           Case: 13-14193   Date Filed: 09/04/2014   Page: 1 of 10


                                                          [DO NOT PUBLISH]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:
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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 mandatory-

minimum 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 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
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 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 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 mandatory-
minimum 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 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 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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