

cases. August 12 Memorandum at 2 n.2. We have noted other Justice Department 

policies relating to its internal operations create no enforceable rights. Bagnell, 

679 F.2d at 832. The district judge did not plainly err by failing to ensure the 

government had complied with the August 12 Memorandum. 

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 Memorandum, 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 standard of review. Gall 

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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 Guidelines 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 

count 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 Guidelines range 

on the Sentencing Table may be affected or restricted by a statutory mandatoryminimum 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 offense; (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

Guidelines 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. § 5G1.2(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 Guidelines range. See U.S.S.G. §§ 3D1.1-

3D1.5. Part C of Chapter 5 addresses the imposition of terms of imprisonment using the 

Sentencing Table and the application of safety-valve relief to certain statutory mandatoryminimum sentences. See U.S.S.G. §§ 5C1.1 to 5C1.2.

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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 falls 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 Memorandum lacks merit for all the reasons addressed. His second procedural 

unreasonableness argument fails, because the Sentencing Guidelines range for 

Counts One, Two, Three, and Five was below the statutorily required mandatoryminimum 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 fails, 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 

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has not filed a substantial-assistance motion, and Camille was not entitled 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.

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