              Case: 19-11200     Date Filed: 04/24/2020   Page: 1 of 8



                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-11200
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 0:18-cr-60231-CMA-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

TONY DEVON SPELLS,

                                                              Defendant-Appellant.

                           ________________________

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

                                 (April 24, 2020)
Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Tony Spells appeals his 48-month sentence for making a false statement in

information required to be kept in the records of a licensed firearm dealer. He
                 Case: 19-11200        Date Filed: 04/24/2020        Page: 2 of 8



argues that the district court miscalculated his base offense level under the United

States Sentencing Guidelines and that his sentence is disproportionately harsher

than sentences imposed on other defendants convicted of making false statements. 1

After careful review, we affirm.

                                                 I.

       In April 2018, Spells applied to purchase a firearm at a pawn shop in Fort

Lauderdale. On the paperwork for purchase, Spells indicated that he had never

been convicted of a felony. At the time, however, Spells had at least seven felony

convictions and knew he was a convicted felon. The pawn shop submitted Spells’s

paperwork to the National Instant Criminal Background Check System, which

denied Spells’s application to buy a firearm.

       In December 2018, a superseding indictment charged Spells with making a

false statement to a federally licensed firearm dealer in violation of 18 U.S.C.

§ 922(a)(6) and knowingly making a false statement in information required to be

kept in the records of a federally licensed firearm dealer in violation of 18 U.S.C.




       1
          In his reply brief, Spells argues that his plea was involuntary and his indictment was
defective. In support, he cites Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019).
Because Spells did not raise these arguments in his initial brief (filed after Rehaif was decided),
the government moved to strike Spells’s reply brief. This Court granted that motion. For this
reason, we do not consider these arguments. See Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen,
815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (“It is well settled that a party cannot argue an issue
in its reply brief that was not preserved in its initial brief.”).


                                                 2
               Case: 19-11200     Date Filed: 04/24/2020      Page: 3 of 8



§ 924(a)(1)(A). In January 2019, Spells pled guilty to the second count before a

magistrate judge, and the district court accepted his plea.

      Before Spells was sentenced, the Probation Office prepared a presentence

investigation report (“PSR”). The PSR described Spells’s criminal history,

including two Florida domestic-violence-related convictions from 2003 and 2010.

The PSR also noted that Spells was served with two temporary domestic-violence

injunctions related to these convictions, as well as four domestic-violence

injunctions stemming from other incidents. On this basis, the PSR assigned Spells

a criminal history category of IV.

      The PSR determined that Guideline § 2K2.1 governed Spells’s offense and

assigned Spells a base level offense of 24 pursuant to § 2K2.1(a)(2). Spells

received a reduction of 3 levels for accepting responsibility and timely notifying

the government of his intent to plead guilty, putting his total offense level at 21.

      At sentencing, the district court calculated a guideline range of between 57-

and 60-months imprisonment. Spells argued that he should receive a downward

variance, based on a 30-month sentence another judge recently imposed on a

defendant with similar criminal history convicted of a similar offense. The court

acknowledged that the other defendant’s case was “comparable” to Spells’s, but

noted that Spells had “refused to accept responsibility until the very, very end”

while the other defendant pled guilty “early on.” Spells also argued that the “much



                                           3
               Case: 19-11200    Date Filed: 04/24/2020    Page: 4 of 8



lower” recommended guideline ranges for other federal false-statement offenses

counseled in favor of a downward variance in his case. Having heard these

arguments, the court sentenced Spells to 48-months imprisonment, a slight

downward variance from his recommended guideline range. Spells timely

appealed.

                                         II.

      We review de novo whether the district court applied the correct sentencing

guideline to a defendant’s underlying conduct. United States v. Belfast, 611 F.3d

783, 823 (11th Cir. 2010). We review for abuse of discretion whether the district

court arrived at an unreasonable sentence after weighing the sentencing factors set

out in 18 U.S.C. § 3553(a). See United States v. Irey, 612 F.3d 1160, 1188–89

(11th Cir. 2010) (en banc).

                                         III.

                                         A.

      First, Spells says his base offense level should not have been calculated

under Guideline § 2K2.1, which deals with “Unlawful Receipt, Possession, or

Transportation of Firearms or Ammunition[ and] Prohibited Transactions

Involving Firearms or Ammunition.” He argues that applying Guideline § 2K2.1

to his case results in great disparity between his sentence and the sentences of other

defendants convicted of making a false statement. Spells cites the Sentencing



                                          4
               Case: 19-11200    Date Filed: 04/24/2020      Page: 5 of 8



Guidelines’ base offense levels for defendants convicted of making false

statements in immigration and citizenship applications, bankruptcy proceedings,

passport applications, and testimony given under oath, among others.

      The district court correctly calculated Spells’s base offense level under

Guideline § 2K2.1. District courts must determine the Guidelines provision that

applies to a given offense using the Statutory Index at Appendix A of the

Guidelines Manual. See USSG §§ 1B1.1(a)(1), 1B1.2(a). The Statutory Index

states that the appropriate Guidelines provision for 18 U.S.C. § 924(a) is § 2K2.1.

See USSG App. A. Spells pled guilty to violating 18 U.S.C. § 924(a)(1)(A), and

thus his guideline range was appropriately calculated using § 2K2.1. See Belfast,

611 F.3d at 824–25 (affirming application of a Guidelines provision listed with the

defendant’s offense of conviction in the Statutory Index).

                                          B.

      Next, Spells asserts that the district court improperly weighed the 18 U.S.C.

§ 3553(a) sentencing factors. He says the district court did not properly consider

sentencing disparities between himself and defendants convicted of making false

statements on other types of applications. We reject his argument because the

record shows that the district court compared Spells’s sentence to the sentences of

similarly situated defendants in order to avoid disparity.




                                          5
               Case: 19-11200      Date Filed: 04/24/2020    Page: 6 of 8



      Spells is correct that district courts are required “to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” United States v. Docampo, 573 F.3d 1091, 1101 (11th

Cir. 2009) (quoting 18 U.S.C. § 3553(a)(6)). But “[a] well-founded claim of

disparity . . . assumes that apples are being compared to apples.” Id. (quotation

marks omitted). Spells, who made false statements in order to get a firearm, was

not similarly situated to defendants who have made false statements about

citizenship or bankruptcy. See United States v. Jayyousi, 657 F.3d 1085, 1118

(11th Cir. 2011) (explaining that district courts “should not draw comparisons to

cases involving defendants who were convicted of less serious offenses” when

assessing potential sentencing disparities).

      Beyond this, the district court entertained and rejected Spells’s argument that

he was similarly situated to defendants convicted of different offenses. Spells

argued at sentencing that his base offense level was too high because it was

calculated under Guideline § 2K2.1, the firearm offenses guideline. He asserted

“the sentencing commission put [his offense] in with the firearms offenses” and

“that’s what drives the offense level so high.” He offered that “there are other

offenses . . . [like] a false statement to a passport” or “lying to a federal agent

[where] the guideline’s much lower.” He reminded the court that he “lied on a

form” and “merely gave [the pawn shop] $10 and filled out the form.” On this



                                            6
               Case: 19-11200    Date Filed: 04/24/2020    Page: 7 of 8



basis, he asked the district court for a downward variance and to sentence him to

the least amount of time possible. The district court considered this request.

      The court then pronounced Spells’s sentence. The court expressly compared

Spells to other defendants with similar criminal history and offenses of conviction.

The court rejected a comparison to one defendant who received a five-month

sentence, because “th[at] defendant did not have the criminal history” that Spells

did. The court was more persuaded by a different case, in which a defendant with

a criminal history category of V received a sentence of 30-months incarceration for

similar conduct. The court ultimately concluded that Spells should not receive a

30-month sentence because he had waited until “the eve of trial” to plead guilty,

unlike the other defendant. This consideration was proper. Cf. Docampo, 573

F.3d at 1101 (“We have held that defendants who cooperate with the government

and enter a written plea agreement are not similarly situated to a defendant who . . .

proceeds to trial.”).

      In addition to comparing Spells’s case to similarly situated cases, the court

also considered the “troubling” nature of Spells’s offense in light of his criminal

history, including his “problem[s] with anger control and particularly domestic

violence.” See 18 U.S.C. § 3553(a)(1) (directing courts to consider “the nature and

circumstances of the offense and the history and characteristics of the defendant”).

And the court expressed that “[t]he sentence I impose should promote respect for



                                          7
               Case: 19-11200      Date Filed: 04/24/2020    Page: 8 of 8



the law and should serve to deter you as well as others.” See id. § 3553(a)(2)(A),

(B) (listing “respect for the law” and “adequate deterrence” as sentencing factors).

The court then imposed a sentence nine months below the recommended guideline

range. In light of the district court’s thorough discussion, it is clear the court

reasonably weighed the § 3553(a) sentencing factors. We therefore affirm Spells’s

48-month sentence.

      AFFIRMED.




                                            8
