               Case: 13-14046     Date Filed: 03/21/2014   Page: 1 of 5


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 13-14046
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 1:13-cr-20382-CMA-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                        versus

ODUMEQWU INGRAM,

                                                     Defendant-Appellant.

                          __________________________

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

                                  (March 21, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Odumeqwu Ingram appeals his 188-month sentence for possession with

intent to distribute 28 grams or more of crack cocaine. After review of the record

and the parties’ briefs, we affirm.
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                                          I
      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      Following a number of crack cocaine sales transactions with an undercover

agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Mr. Ingram

was charged with and ultimately pled guilty to possession with intent to distribute

28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii). Because he was charged with a controlled substance offense and

had at least two prior felony convictions for crimes of violence, Mr. Ingram was

classified as a career offender, with a corresponding advisory range under the

Sentencing Guidelines of 188 to 235 months’ imprisonment.

      Mr. Ingram objected to the pre-sentence investigation report and requested a

downward variance inasmuch as the report relied on guilty pleas to two prior

offenses of which he claimed to be innocent.           After hearing Mr. Ingram’s

testimony to this effect at his sentencing hearing, the district court stated that it

“accept[ed] his pleas of guilty at face value, notwithstanding his statements of

innocence [ ] to the contrary. The law requires that Heck v. Humphrey [512 U.S.

477 (1994)] says that he pled guilty. And to now say I’m—I’m innocent of those

and you shouldn’t count those offenses against me is very unpersuasive as a basis

to grant a variance.”    The district court imposed a sentence of 188 months’


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imprisonment followed by four years’ supervised release, explaining that it based

its sentence, in large part, on Mr. Ingram’s previous criminal conduct, the failure of

prior sentences to deter him from engaging in criminal activity, and the need to

avoid sentencing disparities with other defendants in his criminal history category.

In response to a request for clarification from Mr. Ingram’s counsel, the district

court indicated that it denied the requested downward variance because it did not

credit Mr. Ingram’s testimony regarding his alleged innocence, rather than because

it believed it was compelled to impose a sentence within the advisory guidelines

range as a matter of law.

      On appeal, Mr. Ingram argues that his sentence is substantively

unreasonable because the district court improperly weighed his specific

characteristics and imposed a sentence lengthier than necessary to meet the

objectives set forth in 18 U.S.C. § 3553(a). Specifically, Mr. Ingram maintains

that the district court denied him a downward variance after erroneously presuming

that he committed the two prior crimes to which he pled guilty.

                                         II

      We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). This standard

applies “[r]egardless of whether the sentence imposed is inside or outside the

Guidelines range.” Id. Even if the district court's sentence is more severe or more


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lenient than the sentence we would have imposed, we will only reverse if we are

“left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the [18 U.S.C.] § 3553(a) factors by arriving at a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

                                          III

      Mr. Ingram principally challenges his sentence on the ground that the district

court denied his requested variance after it improperly presumed his guilt as to the

two prior offenses to which he pled guilty. This argument lacks merit. The district

court explicitly clarified that it denied the variance because it did not credit Mr.

Ingram’s testimony, rather than because it believed it was legally bound to

sentence him within the advisory guidelines. We find no error in the district

court’s credibility determination. See United States v. Pham, 463 F.3d 1239, 1244

(11th Cir. 2006) (affording “’substantial deference’” to district court’s credibility

determinations at sentencing); United States v. Ramirez-Chilel, 289 F.3d 744, 749

(11th Cir. 2002) (“Credibility determinations are typically the province of the fact

finder because the fact finder personally observes the testimony and is thus in a

better position than a reviewing court to assess the credibility of witnesses.”).




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      Nor did the district court abuse its discretion in its weighing of the § 3553(a)

factors. We ordinarily expect, but do not automatically assume, that a sentence

within the applicable advisory guidelines range is reasonable. See United States v.

Victor, 719 F.3d 1288, 1291 (11th Cir. 2013) (citing United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008)). The district court’s sentence in this case fell at the

low end of the guideline range of 188 to 235 months’ imprisonment. The district

court considered Mr. Ingram’s personal and criminal history and concluded that a

sentence of 188 months’ imprisonment comported with the § 3553(a) factors. It

also observed the fact that previous, lighter sentences for similar crimes had not

deterred Mr. Ingram, and expressed concern that granting Mr. Ingram’s requested

downward variance would create a sentencing disparity with other defendants in

his criminal history category. Under these circumstances, we find no abuse of

discretion.

                                          IV

      Mr. Ingram’s 188-month sentence is affirmed.

      AFFIRMED.




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