          Case: 17-14930   Date Filed: 10/12/2018   Page: 1 of 11


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 17-14930
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 3:17-cr-00055-MCR-2



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                 versus

D’MARKUS JAMES,

                                                     Defendant - Appellant.

                      ________________________

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

                           (October 12, 2018)

Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      D’Markus James appeals his 108-month sentence, imposed after he pled

guilty to possession of a firearm by a convicted felon. On appeal, James argues

that the district court erred in calculating his base offense level under the

Sentencing Guidelines and in applying a four-level enhancement for trafficking of

firearms. After careful review, we affirm.

                               I.      BACKGROUND

      Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Special Agent Peter

Bondjuk met James and his codefendant Deangelo Black while working

undercover. Bondjuk bought methamphetamine from Black several times. Once,

Black told Bondjuk during a telephone call that he knew someone—later identified

as James—with a handgun and an assault rifle to sell. Bondjuk then met Black and

James, who previously had been convicted of a felony, to purchase the firearms.

During the sale, Bondjuk observed James wiping off the handgun with his t-shirt

before handing it to Black, who gave the handgun to Bondjuk. Black then pulled a

rifle with an attached ammunition feeding device out of his car. Bondjuk asked the

men if the gun was hot, meaning stolen, and James said it was not.

      James pulled Bondjuk aside to talk to him about firearms purchases. James

told Bondujk that “the shit you been buying, that’s coming from me,” and

explained that a “sawed-off” Bondjuk recently had bought in his undercover




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capacity had come from him. Doc. 106 at 20.1 According to Bondjuk, in layman’s

terms a “sawed-off” is an illegal firearm, although the firearm he previously had

purchased technically was legal. James told Bondjuk he could provide additional

firearms whenever Bondjuk was prepared to buy more, and Bondjuk told James

that he did “a little load to Chico in Alabama,” believing this made clear that he

was selling the firearms to others. Doc. 106 at 31. James responded that he would

be ready when Bondjuk was ready. Bondjuk asked for a reduced price for

purchasing multiple firearms, and James agreed, saying he would cut Bondjuk a

deal for buying two, three, or four firearms at a time.

      Bondjuk gave Black cash for the purchase of the guns, and Black handed

James part of the money.

      A grand jury indicted James on one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g), 924(a)(2), and 2. James pled

guilty pursuant to a written plea agreement. In anticipation of sentencing, the

probation prepared a presentence investigation report (“PSI”). The PSI set James’s

base offense level at 22 under U.S.S.G. § 2K2.1(a)(3)(A), which applies when “the

offense involved a . . . semiautomatic firearm that is capable of accepting a large

capacity magazine.” The PSI added a four-level enhancement under

U.S.S.G. § 2K2.1(b)(5), which applies when “the defendant engaged in the


      1
          “Doc. #” refers to the numbered entry on the district court’s docket.
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trafficking of firearms.” After applying a two-level enhancement for obstruction

of justice (namely, exposing Black as a cooperating witness), the PSI calculated a

total offense level of 28. With a criminal category of II, James’s guidelines range

was 87 to 108 months’ imprisonment.

      James objected to his base offense level and firearms trafficking

enhancement. As to his base offense level, James argued that the government was

required to prove, but did not, that the ammunition feeding device on the rifle he

and Black sold to Bondjuk was a large capacity magazine rather than an “attached

tubular device,” which the guidelines commentary specifically excludes from

coverage under U.S.S.G. § 2K2.1(a)(3)(A). See U.S.S.G. § 2K2.1 cmt. n.2. As to

the firearms trafficking enhancement, James argued that the government could not

prove that he knew the firearms he sold to Bondjuk would be disposed of

unlawfully.

      To prove the trafficking enhancement, the government called Bondjuk to

testify about his purchase of the two firearms from James and Black, and

specifically about his conversation with James about the sale of multiple firearms.

To prove the basis for the base offense level, the government called another ATF

agent to testify that the rifle James and Black sold to Bondjuk had attached to it a

large capacity magazine. The agent testified that she believed the rifle did not

involve a tubular device, but she cautioned that she was “not an expert on the legal


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definition” of a tubular device. Doc. 106 at 11. The district court noted that the

evidence the government presented was “weak” but nonetheless overruled James’s

objection. Id. at 47. The court also found the evidence of trafficking sufficient and

overruled James’s objection to the enhancement.

      The district court adopted the guidelines calculation in the PSI and

determined that a sentence of 108 months’ imprisonment was appropriate. The

district court also expressly stated that the 108 months “would be the same

sentence that I would impose even if I have erred in the . . . base offense level,”

citing the number of firearms that James admitted he had sold and his obstruction

of justice. Id. at 63-64.

      This is James’s appeal.

                            II.   STANDARDS OF REVIEW

      We review a district court’s findings of fact for clear error and its application

of the Sentencing Guidelines de novo. United States v. Maddox, 803 F.3d 1215,

1220 (11th Cir. 2015). We will reverse based on a district court’s erroneous

factual finding only if we are left with a “definite and firm conviction that a

mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,

1136-37 (11th Cir. 2004) (internal quotation marks omitted). We will not reverse a

sentence based on an erroneous calculation of the guideline range if the error is

harmless. United States v. Perkins, 787 F.3d 1329, 1341 (11th Cir. 2015). Where


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a district court clearly states that it would impose the same sentence regardless of

its resolution of a guidelines dispute, any error is harmless as long as the sentence

imposed is reasonable based on the sentencing factors in 18 U.S.C. § 3553(a).2

United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006).

                                      III.   ANALYSIS

       On appeal, James challenges his base offense level of 22 under U.S.S.G.

§ 2K2.1(a)(3)(A). He argues that his base offense level should instead have been

20 under U.S.S.G. § 2K2.1(a)(4). James also challenges the four-level

enhancement he received under U.S.S.G. § 2K2.1(b)(5) for trafficking of firearms.

For the reasons set forth below, we affirm. The district court’s determination that

the U.S.S.G. § 2K2.1(b)(5) enhancement applied was not clearly erroneous. And

the district court explicitly stated that it would have imposed a sentence of 108

months’ imprisonment even if it erred in calculating his base offense level. Had

James’s base offense level been 20, a sentence of 108 months still would have been

reasonable.

       We take James’s arguments out of turn, first addressing the sufficiency of

the evidence supporting the trafficking enhancement and then addressing the base

offense level.
       2
         The factors delineated in 18 U.S.C. § 3553(a) include the nature and circumstances of
the offense and history and characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence to criminal conduct, to protect the public from further crimes by the
defendant, and to provide the defendant with needed educational or vocational training; and the
kinds of sentences available and established sentencing ranges. See 18 U.S.C. § 3553(a)(1)-(5).
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A.    James’s Trafficking of Firearms Enhancement

      James argues that the district court clearly erred in determining that he

trafficked the firearms, asserting that the government failed to prove he knew

Bondjuk intended to dispose of the firearms unlawfully. We cannot agree.

      When the government seeks an enhancement under the Sentencing

Guidelines over a defendant’s factual objection, it “has the burden of introducing

sufficient and reliable evidence to prove the necessary facts by a preponderance of

the evidence.” United States v. Asante, 782 F.3d 639, 642 (11th Cir. 2015)

(internal quotation marks omitted). For the enhancement under U.S.S.G.

§ 2K2.1(b)(5) to apply, “the [g]overnment must prove that the defendant (1)

transported or transferred, or received with the intent to transport, two or more

firearms to someone else; (2) knowing that the defendant’s conduct would result in

another’s unlawful possession, use or disposal of those firearms.” Id. at 643.

James only challenges the second of these elements. The government can meet its

burden on the second element either by proving that the defendant had reason to

know that he was transferring the firearms to someone who could not legally

possess them or that he had reason to know that the individual intended to use or

dispose of the firearms unlawfully. Id. at 643-44. We look “not to what actually

happened to the firearms, but instead to the circumstances known to the




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defendant,” so the fact that a defendant transfers firearms to an undercover law

enforcement officer is immaterial. Id. at 644.

      The district court did not clearly err in finding sufficient evidence that the

circumstances known to James were such that he had reason to know that Bondjuk

(in his undercover capacity) intended to dispose of the firearms unlawfully. As a

convicted felon, James could not possess firearms lawfully; thus, it is reasonable to

infer that he understood the sale to Bondjuk would not be a legal sale. Further

supporting this inference was James’s conduct during the sale; specifically, that he

wiped down the pistol before handing it to Black to hand to Bondjuk. James also

admittedly had supplied (through third-parties) Bondjuk a number of firearms

before, including a “sawed-off,” a layman’s term for an illegal firearm. James

knew of additional suspicious circumstances: Bondjuk had bought several

firearms, including the “sawed-off,” and was interested in buying more; he and

James negotiated a discount if Bondjuk bought several. Finally, and importantly,

James had reason to know Bondjuk was reselling the firearms, because Bondjuk

told James he had done “a little load” to someone in Alabama. Doc. 106 at 31.

Based on these facts, the district court did not clearly err in finding that James had

reason to know that the firearms he sold would be disposed of unlawfully. We

therefore affirm the district court’s application of the four-level enhancement under

U.S.S.G. § 2K2.1(b)(5).


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B.    James’s Base Offense Level

      James also challenges his base offense level of 22, which the district court

adopted based on its finding that the rifle James sold Bondjuk had attached to it a

large capacity magazine. James points out that by the district court’s own

recognition the government’s evidence that the gun accepted a magazine and not

an “attached tubular device,” which cannot serve as the basis for a base offense

level of 22, was weak.

      We need not assess whether the district court clearly erred in finding that the

ammunition feeding device was a large capacity magazine rather than a tubular

device. The district court explicitly and unambiguously said that it would have

imposed the same sentence regardless of how it decided which base offense level

applied. This express statement is sufficient to trigger a harmless error analysis

under Keene, which means we may affirm James’s sentence if it is reasonable,

based on the assumption that the district court decided the base offense level issue

in James’s favor. Keene, 470 F.3d at 1348-49. Assuming the district court had

ruled in James’s favor, James’s base offense level would have been 20. With the

four-level enhancement for trafficking firearms and the two-level enhancement for

obstruction of justice, James’s total offense level would have been 26. With a

criminal history category of II, his resulting guidelines range would have been 70

to 87 months’ imprisonment. Then, we must ask whether a sentence of 108


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months’ imprisonment, a 21-month variance under the revised guidelines range, is

reasonable under the sentencing factors in 18 U.S.C. § 3553(a). We conclude that

it is.

         We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the . . . court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (internal quotation marks omitted). Here, we

cannot say the district court abused its discretion when it weighed the 18 U.S.C.

§ 3553(a) factors to arrive at a 108-month sentence. The district court heard

extensive argument from both sides on the mitigating and aggravating

circumstances of James’s offense and his personal history. When considering the

nature and circumstances of the offense, the district court emphasized that James

had admitted he was the source of several other firearms that individuals had sold

to Bondjuk. The court also emphasized that James had obstructed justice by

exposing his codefendant Black as a cooperating witness, a fact that endangered

Black as he served his federal sentence. And the district court emphasized the

“aggravated” nature of James’s criminal history, which included aggravated assault

with a firearm and convictions for battery. Doc. 106 at 62. Based on these

circumstances, the district court expressly weighed the § 3553(a) factors, finding

“particularly significant” the “need to protect the community” and for general

deterrence. Id. at 63. The decision about how much weight to assign a particular


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sentencing factor is “committed to the sound discretion of the district court.”

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (internal quotation

marks omitted). Considering the care with which the district court analyzed the

§ 3553(a) factors as applied to this case, we find no abuse of discretion in the

court’s imposition of a sentence of 108 months, even if that sentence had been a

21-month upward variance. Thus, any miscalculation of the base offense level did

not affect the district court’s selection of the sentence imposed; it was harmless.

Perkins, 787 F.3d at 1341.

                               IV.   CONCLUSION

      James cannot show that the district court reversibly erred in imposing a

sentence of 108 months’ imprisonment. We therefore affirm his sentence.

      AFFIRMED.




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