            Case: 11-15106   Date Filed: 08/09/2012       Page: 1 of 7

                                                              [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15106
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:10-cr-60292-DMM-1

UNITED STATES OF AMERICA,

                                 llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                   versus

ADOLPHUS SYMONETTE,
a.k.a. King Solomon,
a.k.a. Smurf,

                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                       ________________________

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

                             (August 9, 2012)

Before DUBINA, Chief Judge, TJOFLAT and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Appellant Adolphus Symonette appeals his convictions and sentences for

conspiracy under the Racketeer Influenced and Corrupt Organizations Act

(“RICO”); kidnapping; and using or carrying a firearm during and in relation to, or

possessing a firearm in furtherance of, a crime of violence. Symonette argues that

the district court abused its discretion in denying his motions to continue to allow

for additional trial preparation; that the district court erred in denying his motion

for judgment of acquittal and renewed motion for judgment of acquittal as to the

RICO conspiracy count; and that the concurrent life sentences he received for the

RICO conspiracy and kidnapping counts are substantively unreasonable.

                                           I.

      Symonette first argues that the district court abused its discretion in denying

his motions to continue to allow for additional trial preparation.

      We review a district court’s denial of a motion to continue trial for an abuse

of discretion. United States v. Graham, 643 F.3d 885, 893 (11th Cir. 2011).

Where a defendant requested and the district court denied a continuance to allow

for additional trial preparation, the defendant must show specific, substantial

prejudice. United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993). This

amounts to identifying “relevant, non-cumulative evidence that would have been

presented if his request for a continuance had been granted.” Id. See also United

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States v. Gibbs, 594 F.2d 125, 127 (5th Cir. 1979)1 (noting that the defendant

“points to no critical documents that might have been uncovered with additional

time and whose absence prejudiced or impaired his defense”).

       In considering a claim of inadequate preparation time, we consider several

factors, including “the quantum of time available for preparation, the likelihood of

prejudice from denial, the accused’s role in shortening the effective preparation

time, the degree of complexity of the case, and the availability of discovery from

the prosecution.” United States v. Garmany, 762 F.2d 929, 936 (11th Cir. 1985)

(quoting United States v. Uptain, 531 F.2d 1281, 1286 (5th Cir. 1976)).

       Here, we conclude from the record that the district court did not abuse its

discretion in denying Symonette’s motions to continue. Symonette’s trial counsel

had a period of two-and-one-half months to prepare for trial, and Symonette

himself played a role in shortening the effective preparation time by earlier

moving to remove his prior counsel. See Garmany, 762 F.2d at 936. Moreover,

on appeal, Symonette fails to state specifically how he was prejudiced by the

district court’s denial of his motions to continue. See Saget, 991 F.2d at 708. He

does not point to the relevant, non-cumulative evidence that he would have


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.

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presented had his request for a continuance been granted. See id; see also Gibbs,

594 F.2d at 127.

                                          II.

      Symonette next argues that the district court erred in denying his motion for

judgment of acquittal and renewed motion for judgment of acquittal as to the

RICO conspiracy count.

      “We review de novo both the denial of a motion for a judgment of acquittal

and the sufficiency of the evidence to sustain a conviction, viewing the evidence

in the light most favorable to the government and drawing all reasonable

inferences and credibility choices in favor of the jury’s verdict.” United States v.

Keen, 676 F.3d 981, 989 (11th Cir. 2012). We will affirm if a reasonable jury

could conclude that the evidence establishes guilt beyond a reasonable doubt.

United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007).

      The government establishes a RICO conspiracy violation under 18 U.S.C.

§ 1962(d) if it proves that “the defendants objectively manifested, through words

or actions, an agreement to participate in the conduct of the affairs of the

enterprise through the commission of two or more predicate crimes.” United

States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995) (internal quotation marks

omitted). The predicate crimes, or the racketeering activity, must have a

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relationship to the enterprise. United States v. Carter, 721 F.2d 1514, 1527 (11th

Cir. 1984). The government meets the relationship requirement by proving either

the racketeering activity’s effect upon the common, everyday affairs of the

enterprise or that the facilities and services of the enterprise were regularly and

repeatedly used to make possible the racketeering activity. Id.

      We conclude from the record that the evidence presented at trial was

sufficient to establish the relationship between the enterprise and the racketeering

activity, and the district court did not err in denying Symonette’s motions for

judgment of acquittal. In particular, the government met the relationship

requirement because it proved that the facilities of the enterprise were regularly

and repeatedly used to make possible the racketeering activity. See Carter, 721

F.2d at 1527. Specifically, the testimony of multiple witnesses established that the

houses acquired through the enterprise, and the firearms and cars purchased with

its profits, were used in the commission of the predicate crimes, including murder,

attempted murder, and kidnapping. The facilities of the enterprise further made

possible the racketeering activity because the houses and money generated by the

enterprise induced Symonette’s codefendants to obey him and agree to commit the

predicate crimes.

                                          III.

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      Symonette’s final argument is that the concurrent life sentences he received

for the RICO conspiracy and kidnapping counts are substantively unreasonable.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard of review. See Gall v. United States, 552 U.S. 38, 41, 128 S.

Ct. 586, 591, 169 L. Ed. 2d 445 (2007). The party challenging the sentence bears

the burden of establishing that it is substantively unreasonable in light of the

record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). Therefore, where a party challenging a sentence argues the

unreasonableness of the sentence based on only one § 3553(a) factor, we will

consider only that factor and not “assume the role of counsel” and consider the

other factors. United States v. Docampo, 573 F.3d 1091, 1102-03 (11th Cir.

2009).

      In imposing sentence, the district court is required to consider “the need to

avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).

However, as suggested by its plain language, this provision does not apply to

defendants who are not similarly situated. See Docampo, 573 F.3d at 1101. For

example, “defendants who cooperate with the government and enter a written plea

agreement are not similarly situated to a defendant who provides no assistance to

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the government and proceeds to trial.” Id.

      Here, we conclude that Symonette’s argument, that the district court failed

to avoid an unwarranted disparity between his sentences and those of his

codefendants lacks merit because he was not similarly situated to his codefendants

for the purposes of 18 U.S.C. § 3553(a)(6). Symonette was not found guilty of

entirely similar conduct as his codefendants because, unlike him, none of his

codefendants was guilty of all three counts of the indictment. Furthermore,

Symonette’s codefendants all entered plea agreements and cooperated with the

government, while Symonette provided no assistance and proceeded to trial. See

Docampo, 573 F.3d at 1101. Given that Symonette bears the burden of

establishing the unreasonableness of his sentences and has focused his argument

exclusively on § 3553(a)(6), we do not consider the other § 3553 factors in

concluding that his sentences are reasonable. See Docampo, 573 F.3d at 1102-03.

      For the above-stated reasons, we affirm Symonette’s convictions and

sentences.

      AFFIRMED.




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