           Case: 13-12186   Date Filed: 03/31/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12186
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:12-cr-00003-RS-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JAMES HARDESTY MOORE,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 31, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      James Hardesty Moore appeals his 96-month sentence after pleading guilty

to conspiring to possess with intent to distribute 1,000 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on Moore’s

substantial assistance in a criminal investigation, the government moved under

U.S.S.G. § 5K1.1 for a downward departure from the 120-month mandatory

minimum sentence that Moore faced under 21 U.S.C. § 841(b)(1)(B). On appeal,

Moore argues that his sentence is procedurally and substantively unreasonable

because the district court did not properly consider his advanced age, serious health

issues, and military service. Upon review of the record and consideration of the

parties’ briefs, we affirm.

      We review the reasonableness of a sentence for abuse of discretion. United

States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc). Under this

standard, we will not reverse simply because we would have imposed a different

sentence than that imposed by the district court. Id. at 1191. The district court

need only impose a sentence that is within the range of reasonable sentences. Id. at

1190. The party challenging the sentence has the burden of demonstrating that the

sentence is unreasonable in light of the record and factors outlined in 18 U.S.C.

§ 3553(a). United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).




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      In evaluating the reasonableness of a sentence, we follow a two-step process

by first determining whether the sentence is procedurally reasonable, and then if

necessary, determining whether the sentence is substantively reasonable. Id. at

1323-24. A sentence may be procedurally unreasonable if the sentencing court

fails to consider the factors set forth in § 3553(a), considers the Sentencing

Guidelines mandatory, fails to properly calculate the appropriate guideline range,

or fails to adequately explain the chosen sentence. Id. at 1323. The § 3553(a)

factors are: the nature and circumstances of the offense and history and

characteristics of the defendant; the need for the sentence to reflect the seriousness

of the offense; the need to promote respect for the law, afford adequate deterrence,

and protect the public; the need to provide the defendant with training, education,

and medical care; the kinds of sentences available; the Sentencing Guidelines

range for the offense; the Sentencing Commission policy statements; the need to

avoid unwarranted sentencing disparities; and the need to provide victims with

restitution. 18 U.S.C. § 3553(a)(1)-(7). The district court need not discuss or

explicitly state on the record each § 3553(a) factor. Gonzalez, 550 F.3d at 1324.

      In reviewing for substantive reasonableness, we examine the totality of the

circumstances and ask “whether the statutory factors in § 3553(a) support the

sentence in question.” Id. “The weight to be accorded any given § 3553(a) factor

is a matter committed to the sound discretion of the district court.” United States v.


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Clay, 483 F.3d 739, 743 (11th Cir. 2007). We will only remand for resentencing

if we are “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” Id.

      Although statutory mandatory minimums are generally preclusive, the

district court may impose a sentence below the mandatory minimum in certain

limited circumstances. See 18 U.S.C. § 3553(e), (f); United States v. Castaing-

Sosa, 530 F.3d 1358, 1360-61 (11th Cir. 2008). Under U.S.S.G. § 5K1.1, the

government may file a motion informing the court that the defendant provided

substantial assistance in the investigation or prosecution of another individual.

U.S.S.G. § 5K1.1. If the government files such a motion, the court may depart

downward under the Sentencing Guidelines, and the resulting sentence may fall

below the mandatory minimum penalty. Id.; Castaing-Sosa, 530 F.3d at 1360-61

      Here, Moore has failed to show that his total 96-month sentence was

procedurally or substantively unreasonable. As to procedural reasonableness, the

district court listened to the parties’ arguments, noted that the Guidelines were

advisory, stated that it had considered the § 3553(a) factors, and explained its

reasons for imposing the 96-month sentence. See Gonzalez, 550 F.3d at 1323. The

court also considered the government’s § 5K1.1 motion based on Moore’s


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substantial assistance, and imposed a sentence below the 120-month mandatory

minimum sentence of imprisonment. Moore’s argument that the district court

procedurally erred by failing to mention his mitigating evidence is unavailing

because the district court considered the § 3553(a) factors and determined that the

sentence was necessary to provide just punishment and to afford adequate

deterrence to others. See id. at 1324; see also United States v. Amedeo, 487 F.3d

823, 833 (11th Cir. 2007) (holding that a district court did not commit procedural

error where it did not discuss the defendant’s mitigating evidence because the

district court considered the § 3553(a) factors). Thus, Moore has not shown

procedural error.

      Turning to substantive reasonableness, Moore’s total sentence was

substantively reasonable in light of the § 3553(a) factors and totality of the

circumstances. See Gonzalez, 550 F.3d at 1324. As the district court noted, the

96-month sentence adequately addressed the nature and circumstances of Moore’s

criminal conduct, which included his involvement in a large-scale marijuana

distribution conspiracy, and the need to impose a sentence that afforded adequate

deterrence to others who commit similar offenses. See 18 U.S.C. § 3553(a)(1),

(a)(2)(B); Gonzalez, 550 F.3d at 1324. Moore’s 13-year history of drug- and

firearms-related convictions, as well as evidence that he distributed marijuana for

25 to 30 years, also supports his sentence.


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      While Moore presented mitigating evidence to the district court—his

advanced age, health problems, and military involvement—the weight to be

afforded to the § 3553(a) factors is within the sound discretion of the district court.

See Clay, 483 F.3d at 743. Moore has not demonstrated that his 96-month

sentence was outside the range of reasonable sentences the district court could

impose, because although it was above his guidelines range of 63 to 78 months’

imprisonment it was below the 120-month statutory mandatory minimum sentence

and significantly below the statutory maximum sentence of life imprisonment. See

21 U.S.C. § 841(b)(1)(B); Irey, 612 F.3d at 1190; see also Gonzalez, 550 F.3d at

1324 (explaining that a sentence well below the statutory maximum sentence

available for an offense can be an indicator of reasonableness).

      AFFIRMED.




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