           Case: 15-10875   Date Filed: 03/22/2016   Page: 1 of 9


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10875
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:14-cr-00136-JSM-TGW-1



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                   versus

AARON EDWIN REMALEY,

                                                     Defendant-Appellant.

                       ________________________

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

                             (March 22, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Aaron Remaley pled guilty to conspiring, in violation of 21 U.S.C. § 846, to

distribute and to possess with the intent to distribute 100 kilograms or more of

marijuana, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to prison of

121 months, a sentence at the low end of the sentence range prescribed by the

Sentencing Guidelines. He appeals his sentence on the grounds that (1) the district

court abused its discretion in entertaining the government’s untimely objection to

the failure of the Presentence Report (“PSI”), in applying the Sentencing

Guidelines, to include an obstruction of justice adjustment of his base offense level

under U.S.S.G. § 3B1.1; (2) the district court clearly erred by finding that he

willfully obstructed or attempted to obstruct justice and thus increasing his base

offense level under § 3CC1.1; and (3) his sentence is substantively unreasonable

because, in light of the sentencing goals set out in 18 U.S.C. § 3553(a), it is greater

than necessary and does not satisfy those goals.

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                               I.

      We review a district court’s consideration of untimely objections to a PSI for

abuse of discretion. United States v. Edouard, 485 F.3d 1324, 1351 (11th Cir.

2007). Rule 32(f)(1) of the Federal Rules of Criminal Procedure states:




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      Within 14 days after receiving the presentence report, the parties must
      state in writing any objections, including objections to material
      information, sentencing guideline ranges, and policy statements
      contained in or omitted from the report.

Fed. R. Crim. P. 32(f)(1). However, if good cause is shown, a district court may

“change any time limits prescribed in this rule” or allow a party “to make a new

objection at any time before sentence is imposed.” Fed. R. Crim. P. 32(b)(2) and

(i)(1)(D).

      Although Rule 32 vests the district court with discretion to hear untimely

objections when good cause for the delay is shown, none of our decisions have

defined what constitutes “good cause” for purposes of the rule. However, in other

contexts, we have determined that good cause exists where “some outside factor,

such as reliance on faulty advice, rather than inadvertence or negligence”

prevented the party from acting in a timely manner. E.g., Rance v. Rocksolid

Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009) (citation omitted) (finding

in a civil case that the district court abused its discretion by dismissing plaintiff’s

complaint without prejudice for failure to comply with Fed. R. Civ. P. 4(m) where

the U.S. Marshall had been directed to serve the complaint but failed to do so

through no fault of the plaintiff).

      We find no abuse of discretion here in the district court’s finding that the

government had good cause for raising its objection at the sentencing hearing. It is

undeniable that the government missed the 14-day window given for objections.
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However, the delay was understandable. The objection was based on recorded jail

calls, in which Remaley asked someone to wipe data on one of his phones that was

in the custody of the Sheriff’s Office. Although the government knew about the

calls, it was unable to access the phone data in a readable format until shortly

before the sentencing hearing. It could not raise the objection until it knew what

was on the telephone. Had the phones not contained any evidence material to the

investigation, then Remaley’s jail call could still have been interpreted as an

attempt to erase a phone but not as an attempt to obstruct justice. It was reasonable

for the government to withhold its objection until it had established that it had

grounds for the U.S.S.G. § 3B1.1 enhancement. The government’s delay was not

due to “inadvertence or negligence.” Rance, 583 F.3d at 1286. Furthermore,

Remaley has not shown that he was prejudiced by the untimeliness of the

objection. Therefore, the district court did not abuse its discretion by allowing the

government to raise the untimely objection.

                                          II.

      The district court increased Remaley’s base offense level under the U.S.S.G.

§ 3B1.1 adjustment, “Obstructing or Impeding the Administration of Justice.” We

review the findings of fact on which the court based the increase for clear error; we

review de novo the court’s determination that such findings supported the

adjustment. United States v. Doe, 661 F.3d 550, 556 (11th Cir. 2011).


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       Section § 3C1.1 provides for the increase of the defendant’s base offense

level if

       (1) the defendant willfully obstructed or impeded, or attempted to
       obstruct or impede, the administration of justice with respect to the
       investigation, prosecution, or sentencing of the instant offense of
       conviction, and (2) the obstructive conduct related to (A) the
       defendant’s offense of conviction and any relevant conduct; or (B) a
       closely related offense.

U.S.S.G. § 3C1.1. An example of conduct deemed “obstructive” under § 3C1.1 is

attempting to destroy or conceal or have another person destroy or conceal

evidence that is material to the investigation. Id. § 3C1.1 comment. (n.4(D)).

Conduct that warrants a § 3C1.1 adjustment for obstruction of justice usually

indicates that the defendant has not accepted responsibility for his criminal conduct

enough to earn an offense level decrease under U.S.S.G. § 3E1.1 for acceptance of

responsibility, but there are extraordinary cases where both adjustments may apply.

Id. § 3E1.1 comment. (n.4).

       We find no clear error in the district court’s finding that Remaley attempted

to have someone destroy or conceal government evidence or the court’s

determination that the finding justified a § 3C1.1 application. The first jail call

transcript revealed that Remaley instructed the listener to have two persons, who

were listed in Remaley’s contacts as being associated with Sprint, “shut down” a

number and “wipe it.” The second transcript showed Remaley was upset that

“they”—presumably Sheriff’s Office personnel—had “still been getting [his]
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calls.” From this evidence, the court reasonably inferred that Remaley tried to

prevent law enforcement officials from having access to information on the phone

he had with Sprint cellular service, which a government witness testified had

incriminating information on it. Although Remaley presented evidence of his

cooperation with authorities, this cooperation occurred a month or more after the

attempt to have the phone wiped, and there was testimony that the cooperation

attempts were limited and not very helpful. Thus, Remaley’s attempted

cooperation was not inconsistent with the finding of attempted obstruction of

justice. Finally, Remaley’s receipt of an acceptance of responsibility downward

adjustment under § 3E1.1 did not preclude the court from applying § 3B1.1,

especially when, as here, the attempt to obstruct justice occurred before the

acceptance of responsibility. See 3E1.1 comment. (n.4).

                                         III.

       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). The district court must impose a sentence “sufficient,

but not greater than necessary” to comply with the purposes of sentencing set out

in 18 § 3553(a)(2), including the need to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, and protect the public from the defendant’s future criminal conduct. See


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18 U.S.C. § 3553(a)(2). The weight given to any specific § 3553(a) sentencing

purpose is committed to the sound discretion of the district court. United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007). In addition to considering the § 3553(a)

needs for a particular sentence, the court must consider the nature and

circumstances of the defendant’s offense, the defendant’s history and

characteristics, the kinds of sentences available, the applicable Guidelines sentence

range, the pertinent policy statements of the Sentencing Commission, the need to

avoid unwarranted sentencing disparities, and the need to provide restitution to

victims. Id. § 3553(a)(1), (3)-(7).

      We examine whether the sentence was substantively reasonable in light of

the totality of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Although

we do not automatically presume that a sentence falling within the Guidelines

sentence range to be reasonable, we ordinarily expect such a sentence to be so.

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

      Remaley does not demonstrate that his sentence was substantively

unreasonable in light of the record and § 3553(a)’s sentencing objectives. The

sentence of 121 months’ imprisonment falls within the Guidelines sentence, an

indication of reasonableness. Hunt, 526 F.3d at 746. Furthermore, the sentence

reasonably meets the sentencing goals of § 3553(a)(2) in light of the totality of the

circumstances. As the district court noted, Remaley had an extensive criminal


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history, and had received a number of “breaks” by the state courts for similar drug

offenses. At the sentencing hearing, Remaley asserted that this instance was

different and he knew “he need[ed] to leave his life of criminal conduct behind.”

However, it was within the court’s discretion to decide how much weight to give

any specific § 3553(a) purpose, including those advanced by Remaley. Clay, 483

F.3d 739, 743 (11th Cir. 2007). Considering Remaley’s history and propensity for

returning to drug trafficking, a custodial sentence within the guideline range was

needed to promote respect for the law, provide just punishment, and deter him

from further criminal activity. See 18 U.S.C. § 3553(a)(2).

      Although the district court placed specific emphasis on Remaley’s criminal

history, the record indicates that it did not do so “single-mindedly” to the detriment

of all the other § 3553(a) factors. Remaley argues that he presented mitigating

evidence; however, the weight to be given a particular factor is within the

discretion of the court. The court’s questions of Remaley indicate that it heard the

factors he advanced, but simply did not find them convincing. Remaley also

argues that in order to avoid unwarranted sentencing disparities, he should be

sentenced similarly to his co-defendant. However, given that Remaley was the

leader of the organization, was responsible for a greater quantity of marijuana, and

had a higher criminal history, the disparity is not unwarranted.




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      We find Remaley’s sentence not substantively unreasonable. And since we

find no error in his conviction, the district court’s judgment is

      AFFIRMED.




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