           Case: 14-10013   Date Filed: 04/30/2015   Page: 1 of 23


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10013
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-00200-AT-JFK-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DWAYNE FIELDS,
a.k.a. New York,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (April 30, 2015)

Before HULL, ROSENBAUM and FAY, Circuit Judges.

PER CURIAM:
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      Dwayne Fields appeals his 10-year imprisonment sentence for dealing

firearms without a license. We affirm Fields’s sentence but vacate and remand to

correct a clerical error in the judgment.

                               I.      BACKGROUND

      A federal grand jury charged Fields and six others, Kenneth Porter, Khalif

Jackson, Mosezell Kelly, Niqua Brown, Delvin Sloan, and Keilen Adrine, in an

eleven-count superseding indictment. Fields was charged with dealing firearms

without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Count 1); making false

statements to a federally licensed firearms dealer, in violation of 18 U.S.C.

§ 924(a)(1)(A) (Count 5); knowingly possessing and selling a stolen firearm, in

violation of §§ 922(j) and 924(a)(2) (Count 6); and knowingly possessing a rifle

with a barrel length of less than 16 inches that was not registered to him, in

violation of 26 U.S.C. §§ 5841, 5845(a)(3), 5861(d), and 5871 (Count 7). Fields

pled guilty to all counts without a plea agreement.

A.    Presentence Investigation Report

      According to the presentence investigation report (“PSI”), beginning on

October 1, 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives and

the Atlanta Police Department (“APD”) operated an undercover warehouse in

Atlanta, Georgia. From January 12 through June 26, 2012, Fields and his

codefendants sold approximately 38 firearms and ammunition to an APD


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undercover officer in some 30 separate transactions, some of which took place at

the undercover warehouse.

      On January 12, 2012, an undercover officer and a confidential informant met

with Fields at the Old National Discount Mall in Atlanta and asked about

purchasing a firearm. Outside of the mall, Fields sold the undercover officer a

revolver loaded with five rounds of ammunition for $150.

      On January 18, 2012, an undercover officer met with Fields and Antoine

Smith, who drove the car in which the pair arrived at the warehouse. Smith carried

a potato-chip bag, from which he removed three plastic bags containing

approximately 259.9 grams of marijuana. Smith handed the bags of marijuana to

the undercover officer; after weighing and inspecting the bags, the officer gave

Smith $950. When the transaction was complete, Smith and Fields left the

warehouse.

      Also on January 18, Fields and codefendant Jackson met with two

undercover officers at the warehouse. Fields carried a .410 caliber shotgun, and

Jackson carried a Ruger .357 pistol. Fields sold both guns to the undercover

officer. The Ruger .357 had an obliterated serial number. At the meeting, Fields

told the officers he had no felony convictions, and he offered to straw purchase

firearms for the undercover officers.




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      On February 13, 2012, Fields sold two shotguns to an undercover officer,

one of which had been reported stolen. Fields brought the two guns to the

warehouse and handed them to the officer. The officer asked Fields if the guns

were stolen, and Fields stated he did not believe they were stolen. The officer told

Fields that one of the shotguns did not have a serial number, and Fields responded,

“Don’t your people just resell them when they get to Cali?”

      On February 16, 2012, Fields sold another firearm to the undercover officer,

and he again offered to straw purchase firearms for the officer. The undercover

officer told Fields to be ready to make a straw purchase the next day. Meanwhile,

on February 15, 2012, undercover officers went to the Forest Park Army-Navy

Store, Inc., in Forest Park, Georgia and met with an employee, M.T., who agreed

to facilitate an undercover straw purchase. The officers selected an assault rifle

and a pistol for the purchase.

      On February 22, 2012, an undercover officer called Fields, and Fields stated

he was willing to purchase the two guns that the officer had selected. On February

23, 2012, Fields and undercover officers went to the Forest Park Army-Navy Store.

M.T. handed the pistol to an undercover officer and the rifle to Fields. M.T. told

Fields to fill out ATF Form 4473 and advised Fields not to “fuck up” on the form,

or he would not be approved. Fields read aloud question 11K from Form 4473,

which asked, “Are you an alien illegally in the United States?” The undercover


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officer stated Fields was not an illegal alien, but the undercover officer was. M.T.

walked Fields through the rest of Form 4473 and told him not to worry about

question 12, which asked if a non-immigrant-alien purchaser fell within any

exception set forth in the instructions. The undercover officer then gave $1,153.46

cash to M.T. to complete the transaction for the two weapons. Fields and the

officer exited the store, with Fields carrying the pistol, and the officer carrying the

rifle. Fields was paid $250 for the straw purchase.

      On June 1, 2012, Fields sold three firearms and ammunition to the

undercover officer. After that, the undercover officer asked Fields if he or anyone

he knew had taken part in robberies. Fields stated both he and other individuals he

knew were involved in the robberies. Fields said he would contact and bring to the

officer individuals to discuss the robbery of a drug-stash house. The officer

advised that the stash house was guarded with armed security around the clock.

      On June 4, 2012, Fields and codefendant Brown went to the warehouse

together; Brown sold two firearms, one of which was stolen, to an undercover

officer. At that time, the officer asked Fields if he had talked to anyone about the

planned drug-stash-house invasion. Fields advised he had spoken to codefendant

Brown and others. Asked if they were still willing to pursue the planned robbery,

both Brown and Fields answered affirmatively. Brown asked the officer if the




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individuals, who were supplied the drugs, were the same individuals to whom the

officer had sold the firearms, and the officer responded affirmatively.

      Fields also sold a Ruger .22 caliber rifle with a 12.5-inch barrel to an

undercover officer. The barrel and overall length of the .22 caliber rifle qualified

it as a National Firearms Act (“NFA”) weapon requiring registration, although the

rifle was not registered.

      Of relevance to this appeal, Fields’s PSI shows a four-level enhancement

under U.S.S.G. § 2K2.1(b)(4), because one of the guns he sold on January 18,

2012, had an obliterated serial number. He also received a four-level enhancement

under U.S.S.G. § 2K2.1(b)(5) for engaging in the trafficking of firearms because,

according to a law enforcement agent, Fields believed that he was selling the

firearms to a convicted felon, who was shipping them to California. He received

an additional four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), because he

used or possessed the firearm with knowledge or reason to believe that it would be

used in connection with another felony offense, since he was present when Brown

asked and was told the guns were being supplied to drug traffickers. Fields

received a three-level reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a) and (b). His total offense level was 35. Fields had one criminal history

point and was assigned a criminal history category of I.




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      Prior to the sentencing hearing, Fields objected to the four-level

enhancements under § 2K2.1(b)(4) for an obliterated serial number and

§ 2K2.1(b)(6)(B) for transferring a firearm with the knowledge or belief that it

would be used in connection with another felony. He also contended he was

entitled to a two-level, minor-role reduction under U.S.S.G. § 3B1.2(b). At the

sentencing hearing, Fields raised an additional objection to the four-level

§ 2K2.1(b)(5) enhancement for trafficking of firearms.

B.    Sentencing Proceedings

      At Fields’s sentencing hearing, Officer Stephen McKesey, the lead

undercover officer in Fields’s case, testified he posed as a member of the Crip

gang, who had moved to Georgia from the Compton, California area. The first

time he met Fields, Officer McKesey told Fields he was member of the Crip gang,

had a felony record, and had moved to Georgia to obtain guns to sell to his fellow

gang members in California. Fields told McKesey he would help him. McKesey

further showed Fields FedEx boxes, indicating the guns were shipped to California

and demonstrated how he disassembled the guns for shipping.

      Fields testified during the hearing. After his direct and cross-examinations,

the district judge asked Fields whether Officer McKesey had advised him the guns

were being purchased on behalf of the Crips and sent to California. Fields

responded during his third meeting with Officer McKesey that McKesey had stated


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he was reselling the guns in California. Fields, however, said he did not know the

guns were for gang members. On re-cross examination, Fields acknowledged,

when he sold the guns to Officer McKesey, he believed McKesey was a convicted

felon.

         Regarding the § 2K2.1(b)(6) enhancement for possession of a firearm in

connection with another felony, Fields argued his connection to the alleged felony,

supplying guns to drug traffickers, was too tenuous to support the enhancement.

Later in the sentencing hearing, the government declined to move for a one-level

reduction for acceptance of responsibility under § 3E1.1(b), because Fields had

violated the conditions of his pretrial release by failing to (1) report in person and

via telephone, as required; (2) enroll in a General Education Development

program; and (3) submit a monthly report.

         The district judge overruled all of Fields’s Sentencing Guidelines objections.

Regarding the § 2K2.1(b)(4)(B) enhancement for an obliterated serial number, the

judge determined, under the circumstances, Fields would not necessarily have

known about the obliteration, but he could have looked to see whether the serial

number had been obliterated. The judge also overruled Fields’s objections to the

§ 2K2.1(b)(5) enhancement for trafficking of firearms and the § 2K2.1(b)(6)(B)

enhancement for possessing a firearm in connection with another felony. The

judge explained that, of those involved in the scheme, Fields had heard the most


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and was in the greatest position to infer McKesey (1) planned to use the guns for

unlawful purposes and (2) was not allowed to possess guns lawfully. The judge

also emphasized Fields repeatedly had heard conversations that alerted him the

guns potentially would be used for unlawful purposes, including drug trade. The

judge also denied Fields’s request for a two-level mitigating role reduction under

§ 3B1.2(b).

      The judge applied a two-level reduction under § 3E1.1(a) for acceptance of

responsibility. She explained the government was being “miserly” by refusing to

move for the additional one-level § 3E1.1(b) reduction, but she determined she

lacked authority to require the government to move for the reduction. R. at 2089.

The judge then determined that Fields’s offense level was 36, which, combined

with his criminal history category of I, yielded a Sentencing Guidelines range of

188 to 235 months of imprisonment.

      In arguing about the 18 U.S.C. § 3553(a) factors, Fields asserted a short

sentence between 36 and 60 months of imprisonment would be sufficient to fulfill

the sentencing goals, because he already had started the rehabilitation process,

obtained treatment for his drug addiction, and received strong family support. The

district judge determined a 5-year imprisonment sentence did not sufficiently

reflect that Fields had made the conscious choice to engage repeatedly in illicit gun

transactions and had involved his friends and acquaintances in the scheme.


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Considering Fields’s lack of a criminal history, however, the district judge

determined the Guidelines range was too high and a sentence of 120 months of

imprisonment was appropriate.

                                II.   DISCUSSION

A.    Section 2K2.1(b)(4)(B) Enhancement for Possessing a Gun with an
      Obliterated Serial Number

      On appeal, Fields argues the four-level enhancement of § 2K2.1(b)(4)(B) for

possessing a gun with an obliterated serial number should not apply because he

(1) possessed the firearm for minutes, if not seconds, before giving it to the

undercover officer, and (2) he had no knowledge the firearm had an obliterated

serial number. Relying on a district court decision, United States v. Handy, 570 F.

Supp.2d 437 (E.D.N.Y. 2008), Fields argues § 2K2.1(b)(4)(B) should be deemed

unconstitutional, since it allows a defendant’s sentence to be increased for

possessing a firearm with an obliterated serial number without requiring that the

defendant know or have reason to know that fact.

      In the context of the Sentencing Guidelines, we review purely legal

questions de novo and a district judge’s factual findings for clear error. United

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). The judge’s application

of the Guidelines to the facts in most cases is reviewed with due deference, which

is tantamount to clear-error review. Id. “For a finding to be clearly erroneous, this

Court must be left with a definite and firm conviction that a mistake has been
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committed.” Id. (quotation omitted). When interpreting the Sentencing

Guidelines, we are bound by the Guidelines commentary. United States v.

Contreras, 739 F.3d 592, 594 (11th Cir.), cert. denied, 134 S. Ct. 2858 (2014).

“The commentary is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Id.

      A defendant receives a four-level increase if any firearm had an altered or

obliterated serial number. U.S.S.G. § 2K2.1(b)(4)(B). Enhancements under

§ 2K2.1(b)(4) apply “regardless of whether the defendant knew or had reason to

believe that the firearm was stolen or had an altered or obliterated serial number.”

Id., cmt. n.8(B). With reference to the two-level enhancement under

§ 2K2.1(b)(4)(A) for possession of a stolen firearm, we have held “that the lack of

a mens rea element in the sentencing enhancement for possession of a stolen

firearm does not offend due process because § 2K2.1(b)(4) does not create a crime

separate and apart from the underlying felony.” United States v. Richardson, 8

F.3d 769, 770 (11th Cir. 1993).

      The district judge properly applied the four-level, § 2K2.1(b)(4)(B)

enhancement. Fields has not disputed that one of the guns he sold on January 18,

2012, had an obliterated serial number. Under the Guidelines commentary, there is




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no requirement that he have any knowledge, or reason to believe, the firearm had

an obliterated serial number. See U.S.S.G. § 2K2.1, cmt. n.8(B).

      Fields’s argument § 2K2.1(b)(4) is unconstitutional because it may be

applied without a mens rea element, is unpersuasive. Richardson is controlling

under these circumstances because the language and reasoning in Richardson

covers § 2K2.1(b)(4)(B), as well as (b)(4)(A), because (1) application note 8(B) of

the Guidelines, explaining that the enhancement applies regardless of a defendant’s

knowledge, concerns both § 2K2.1(b)(4)(B) and (b)(4)(A), and (2) § 2K2.1(b)(4)

does not create a crime separate and apart from the underlying felony. See

Richardson, 8 F.3d at 770.

      In Handy, the Eastern District of New York court determined the

§ 2K2.1(b)(4)(A) enhancement could not be applied, when the defendant did not

know or have reason to know the gun he possessed was stolen. Handy, 570 F.

Supp.2d at 440, 480. Fields’s reliance on Handy is unavailing, because that

decision is not binding on this court, and it is contrary to Richardson, which is

binding precedent. In view of the reasoning in Richardson and the limited

applicability of Handy, the district judge did not err.

B.    Section § 2K2.1(b)(5) Enhancement for Trafficking in Firearms

      Fields argues the § 2K2.1(b)(5), four-level enhancement for trafficking in

firearms should not apply, when a defendant sells or transfers a firearm to only an


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undercover police officer. He contends the district judge improperly applied the

enhancement in his case.

      A defendant receives a four-level enhancement under the Sentencing

Guidelines, if he “engaged in the trafficking of firearms . . . .” U.S.S.G.

§ 2K2.1(b)(5). This enhancement applies, in relevant part, if the defendant

(1) transferred “two or more firearms to another individual,” and (2) “knew or had

reason to believe that such conduct would result in the transport, transfer, or

disposal of a firearm to an individual . . . whose possession or receipt of the firearm

would be unlawful; or . . . who intended to use or dispose of the firearm

unlawfully.” Id., cmt. n.13(A)(i)-(ii).

      The Guidelines commentary does not support Fields’s argument; therefore,

the judge properly applied § 2K2.1(b)(5). See id., cmt. n.13(A); Contreras, 739

F.3d at 594 (recognizing the Guidelines commentary is authoritative). The

Guidelines commentary makes clear the enhancement applies, if the defendant

“had reason to believe” his conduct would result in the transfer of firearms to

someone whose possession would be unlawful. See U.S.S.G. § 2K2.1, cmt. n.

13(A)(i)-(ii). Fields admitted his belief that Officer McKesey, to whom he

transferred the guns, was a convicted felon. Consequently, he had reason to

believe Officer McKesey was not allowed to possess the firearms lawfully. See

U.S.S.G. § 2K2.1, cmt. n.13(A)(i)-(ii). According to Officer McKesey’s testimony


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at the sentencing hearing, McKesey told Fields of his intent to sell the guns to gang

members in California, which also would justify the firearms trafficking

enhancement. See id., cmt. n.13(A)(ii). Because nothing in the Guidelines

commentary suggests the defendant’s belief must be true, Fields’s focus on the fact

he transferred firearms solely to an undercover officer is unpersuasive.

C.    Section § 2K2.1(b)(6)(B) Enhancement for Possession of a Firearm in
      Connection with Another Felony

      Fields argues the district judge improperly applied the § 2K2.1(b)(6)(B)

enhancement, because the government did not show any of the potential bases for

the enhancement, such as the planned robbery and McKesey’s marijuana purchase,

were actual felonies. In support of his argument, Fields cites the general principle

the government bears the burden of proving any fact that increases a defendant’s

Guidelines sentence.

      If a defendant raises a sentencing issue for the first time on appeal, we

review for plain error. United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011).

To preserve a sentencing objection, the defendant must raise the “point in such

clear and simple language that the trial court may not misunderstand it.” United

States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quotations omitted). “The

defendant . . . fails to preserve a legal issue for appeal if the factual predicates of an

objection are included in the sentencing record, but were presented to the district

court under a different legal theory.” Id.
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      To prevail under the plain-error standard of review, a defendant must prove

there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L.Ed.2d 860

(2002) (quotations omitted). If a defendant proves all of these elements, we “may

then exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted). “It is the law of this circuit that, at least

where the explicit language of a statute or rule does not specifically resolve an

issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003).

      A defendant receives a four-level increase under the Sentencing Guidelines,

if he “[u]sed or possessed any firearm or ammunition in connection with another

felony offense; or possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The

applicable commentary provides this enhancement applies “if the firearm or

ammunition facilitated, or had the potential of facilitating, another felony offense.”

Id., cmt. n.14(A). “Another felony offense,” for purposes of § 2K2.1(b)(6)(B),

“means any federal, state, or local offense, other than the . . . firearms possession


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or trafficking offense, punishable by imprisonment for a term exceeding one year,

regardless of whether a criminal charge was brought, or a conviction obtained.”

Id., cmt. n.14(C). Where a defendant challenges one of the factual bases of his

sentence, the government must prove the disputed fact by a preponderance of the

evidence with reliable and specific evidence. United States v. Rodriguez, 732 F.3d

1299, 1305 (11th Cir. 2013).

      We review Fields’s objection to § 2K2.1(b)(6)(B) for plain error only.

Although Fields objected to the § 2K2.1(b)(6)(B) enhancement, he did so because

he claimed too tenuous a connection to the offenses the government identified as

the bases for the enhancement. He did not specifically argue, as he does on appeal,

that any of the offenses discussed by the government were not actually felonies or

that the government had failed to prove them to be felonies. Because the legal

basis for his objection to his § 2K2.1(b)(6)(B) enhancement is different on appeal

than the one upon which he relied in district court, his argument is reviewed under

the plain-error standard. See Massey, 443 F.3d at 819.

      Fields argues on appeal the government failed to prove any of the potential

bases for the § 2K2.1(b)(6)(B) enhancement were actually felonies. Fields does

not apply persuasively the general principle the government bears the burden of

proving facts that increase a defendant’s Guidelines range to the record or the

specific enhancement at issue. For such an error to be plain, the Guidelines


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provision, or a case from this court or the Supreme Court, must directly resolve the

issue. See Lejarde-Rada, 319 F.3d at 1291. Section 2K2.1(b)(6)(B) and the

relevant commentary does not specifically provide the government must prove a

purported basis for the enhancement is actually a felony absent a specific objection

by the defendant. See U.S.S.G. § 2K2.1(b)(6)(B). Fields failed to reference any

case from this court or the Supreme Court supporting his argumnent.

Consequently, Fields’s arguments fall short of the showing any error by the district

judge was plain. See Lejarde-Rada, 319 F.3d at 1291.

D.    Section § 3B1.2(b) Minor-Role Reduction

      Fields argues the district judge erred in failing to apply a two-level, minor-

role reduction under § 3B1.2(b). He contends he acted as a mere broker or

middleman to facilitate the gun sales. Because of his limited role in the

transactions, he argues he should have received a mitigating-role reduction.

      We review for clear error a district judge’s determination of a defendant’s

role in the offense. United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th

Cir. 1999) (en banc). Section 3B1.2(b) provides a two-level reduction if the

defendant was a “minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b).

The defendant must prove by a preponderance of the evidence he is entitled to the

reduction. United States v. Rodriguez, 751 F.3d 1244, 1258 (11th Cir.), cert.

denied, 135 S. Ct. 310 (2014). In determining whether a defendant is entitled to a


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mitigating-role adjustment, the district judge considers (1) the defendant’s role

measured against the relevant conduct for which he was held accountable at

sentencing, and (2) his role compared to other participants in that relevant conduct.

Id.

      The district judge did not clearly err in declining to apply a minor role

adjustment under § 3B1.2(b). See Rodriguez De Varon, 175 F.3d at 937-38. The

PSI shows Fields was directly involved in approximately 30 transactions, resulting

in the illicit sale of 38 firearms to Officer McKesey. Fields does not deny he

brokered or acted as a middle man for each of these transactions; instead, he

cursorily argues such a role amounts only to minor participation. Fields’s role as a

broker militates against a minor-role reduction, because it suggests the illicit

firearms sales might not have occurred without his participation; therefore, he was

a necessary component to the consummation of those transactions. See Rodriguez,

751 F.3d at 1258. Fields has failed to show the district judge’s conclusion he was

not entitled to a § 3B1.2(b) minor-role reduction was clear error. See Rodriguez

De Varon, 175 F.3d at 937-38.

E.    Section § 3E1.1(b) Reduction for Acceptance of Responsibility

      Fields argues the district judge erred in failing to apply sua sponte the

one-level reduction of § 3E1.1(b), despite the government’s refusal to move for the

reduction. Fields asserts the government’s motive for declining to move for the


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§ 3E1.1(b) reduction was unconstitutional retaliation for his choice to enter a

non-negotiated plea rather than accept a previously offered government plea.

      We review a district judge’s determination of whether a defendant has

accepted responsibility for clear error and with great deference. United States v.

McPhee, 108 F.3d 287, 289 (11th Cir. 1997). Once the district judge has

determined a defendant has accepted responsibility, however, we review the

application of the Guidelines de novo. Id. A defendant may receive a two-level

reduction under the Guidelines if he “clearly demonstrates acceptance of

responsibility for the offense.” U.S.S.G. § 3E1.1(a).

      Under § 3E1.1(b), a defendant receives an additional one-level reduction, if

he qualifies for a § 3E1.1(a) two-level reduction and

             upon motion of the government stating that the defendant
             has assisted authorities in the investigation or prosecution
             of his own misconduct by timely notifying authorities of
             his intention to enter a plea of guilty, thereby permitting
             the government to avoid preparing for trial and
             permitting the government and the court to allocate their
             resources efficiently . . . .

Id. § 3E1.1(b). The commentary explains, “[b]ecause the Government is in the

best position to determine whether the defendant has assisted authorities in a

manner that avoids preparing for trial, an adjustment under subsection (b) may

only be granted upon a formal motion by the Government at the time of

sentencing.” Id., cmt. n.6. In the context of U.S.S.G. § 5K1.1, we have explained


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the government may not refuse to move for a downward departure based on a

defendant’s substantial assistance on an unconstitutional motive, such as a

defendant’s race or religion. United States v. Nealy, 232 F.3d 825, 831 (11th Cir.

2000).

      The district judge did not err in failing to apply sua sponte a § 3E1.1(b)

reduction. According to the Guidelines commentary, a government motion is

required for the court to apply the reduction, and the government declined to file

the motion in Fields’s case. See U.S.S.G. § 3E1.1, cmt. n.6. Consequently, the

judge could not have imposed the § 3E1.1(b) one-level reduction absent the

government’s motion.

      Fields’s argument the government’s motive for declining to file a § 3E1.1(b)

motion was unconstitutional is unconvincing. There is no indication in the record

the government based its decision on an unconstitutional motive, such as Fields’s

race or religion. See Nealy, 232 F.3d at 831. Fields’s claim the government’s

motive was his failure to accept a plea is unpersuasive, because he provides no

support for that assertion beyond a cursory reference to a plea he did not accept.

Fields provides no meaningful reason to doubt the government’s stated reason for

declining to file a § 3E1.1(b) motion was his failure to follow his pretrial-release

conditions.




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F.    Substantive Reasonableness

      Fields argues his 10-year imprisonment sentence is substantively

unreasonable because (1) he lacked a significant criminal history, and (2) the

severity of the charges was increased by the undercover officers’ decision to allow

their operation to continue for so long. We review the reasonableness of a

sentence under a deferential abuse-of-discretion standard. Gall v. United States,

552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L.Ed.2d 445 (2007). We consider

whether the sentence was substantively reasonable in light of the totality of the

circumstances. Id. at 51, 128 S. Ct. at 597. The party who challenges the sentence

bears the burden of showing that it is unreasonable in view of the record and the §

3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

Among the factors a district judge must consider are (1) the nature and

circumstances of the offense, (2) the defendant’s history and characteristics, and

(3) the need for the sentence to reflect the seriousness of the offense. 18 U.S.C.

§ 3553(a)(1)-(2). Provided the sentence imposed is a reasonable one, we will not

set it aside merely because we determine a different sentence would have been

more appropriate. United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en

banc). We set aside a sentence only if we determine, “after giving a full measure

of deference to the sentencing judge, that the sentence imposed truly is

unreasonable.” Id. “The district court may determine on a case-by-case basis the


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relative weight to give the Guidelines range in light of the other section 3553(a)

factors.” United States v. Lozano, 490 F.3d 1317, 1324 (11th Cir. 2007).

      Fields has not shown the district judge abused her discretion in imposing a

10-year, below-Guidelines imprisonment sentence. See Gall, 552 U.S. at 41,

128 S. Ct. at 591. At the sentencing hearing, the judge explicitly discussed the

mitigating factors Fields pursues on appeal, including his lack of criminal history

and the government’s conduct. See 18 U.S.C. § 3553(a)(1), (a)(2). Nevertheless,

the judge’s primary consideration in her decision to impose a 10-year

imprisonment sentence was because Fields consciously chose to engage repeatedly

in illicit gun transactions and brought friends and acquaintances into the scheme.

See 18 U.S.C. § 3553(a)(1) (providing the judge shall consider “the nature and

circumstances of the offense” in determining an appropriate sentence). Fields’s

argument amounts to a disagreement with the relative weight the judge gave

certain mitigating § 3553(a) factors, such as his lack of criminal history, with the

weight she gave aggravating circumstances, such as his conscious and repeated

engaging in firearms transactions. While that argument might show a lower

sentence also would have been appropriate, it does not show the court’s chosen

sentence was unreasonable. See Irey, 612 F.3d at 1191. Fields has failed to meet

his burden of showing his 10-year, below-Guidelines imprisonment sentence is




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substantively unreasonable in view of the record and the § 3553(a) factors. See

Tome, 611 F.3d at 1378.

                  III.   CLERICAL ERROR IN THE JUDGMENT

       Although we conclude Fields’s sentence is correct, there is a clerical error in

the judgment. The judgment imposing Fields’s sentence incorrectly identifies 26

U.S.C. § 5845(a)(2), rather than § 5845(a)(3), as the statutory provision relative to

Count 7. Therefore, we sua sponte remand for the district judge to correct the

error. See Massey, 443 F.3d at 822 (“We may sua sponte raise the issue of clerical

errors in the judgment and remand with instructions that the district court correct

the errors.”).

                                  IV.   CONCLUSION

       Because Fields has not shown the district judge’s Guidelines calculations

were incorrect or his sentence was substantively unreasonable, we affirm his 10-

year imprisonment sentence. Nevertheless, we vacate and remand for the limited

purpose of correcting a clerical error in the judgment.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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