           Case: 13-13482   Date Filed: 02/06/2014   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13482
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 3:13-cr-00034-RV-2



UNITED STATES OF AMERICA,

                                                              Plaintiff -Appellee,


                                  versus


JAMES E. ATIABI,


                                                         Defendant -Appellant.

                      ________________________

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

                            (February 6, 2014)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 13-13482     Date Filed: 02/06/2014    Page: 2 of 3


      James Eric Atiabi appeals his sentence of 162 months of imprisonment after

pleading guilty to one count of conspiracy to possess and distribute

pseudoephedrine. 21 U.S.C. §§ 841(c)(2), 846. Atiabi argues that his sentence

below the advisory guideline range is unreasonable because his criminal history

category of VI overstated his criminal history, the district court miscalculated his

base offense level, and the district court failed to give enough weight to his history

of mental health issues and fundamental problems with respect to

methamphetamine and pseudoephedrine under the Sentencing Guidelines. We

affirm.

      We review the reasonableness of a sentence under a deferential standard for

abuse of discretion. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir.

2010) (en banc). We may review whether a district court erred in concluding that

it lacked the authority to apply a downward departure, United States v. Hadaway,

998 F.2d 917, 919 (11th Cir. 1993), but we lack jurisdiction to review a refusal to

apply a downward departure, United States v. Winingear, 422 F.3d 1241, 1245

(11th Cir. 2005). We review for clear error a finding of the quantity of drugs used

to calculate a base offense level. United States v. Simpson, 228 F.3d 1294, 1298

(11th Cir. 2000). A district court may base a finding on undisputed facts contained

in the presentence investigation report. United States v. Philidor, 717 F.3d 883,

885 (11th Cir. 2013).


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               Case: 13-13482    Date Filed: 02/06/2014    Page: 3 of 3


      Atiabi’s sentence is reasonable. To the extent that Atiabi contends that the

district court should have granted him a downward departure sua sponte, we lack

jurisdiction to review a refusal to depart downward. Winingear, 422 F.3d at 1245.

And there is nothing in the record to suggest that the district court misunderstood

whether it had the authority to grant a departure. Hadaway, 998 F.2d at 919. The

court also committed no clear error in calculating Atiabi’s drug quantity to

establish his base offense level. The district court relied on undisputed facts in the

presentence investigation report and Atiabi’s signed statement of facts to determine

the drug quantity. Philidor, 717 F.3d at 885. The use of attempted purchases also

complied with guidance on relevant conduct found in the Sentencing Guidelines.

Simpson, 228 F.3d at 1298. Atiabi’s sentence is below the advisory guideline

range and well below the statutory maximum sentence. The district court did not

abuse its discretion.

      AFFIRMED.




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