                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15320         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 18, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 9:09-cr-80101-KLR-1

UNITED STATES OF AMERICA,

         llllllllllllllllllllllllllllllllllllllll                    Plaintiff - Appellee,

                                                    versus

ROSCOEMANUEL JAMES DANIELS,
a.k.a. Roscoe Daniels,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

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

                                              (August 18, 2011)

Before CARNES, WILSON, and BLACK, Circuit Judges.

PER CURIAM:
      Roscoemanuel Daniels appeals his 151-month total sentence of

imprisonment, imposed at the bottom of the guidelines range, after pleading guilty

to one count of distributing MDMA or “ecstasy” in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C) and one count of being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1). Daniels contends that the sentencing court

abused its discretion when it did not grant him a downward variance.

                                         I.

      The presentence investigation report classified Daniels as a career offender

because of his convictions in 1999 for sale of marijuana and robbery. See United

States Sentencing Guidelines § 4B1.1(a). On the basis of that classification and

his criminal history, the PSR calculated Daniels’ advisory guidelines range as 151

to 188 months imprisonment.

      Daniels made no objections to the PSR or the calculations in it. He did,

however, file a motion for a variance. That motion argued that he should receive a

variance from the career offender guidelines range because his classification as a

career offender over-represented his previous criminal history. He based that

argument on his assertion that he played only a minor role in the 1999 robbery.

      At the sentence hearing, he again made no objection to the PSR and

reiterated his motion for a variance. In support of that motion Daniels presented

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the victim of the 1999 robbery as a witness. The victim testified that another

individual involved in the robbery had been its “ringleader” and that Daniels had

not harmed or threatened him during the crime. On cross-examination, the

prosecutor drew out that the victim knew Daniels’ mother, and the prosecutor

asked the victim about numerous inconsistencies between the testimony he had

just given and the actual police report of the crime.

      In sentencing Daniels the district court observed: “Even if I accepted [the

robbery victim’s] testimony [Daniels] would still be guilty of aiding and abetting.”

The court also noted that the victim had admitted to not remembering many things,

that his testimony was completely different from the actual police report of the

robbery, and that it was “pretty clear [the victim]’s trying to help out someone.”

As a result, the court explained, it was “not inclined to accept [the victim’s]

testimony.”

                                          II.

      We review the reasonableness of a defendant’s sentence under “a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.

586, 591 (2007). The burden of establishing that a sentence is unreasonable lies

with the party challenging the sentence. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). “[W]hen the district court imposes a sentence within the

                                          3
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one.” Id. But whatever the sentence, in reviewing its reasonableness we must

consider “the totality of the facts and circumstances,” and we will reverse “if, but

only if, 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. Irey, 612 F.3d 1160, 1189, 1190 (11th Cir.

2010) (en banc) (quotation marks omitted).

      We review a district court’s finding of facts, which include any credibility

determinations, only for clear error. Irey, 612 F.3d at 1190. The Supreme Court

has explained:

      If the district court’s account of the evidence is plausible in light of the
      record viewed in its entirety, the court of appeals may not reverse it even
      though convinced that had it been sitting as the trier of fact, it would
      have weighed the evidence differently. Where there are two permissible
      views of the evidence, the factfinder’s choice between them cannot be
      clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573–74; 105 S.Ct. 1504, 1511

(1985). In addition, “a failure to object to allegations of fact in a PSI admits those

facts for sentencing purposes.” United States v. Wade, 458 F.3d 1273, 1277 (11th

Cir. 2006).



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      Here, Daniels made no objections to the allegations of fact in the PSI

regarding his 1999 robbery conviction. Thus, those facts were admitted for

purposes of his sentencing. Even if he had objected, the district court did not

abuse its discretion or clearly err in sentencing Daniels to a term of imprisonment

at the very bottom of the advisory guidelines range.

      In light of the record in its entirety, the district court’s finding that the

victim’s testimony was biased and incredible is, at a minimum, plausible. The

district court did not, therefore, clearly err in refusing to accept that testimony or

abuse its discretion in refusing to grant a downward variance on the basis of that

testimony.

      The other objections Daniels raises about the substantive reasonableness of

his total sentence are without merit. While the court’s discussion of the § 3553(a)

factors did place specific emphasis on Daniels’ criminal history, that was not to

the detriment of all the other § 3553(a) factors. In addition, Daniels’s 151-month

sentence is at the bottom of the guidelines range and well below the 20-year

statutory maximum. In short, our review of the record does not leave us with the

“definite and firm conviction” that the district court arrived at a sentence outside

the range of reasonable sentences under the facts of this case. See Irey, 612 F.3d

at 1189.

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AFFIRMED.




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