          Case: 14-12157   Date Filed: 06/02/2015   Page: 1 of 6


                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-12157
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:13-cr-00124-JES-DNF-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

BURSON AUGUSTIN,

                                                        Defendant-Appellant.

                     ________________________

                           No. 14-12221
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:13-cr-00123-JES-DNF-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus
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BURSON J. AUGUSTIN,
a.k.a. Zoe,

                                                              Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                   (June 2, 2015)

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Burson Augustin appeals his 16-month sentence,

imposed near the low end of the advisory guideline range, after pleading guilty to

distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C),

and also appeals the revocation and sentence imposed for violating his supervised

release based on the cocaine distribution charge, 18 U.S.C. § 3583(e)(3). On

appeal, Augustin argues that his 16-month sentence for distribution of cocaine is

substantively unreasonable because he should have been granted a two-level

variance in his total offense level in light of (1) an expected amendment to the drug

quantity table in the Sentencing Guidelines and (2) a memorandum from the




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United States Attorney General dated August 12, 2013 (“August 12

Memorandum”). 1 After careful review, we affirm.

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

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

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)).       In reviewing the “‘substantive reasonableness of [a] sentence

imposed under an abuse-of-discretion standard,’” we consider the “‘totality of the

circumstances.’” Id. at 1190 (quoting Gall v. United States, 552 U.S. 38, 51

(2007)). The district court must impose a sentence “sufficient, but not greater than

necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a). 2 “[W]e will

not second guess the weight (or lack thereof) that the [court] accorded to a given [§

3553(a)] factor ... as long as the sentence ultimately imposed is reasonable in light

of all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872

(11th Cir. 2010) (quotation, alteration and emphasis omitted). The party

challenging the sentence bears the burden to show it is unreasonable. United

1
  On appeal, Augustin does not challenge the revocation of his supervised release nor the
sentence imposed for a violation of his supervised release. Therefore, those issues are
abandoned. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
2
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).              While we do not

automatically presume a sentence falling within the guideline range to be

reasonable, we ordinarily expect that sentence to be reasonable. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). Moreover, a sentence imposed well

below the statutory maximum penalty is an indicator of a reasonable sentence. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the

sentence was reasonable in part because it was well below the statutory maximum).

      First, we are unpersuaded by Augustin’s claim for a variance in his sentence

for distribution of cocaine based on an expected amendment to the drug quantity

table in the Sentencing Guidelines. While the amendment Augustin expected took

effect on November 1, 2014 as Amendment 782, Augustin does not cite to any

controlling precedent for the proposition that the district court abused its discretion

by not granting a variance based on a pending amendment that may or may not

take effect. U.S.S.G. App. C, Amend. 782 (2014). As the record reflects, the

district court considered Augustin’s request for a variance, but denied the request

because it was uncertain if the amendment would be adopted and made retroactive.

Thus, the district court did not abuse its discretion by sentencing within the

guideline range rather than anticipating a future amendment to the Guidelines.

      Nor are we persuaded by Augustin’s argument for a variance based on the

August 12 Memorandum. We’ve held that “Justice Department policies . . . are


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merely matters relating to the internal operations of the Justice Department and

create no enforceable right on the part of a criminal defendant.” United States v.

Bagnell, 679 F.2d 826, 832 (11th Cir. 1982). Thus, in Bagnell, we recognized it

was “solely within the province of the Justice Department to determine whether an

internal policy against forum shopping in obscenity cases should bar prosecution in

a given case.” Id.

      The record reveals that Augustin asked the district court to take judicial

notice of it, but he did not submit it into the record or include it in his appendix on

appeal.   The August 12 Memorandum appears to be available on the Justice

Department’s website at http://www.justice.gov/oip/docs/ag-memo-department-

policypon-charging-mandatory-minimum-sentences-recidivist-enhancements-in-

certain-drugcases.pdf (last visited Apr. 27, 2015).             Assuming that the

memorandum on the Justice Department’s website is the August 12 Memorandum

cited by Augustin, it addresses Justice Department policy on charging mandatory

minimum sentences and recidivist enhancements in certain drug cases, issues that

are irrelevant to Augustin’s sentence. But regardless of whether this memorandum

is in fact the August 12 Memorandum to which Augustin refers, we have noted that

internal Justice Department policies do not create an enforceable right for the

defendant. See Bagnell, 679 F.2d at 832. Therefore, the August 12 Memorandum




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does not support Augustin’s argument that the district court erred by denying his

request for a variance.

      Further, Augustin admitted that he sold cocaine to an informant while he

was on supervised release. In light of these facts, Augustin’s 16-month sentence is

not unreasonable because it is not outside the range of reasonable sentences under

the § 3553(a) factors. Augustin’s 16-month sentence was also within his advisory

guideline range and well below the statutory maximum sentence of 20 years. See

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); Gonzalez, 550 F.3d at 1324. As a result,

Augustin has not met his burden to show that his sentence was unreasonable in

light of the record and § 3553(a).

      AFFIRMED.




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