[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-16085

Non-Argument Calendar

________________________

D.C. Docket No. 9:12-cr-80054-WJZ-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JOSNY CHARLESTAIN, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(August 5, 2013)

Before TJOFLAT, DUBINA, and PRYOR, Circuit Judges.

PER CURIAM: 

Case: 12-16085 Date Filed: 08/05/2013 Page: 1 of 8 
2

Appellant Josny Charlestain appeals his 108-month above guideline-range 

total sentence imposed by the district court for possession of a firearm and 

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and 

possession of a firearm and ammunition by a person subject to a domestic violence 

order, in violation of 18 U.S.C. § 922(g)(8). He argues that the district court erred 

by admitting evidence about an unrelated 2009 murder for which he was charged 

but not prosecuted, applying an aggravating role sentencing enhancement, and 

imposing an unreasonable sentence which was far above the Guideline range. We 

address each point in turn.

I.

We review a “district court’s application of the sentencing guidelines de 

novo and its findings of fact for clear error.” United States v. Grant, 397 F.3d 

1330, 1332 (11th Cir. 2005). Where a defendant raises a sentencing issue for the 

first time on appeal, plain error review applies. See United States v. Aguillard, 

217 F.3d 1319, 1320 (11th Cir. 2000). “For this Court to correct plain error: 

(1) there must be error; (2) the error must be plain; and (3) the error must affect 

substantial rights.” Id. at 1320 (internal quotation marks omitted). 

Federal law provides that “[n]o limitation shall be placed on the information 

concerning the background, character, and conduct of a person convicted of an 

offense which a court of the United States may receive and consider for the 

Case: 12-16085 Date Filed: 08/05/2013 Page: 2 of 8 
3

purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661 (emphasis 

added). That includes hearsay, so long as it is sufficiently reliable, and evidence 

that may not be admissible at trial, as long as the defendant has a chance to rebut 

the evidence. United States v. Baker, 432 F.3d 1189, 1253-54 & n.68 (11th Cir. 

2005). The Supreme Court has noted that, at sentencing, the district court has 

broad discretion to consider “the fullest information possible concerning the 

defendant’s life and characteristics.” Pepper v. United States, 562 U.S. __, __, 131 

S. Ct. 1229, 1235-36 (2011) (internal quotation marks omitted). We have held that 

a court may even consider relevant acquitted conduct so long as that conduct is 

proven by a preponderance of the evidence. See United States v. Faust, 456 F.3d 

1342, 1348 (11th Cir. 2006). 

The Guidelines similarly provide that in deciding whether to sentence a 

defendant within or outside of the Guideline range, the court can consider any 

information about the defendant’s background, character, and conduct, unless it is 

otherwise illegal to do so. U.S.S.G. § 1B1.4. Moreover, under Federal Rule of 

Criminal Procedure 32, the court may allow the parties to introduce evidence 

regarding objections to the presentence investigation report (“PSI”) during 

sentencing. Fed.R.Crim.P. 32(i)(2).

We conclude from the record that the district court did not err, plainly or 

otherwise, in admitting evidence about the 2009 homicide because it was relevant 

Case: 12-16085 Date Filed: 08/05/2013 Page: 3 of 8 
4

to the district court’s consideration of the 18 U.S.C. § 3553(a) factors, such as 

Charlestain’s background and characteristics, and the need to provide adequate 

deterrence, prevent additional gun-related crimes, and protect the public. 

II.

We review for clear error the district court’s determination that a defendant 

is subject to an aggravating-role enhancement under U.S.S.G. § 3B1.1(c). United 

States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000). We review the district 

court’s application and legal interpretations of the Guidelines de novo. United 

States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010).

Section 3B1.1(c) subjects a defendant to a two-level enhancement “[i]f the 

defendant was an organizer, leader, manager, or supervisor in any criminal 

activity” [other than one that involves five or more participants or is otherwise 

extensive]. U.S.S.G. § 3B1.1(c). A defendant’s assertion of control over only one 

other participant is sufficient to sustain a § 3B1.1(c) role enhancement. 

Id. § 3B1.1, comment. (n.2); United States v. Mandhai, 375 F.3d 1243, 1248 

(11th Cir. 2004). A “participant” is a person who is criminally responsible for the 

offense, even if not convicted. U.S.S.G. § 3B1.1, comment. (n.1). In Mandhai, we

determined that the district court properly applied a § 3B1.1(c) enhancement where 

the defendant recruited one other individual into a terrorist plot, prompted that 

Case: 12-16085 Date Filed: 08/05/2013 Page: 4 of 8 
5

individual to purchase weapons, and briefed him on the bombing plan. Mandhai, 

375 F.3d at 1248.

We conclude from the record that the district court did not clearly err by 

applying the aggravating role enhancement because it was entitled to conclude that 

Charlestain directed his wife to buy the guns involved in the instant offenses. 

III.

We review the sentence imposed by the district court for reasonableness and 

evaluate the substantive reasonableness of a sentence for an abuse of discretion. 

Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007); United States v. 

Talley, 431 F.3d 784, 785 (11th Cir. 2005). Application of a variance is likewise 

reviewed for abuse of discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597-98. After 

Irizarry v. United States, 553 U.S. 708, 714-16, 128 S. Ct. 2198, 2202-04 (2008), a 

district court’s grant of a variance does not require prior notice of the grounds 

contemplated for a sentence above the range. We will only vacate a sentence when 

“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.” United States v. Irey, 612 F.3d 

1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted). We

review only a defendant’s final sentence, and not each individual decision made 

Case: 12-16085 Date Filed: 08/05/2013 Page: 5 of 8 
6

during the sentencing process, for reasonableness. See United States v. Dorman, 

488 F.3d 936, 938 (11th Cir. 2007). 

When reviewing a sentence, we must first determine that the “district court 

committed no significant procedural error,” United States v. McGarity, 669 F.3d 

1218, 1263 (11th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct. 

378 (2012), and a sentence may be considered procedurally reasonable where the 

district court considered the parties’ arguments and provided a reasoned basis for 

its choice of sentence, see Rita v. United States, 551 U.S. 338, 356-58, 127 S. Ct. 

2456, 2468-69 (2007). If the district court’s decision is procedurally reasonable, 

our analysis then turns to the substantive reasonableness of the sentence. Gall, 552 

U.S. at 51, 128 S. Ct. at 597. We review the totality of the facts and circumstances 

to gauge for substantive error. Irey, 612 F.3d at 1189-90. “[T]he party who 

challenges the 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).” 

Talley, 431 F.3d at 788. The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and 

characteristics of the defendant; (2) the need to reflect the seriousness 

of the offense, to promote respect for the law, and to provide just 

punishment for the offense; (3) the need for deterrence; (4) the need to 

protect the public; (5) the need to provide the defendant with needed 

educational or vocational training or medical care; (6) the kinds of 

sentences available; (7) the Sentencing Guidelines range; (8) pertinent 

policy statements of the Sentencing Commission; (9) the need to 

Case: 12-16085 Date Filed: 08/05/2013 Page: 6 of 8 
7

avoid unwanted sentencing disparities; and (10) the need to provide 

restitution to victims.

Id. at 786 (summarizing 18 U.S.C. § 3553(a)). In United States v. Scott, 426 F.3d 

1324 (11th Cir. 2005), we noted that, “nothing in [United States v.] Booker[, 543 

U.S. 220, 125 S. Ct. 738 (2005),] or elsewhere requires the district court to state on 

the record that it has explicitly considered each of the § 3553(a) factors or to 

discuss each of the § 3553(a) factors.” Id. at 1329. An acknowledgment that the 

court considered the defendant’s arguments and the § 3553(a) factors is adequate 

under Booker. Talley, 431 F.3d at 786. 

“A district court abuses its discretion when it . . . gives significant weight to 

an improper or irrelevant factor . . . .” Irey, 612 F.3d at 1189 (internal quotation

marks omitted). A sentence imposed well below the statutory maximum is an 

indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 

1324 (11th Cir. 2008). When uncertainty exists as to whether the district court 

applied an upward variance or an upward departure, the court considers: 

(1) whether the court referenced a particular Guideline departure provision; and 

(2) whether the court based its decision on a belief that the Guidelines were not 

adequate. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009). 

We conclude from the record that Charlestain’s total sentence was 

procedurally and substantively reasonable. First, the record demonstrates that the 

district court imposed an upward variance rather than a departure, and as to 

Case: 12-16085 Date Filed: 08/05/2013 Page: 7 of 8 
8

procedural reasonableness, it correctly calculated the advisory Guideline range. 

Charlestain has not met his burden of showing that his sentence was substantively 

unreasonable. The court held two sentencing hearings, heard testimony from 

numerous witnesses, considered the parties’ arguments, and discussed the 

§ 3553(a) factors before deciding that a sentence above the Guideline range was 

warranted to reflect the full extent of Charlestain’s criminal history, violent 

characteristics, danger to the public, and the need for deterrence. In noting that it 

had considered the parties’ positions, the Guidelines, and the statutory factors, the

court satisfied Talley. Charlestain’s sentence was also well below the statutory 

maximum. 

For the above-stated resons, we affirm Charlestain’s total sentence.

AFFIRMED. 

Case: 12-16085 Date Filed: 08/05/2013 Page: 8 of 8