                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                                No. 08-12473               ELEVENTH CIRCUIT
                            Non-Argument Calendar            December 17, 2008
                          ________________________          THOMAS K. KAHN
                                                                 CLERK
                      D. C. Docket No. 07-00298-CR-WS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

NOULN SOUN,
a.k.a. Sonny,
                                                           Defendant-Appellant.
                          ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________
                              (December 17, 2008)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

      Nouln Soun appeals from his 292-month sentence after he pled guilty to

conspiracy to possess with intent to distribute more than 500 grams of a mixture

containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846. On

appeal, Soun argues that: (1) the district court clearly erred in determining the
amount of drugs attributable to him; (2) the district court erred in imposing an

enhancement for possession of a firearm during a drug trafficking offense; and (3)

his sentence was not substantively reasonable. After thorough review, we affirm.

      We review the district court’s interpretation of the sentencing guidelines

de novo and its factual findings, such as determinations of drug quantities or

firearm possession, for clear error. United States v. Jordi, 418 F.3d 1212, 1214

(11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.

2005); United States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996). We review

the ultimate sentence imposed for “reasonableness,” which “merely asks whether

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).

      First, we find no merit in Soun’s argument that the district court clearly

erred in determining the amount of drugs attributable to him.        The guidelines

provide that the base offense level for a possession or a conspiracy drug offense is

ordinarily calculated by determining the quantity of drugs attributable to a

defendant. See generally U.S.S.G. § 2D1.1. The guidelines also provide that courts

shall consider as relevant to this determination “all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by

the defendant . . . that occurred during the commission of the offense of conviction



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. . . .” U.S.S.G. § 1B1.3(a)(1). A defendant is accountable for co-conspirators’

conduct that was reasonably foreseeable and within the criminal activity that the

defendant agreed to undertake. United States v. Westry, 524 F.3d 1198, 1219 (11th

Cir.), cert. denied, (U.S. Oct. 6, 2008) (No. 08-5343). “‘Where there is no drug

seizure or the amount seized does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substance.’” United States v. Frazier, 89

F.3d 1501, 1506 (11th Cir.1996) (quoting U.S.S.G. § 2D1.1 cmt. n.12). Moreover,

“[i]n estimating the quantity of drugs attributable to a defendant, a court may base

its computation on evidence showing the average frequency and amount of a

defendant’s drug sales over a given period of time.” Id. Thus, sentencing “may be

based on fair, accurate, and conservative estimates of the quantity of drugs

attributable to a defendant.” United States v. Zapata, 139 F.3d 1355, 1359 (11th

Cir. 1998) (per curiam).      The government bears the burden of proving drug

quantity by a preponderance of evidence. Rodriguez, 398 F.3d at 1296.

      The record shows that Soun admitted to methamphetamine amounts adding

up to 1721.5 grams, even without including the amounts of methamphetamine

testified to by his codefendants.    Thus, the district court did not clearly err in

determining that the drug quantity attributable to Soun was at least 1.5 kilograms.




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      Next, we are unpersuaded that the district court erred by enhancing Soun’s

sentence for possession of a firearm. According to U.S.S.G. § 2D1.1(b)(1), a court

should increase the offense level by two “[i]f a dangerous weapon (including a

firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The enhancement “should be

applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.3. The government has

the burden to demonstrate the proximity of the firearm to the site of the charged

offense by a preponderance of the evidence. United States v. Audain, 254 F.3d

1286, 1289 (11th Cir. 2001). “If the government is successful, the evidentiary

burden shifts to the defendant to demonstrate that a connection between the

weapon and the offense was ‘clearly improbable.’” Id. The firearm enhancement

applies whenever a firearm is possessed during relevant conduct attributed to the

defendant during sentencing. United States v. Hunter, 172 F.3d 1307, 1309 (11th

Cir. 1999).

      “The § 2D1.1(b)(1) enhancement may be applied when the firearm is

possessed by a co-conspirator.” United States v. Pham, 463 F.3d 1239, 1245 (11th

Cir. 2006). “The enhancement applies to a co-conspirator when the government

establishes by a preponderance of the evidence that (1) the possessor of the firearm

was a co-conspirator, (2) the possession was in furtherance of the conspiracy,



                                         4
(3) the defendant was a member of the conspiracy at the time of possession, and

(4) the co-conspirator possession was reasonably foreseeable by the defendant.” Id.

(quotation omitted).

        Here, the record shows that Soun’s co-conspirators testified that they

possessed firearms in connection with drug trafficking when Soun was with them.

Thus, although Soun did not possess a firearm himself in connection with drug

trafficking, the district court did not clearly err in determining that Soun knew or

could have foreseen that his co-conspirators possessed a firearm in furtherance of

the conspiracy while he was a member of it.

        Finally, we reject Soun’s claim that his sentence was unreasonable.                    In

reviewing sentences for reasonableness, we perform two steps. Pugh, 515 F.3d at

1190.       First, we must “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 128

S.Ct. 586, 597 (2007)).1 If we conclude that the district court did not procedurally


        1
          The § 3553(a) factors include: (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

                                                5
err, we must consider the “‘substantive reasonableness of the sentence imposed,

under an       abuse-of-discretion       standard,’”     based    on    the   “‘totality of      the

circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597). “The party who challenges

the sentence bears the burden of establishing that the sentence is unreasonable in

the light of both th[e] record and the factors in section 3553(a).” United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted).

        We have observed “there is a range of reasonable sentences from which the

district court may choose, and when the district court imposes a sentence within the

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

one.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The district

court need not state on the record that it has explicitly considered each factor and

need not discuss each factor. Id. at 786. Rather, “an acknowledgment by the district

court that it has considered the defendant’s arguments and the factors in section

3553(a) is sufficient under [United States v. Booker, 543 U.S. 220 (2005)].” Id.

Likewise, where the district court imposes a within-guidelines sentence, it need

only “set forth enough to satisfy the appellate court that it has considered the



seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                 6
parties’ arguments and has a reasoned basis for exercising [its] own legal decision

making authority.” Rita v. United States, 127 S.Ct. 2456, 2468 (2007). In holding a

particular sentence to be reasonable, we have noted that it was appreciably below

the statutory maximum. United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir.

2006). The maximum punishment for possessing more than 500 grams of a

substance containing methamphetamine is life imprisonment, and the minimum is

10 years’ imprisonment. 21 U.S.C. §§ 841(b)(1)(A)(viii), 846.

      Soun is only arguing that the district court committed substantive error.

However, as the record shows, the district court considered his arguments and the

§ 3553(a) factors. While other codefendants may have received lesser sentences

for their cooperation with the government, Soun did not show that he had

cooperated to a similar extent.     Moreover, Soun’s sentence of 292 months’

imprisonment was appreciably below the statutory maximum of life imprisonment,

and he was sentenced at the lowest recommended guideline range. He has not

shown that his within-guidelines sentence was unreasonable.

      AFFIRMED.




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