[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

______ __________________ No. 17

- 11448 Non

- Argument Calendar

___________ _____________ D.C. Docket No. 3:16

- cr - 00 222

- WKW

- WC

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellant ,
vers us DENNIS MICHAEL ELDER , Defendant

- Appellee

.

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

____________________ ____ ( July 17, 2017 ) Before MARTIN , JORDAN, and ANDERSON , Circuit Judges.
PER CURIAM:

Case: 17-11448 Date Filed: 07/17/2017 Page: 1 of 72 The government appeal s Dennis Elder’s 90

- day sentence for a firearm possession offense as procedurally unreasonable. Upon review of the record and the parties’ briefs, we affirm.
I
In 2013 , Mr. Elder was arrested for his involvement in a drug

- trafficking operation. After his arrest, Mr. Elder immediately accepted responsibility for his actions and began co operating with the government. He was charged in 2016 and pled guilty to one count of possessing a firearm during a drug trafficking crime in violation of 21 U.S.C. § 924(c)(1), which carries a mandatory minimum sentence of 60 months’ imprison ment

. See U.S.S.G. § 2K2.4; PSI at ¶ 44

. Because of Mr. Elder’s cooperation, the governme nt moved f or a substantial assistance departure u nder both U.S.S.G. § 5 K1.1 and 18 U.S.C. § 3553(e). The government rec ommended a fifty percent reduction

— to 30 months’ imprisonment

— in Mr. Elder’s sentence

. At sentencing, the district court followed a three

- step process. First, t he dis trict court consulted the presentence investigation report, which indicated that Mr. Elder had no criminal history, but faced a five

- year mandatory minimum sentence for the firearm offense. The district court then calculated a n initial sentence of 60 months’ imprisonment.

Case: 17-11448 Date Filed: 07/17/2017 Page: 2 of 73 Second , the district court held a sidebar conference to hear testimony from the government on its substantial assistance motion. Following a task force agent ’s testimony about Mr. Elder’s assistance, the district court g ranted the government’s motion and set his post

- departure guidelines range at 30 months’ imprisonment. 1
Third , after announcing the post

- departure range and returning to open court , the district court heard from Mr . Elder and his counsel , considered the sentencing factors found in § 3553(a) , and imposed a sentence of 90 days’ imprisonment , to be followed by five years of supervised release

. In pertinent part, th e district court referenced Mr. Elder’s history and relevant characteristics , the seriousness of the offense, the need to promote respect for the law, the need for deterrence, and the need to avoid sentencing disparities. See § § 3553(a)(1), (a) (2)(A)

- (B), (a) (6). The government objected to Mr. Elder’s sentence as both procedurally and substantively unreasonable. The district court overruled the government’s objections, and this appeal followed.
I I We review the pr ocedural reasonableness of a sentence , s ee United States

v. Gibson , 708 F.3 d 1256, 1275 (11th Cir. 2013) , and the extent of a substantial

1 W e will not discuss th e specifics of the sidebar discussion because portions of the sentencing transcript have been sealed . T he district court agreed with the government’s assessme nt of Mr. Elder’s assistance because it set the post

- departure range at 30 months, just as the government had recommended.

Case: 17-11448 Date Filed: 07/17/2017 Page: 3 of 74 assistance departure, see United States v. McVay , 447 F .3d 1348, 1353 (11th Cir. 2006) , for abuse of discretion

. 2
II I When the government files a substantial assistance motion under § 5K1.1 and § 3553(e), our precedent sets out various principles . I n deciding whether to grant a § 5K1.1 motion to depart below an advisory guidelines range, a district court is only permitte d to consider factors related to a defendant ’s assistance. See United States v. Crisp , 454 F.3d 1285, 1289 (11th Cir. 2006) (explaining that , alth ough the list of factors i n § 5K1.1 is not exhaustive, a “ sentence reduction [under § 5K1.1] may be based only on f actors related to the defendant’ s substantial assistan ce” ). Similarly , the extent of a departure below a statutory minimum under § 3553(e) “ should be based solely on a defendant’ s assistance to law enforcement .” United States v. Mangaroo , 504 F. 3d 1350, 1355 (11th Cir. 2007) (emphasis in original)

. When the government moves for a downward departure, however, it “ has no control over whether and to what extent the distr ict court will depart from the [advisory] [g] uidelines

. ” United States v. Livesay , 525 F.3d 1081, 1091 (11th Cir. 2008) . And , “after [a district court] has decided the length of departure warranted by the substantial assis tance motion, [it] is then obliged to take into account the

2 The government does not contend that Mr. Elder’s sentence i s substantively unre asonable on appeal and ha s therefore abandoned that argument

. See United States v. Levy , 379 F.3d 1241, 1243 (11th Cir. 2004) (noting that issues not briefed on appeal “are deemed abandoned”)

.

Case: 17-11448 Date Filed: 07/17/2017 Page: 4 of 75 advisory [g] uidelines range and the sentencing factors set forth in 18 U.S.C. § 3553(a) in fashioning a reasonable sentence .” McVay , 447 F.3d at 1356

. The government’s primary argument is that the district court committed procedural error under McVay and Mangaroo by considering non - assista nce factors before granting its motion and calculating Mr. Elder’s post

- departure range

. We disagree and conclude that those cases are distinguishable

. In McVay , 447 F.3d at 1355, the district co urt erred as a matter of law by

con sidering non

- assistance factors

— like the defendant’s “exemplary record” and
“r elationship with this daughter”

— in deciding whether to grant the government’s substantial assistance motion. Moreover, the record in that case “contain[ed] no indication that the sentencing judge considered an y of the § 5K1.1(a) factors ” or the government’s assessment of the defendant’s assistance. Id. at 1356 (emphasis in original). Similarly, in Mangaroo , 504 F.3d at 1355, the district court made vague references to “cooperation” but did not consider any a ssistance factors in its decision to impose a sentence below the statutory minimum under § 3553(e). Instead, the district court referenced the defendants’ criminal history, participation in the charged offense s, age s , and acceptance of responsibility. See id

. The district court also erred in Mangaroo by giving each of the defendants a sentence of

Case: 17-11448 Date Filed: 07/17/2017 Page: 5 of 76 probation, in violation of the firearm statute at issue , which expressly required a term of imprisonment. See id. at 1354.
Here , even though the district c ourt did not expressly discuss the § 5K1.1(a ) factors, t he record as a whole show s that the district court only considered the government’ s pre - sentencing motion and the task force agent ’s testimony at the hearing ( which referenced Mr. Elder’s assistance and nothing more) before granting the government’s substantial assistance motion. On this record, there is no indication that the district court relied on any inappropriate statutory or

non - statutory factor s before deciding to depart below the statutory minimum and calculating Mr. Elder’s post

- departure range at 30 months

. W e can also infer that the district court agreed with th e government’s assessment of Mr. Elder’s assistance because, although not requir e d to do so, see Livesay , 525 F.3d at 1091, the district court followed the government’s recommendation and set the post

- departure range at 30 months

. Indeed , before t he district court turned to the non - assistance factors in § 3553(a) in order to calculate Mr. Elder’s final sentence, see McVay , 447 F.3d at 1356, the governm ent expressly “request[ed] a sentence at the bottom of the range calculated by the [c]ourt in light of granting the [§ 5K1.1] and [§] 3553(e) motion

. ” D.E. 180 at 15. 3

3 T his case is also different than Mangaroo because Mr. Elder was given a 90

- day term of imprisonment rather than probation for his firearm offense. And, as noted earlier, the government has abandoned any argument that the district court’s assessment of the § 3553(a) factors led to a substantively unreasonable sentence.

Case: 17-11448 Date Filed: 07/17/2017 Page: 6 of 77 IV
Because the district court followed the guidance given in McVay , 447 F.3d
at 1356

— that is, to consider the § 3553(a) factors after deciding whether and to what extent to depart based on Mr. Elder’s assistance to the government

— we

c onclude that the district court did not commit procedural error constituting an abuse of discretion

. 4
AFFIRMED.

4 We have not squarely addressed whether a district court is permitted to use the § 3553(a) factors in order to impose a sentence below a previously

- adjusted range based on a defendant’s substantial assistance. Compare United States v. Jackson , 577 F.3d 1032, 1036 (9th Cir. 2009) (explaining that a “ court may increase a sentence on the basis of the § 3553(a) factors, but may not reduce the sentence further ” after granting a § 3553(e) departure) , with United States v. Allen , 450 F.3d 565, 570 n.5 (4th Cir. 2006) (highlighting that “[i] f the resulting departure range [under § 3553(e)] still does not serve the fac tors set forth in § 3553(a), [a] court may then elect to impo se a non - guideline [variance] sentence ” ). Given that the g overnment argues that a district court is only permitted to increase a sentence using § 3553(a) factors after granting a substantial assistance motion for the first time in its r eply brief, we exercise our discretion not to address that issue here. See ge nerally United States v. Nealy , 232 F.3d 825, 830 (11th Cir. 2000) (stating that “[p]arties must submit all issues on appeal in their initial briefs”).

Case: 17-11448 Date Filed: 07/17/2017 Page: 7 of 7