           Case: 12-16451   Date Filed: 08/20/2014   Page: 1 of 19




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16451
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:11-cr-00217-HLA-JRK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RONALD WALKER,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 20, 2014)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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       Ronald Walker and twelve others were indicted for conspiring, in violation

of 21 U.S.C. § 846, to manufacture 50 or more grams of methamphetamine

between late 2006 through mid-2011, in violation of 21 U.S.C. § 841(a)(1). All

pled guilty to the charge except Walker, who stood trial. 1 Six of the defendants

testified as prosecution witnesses against Walker, and the jury found him guilty as

charged. The District Court thereafter sentenced Walker to a prison term of 300

months. He appeals his conviction and sentence. We affirm.

                                             I.

       We begin our review by considering Walker’s challenge to his conviction.

He contends that the District Court should have granted his motion for judgment of

acquittal or awarded him a new trial on the ground that a material variance

occurred between the charge in the indictment and the proof at trial—that is, the

Government’s proof established multiple conspiracies instead of the single

conspiracy alleged in the indictment. Here is what the proof—in particular the

testimony of Walker’s codefendants—established.

       Walker lived on Bullrush Court in Clay County, Florida, with his girlfriend,

Danielle Lutz, and their small child. Sometime in 2006, Walker acquired a bar



       1
         One defendant who pled guilty, Shaun Fernandez, appealed his sentence. We affirmed.
United States v. Fernandez, 515 F.App’x 796 (11th Cir. 2013).
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near his residence; he named it Katt’s Hideaway. 2 He also learned how to make

methamphetamine (“meth”), by using the red phosphorous from the strike plates

on matchbooks and pseudoephedrine (“pills”) bought from a drug store. 3 Soon,

many of the bar’s customers began bringing him these precursors, and he turned

them into meth. For every box of pills a customer provided, Walker gave the

customer a half-gram of meth and sold what was left.

       Walker usually cooked the meth in a shed adjacent to his residence or in a

camper kept near the bar. The defendants who plead guilty described Walker’s

operation.

       Eva Bujno, at times a bartender, became friends with Walker before he

opened Katt’s Hideaway; both were heavy drug users. He taught her how to make

meth. Between February 2, 2007, and March 2, 2011, she purchased 288 pills.4

All were used by Walker to cook meth. Jenifer Wilson, a bartender and an eight-

year meth addict, bought pills for Walker to cook into meth from sometime in 2006

through 2009. In all, she purchased and gave to Walker or one of his bartenders

5,068 pills. Thomas Warner, a pipefitter and drug addict, was hooked on crack

from 2004 to 2008; then he switched to meth. Between July 23, 2009, and July 30,



       2
          Walker sold the bar in January 2010.
       3
          Walker also used pills that were the functional equivalent of pseudoephedrine. For
ease of discussion, we refer to pseudoephedrine and the equivalent to “pills.”
        4
          The Government introduced into evidence the records maintained by the pharmacies
that sold pills to Walker and his codefendants, which showed the quantity of pills purchased.
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2010, he provided Walker with 960 pills and received meth in return. After

Walker’s bar closed, he moved in with codefendant Shaun Fernandez.

       Lucy Dasher was a bartender at Katt’s Hideaway in 2009. She had become

acquainted with Walker before that. Between November 14, 2008, and February

21, 2011, she bought 2,292 pills and gave them to Walker. In exchange for a box

of Sudafed, a box of pills, and two bottles of iodine, Walker would give her a gram

of meth. William Foster, a meth addict, bought 2,038 pills between November 12,

2008, and April 13, 2012. He frequented Katt’s Hideaway once a week and would

get high there with Walker. He provided Walker with pills on occasion. He also

gave Cindy Kirkland pills, and she turned them over to Walker.

       Danielle Lutz was the last codefendant to testify. She came to Florida in

December 2007 and moved in with Walker shortly thereafter. She stayed with

Walker until her arrest on August 30, 2011. Between April 14, 2007, and June 3,

2011, Lutz purchased 3,258 pills. She prepared the pills for cooking by grinding

them up in a coffee grinder in her kitchen. Walker did the cooking.5


       We review de novo a district court’s denial of a motion for judgment of

acquittal. See Fed. R. Crim. P. 29. United States v. Gamory, 635 F.3d 480, 497

(11th Cir. 2011). However, in doing so, we view the totality of the evidence in the


       5
         Between February 5, 2007, and August 28, 2011, Walker purchased 4,300 pills. He
cooked those pills and the pills the codefendants and others provided into meth.
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light most favorable to the Government, drawing all reasonable inferences and

credibility choices in favor of the jury’s verdict. Id. If a reasonable jury could

have found the defendant guilty beyond a reasonable doubt, then we will not

overturn the jury’s determination. Id. To the extent that an appellant’s argument

“depends upon challenges to the credibility of witnesses, the jury has exclusive

province over that determination and the court of appeals may not revisit the

question.” United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009)

(internal quotation marks omitted).

      “A material variance between an indictment and the government’s proof at

trial occurs if the government proves multiple conspiracies under an indictment

alleging only a single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450

(11th Cir. 1996). “We will uphold the conviction unless the variance (1) was

material and (2) substantially prejudiced the defendant.” Id. “To determine

whether a variance was material, we look at the evidence in the light most

favorable to the government and ask whether a reasonable trier of fact could have

determined beyond a reasonable doubt that a single conspiracy existed.” United

States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009). Three factors in particular

are helpful in making this determination: “(1) whether a common goal existed; (2)

the nature of the underlying scheme; and (3) the overlap of participants.” Id.

(internal quotation marks omitted).


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      Even when we find a material variance, however, it is still incumbent upon

the defendant to demonstrate that his substantial rights were prejudiced by the

variance. United States v. Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997); United

States v. Jones, 913 F.2d 1552, 1560 (11th Cir. 1990) (“A variance between

allegations and proof is reversible error only when it actually prejudices the

defendant.”). To demonstrate substantial prejudice, the defendant must show one

of two things: (1) that the proof at trial differed so greatly from the charges that he

was unfairly surprised and was unable to prepare an adequate defense; or (2) that

there were so many defendants and separate conspiracies before the jury that there

is a substantial likelihood that the jury transferred proof of one conspiracy to a

defendant involved in another conspiracy. Jones, 913 F.2d at 1561.

      To obtain a conviction under 21 U.S.C. § 846, the Government had to prove

beyond a reasonable doubt, even if only by circumstantial evidence, that Walker

and one or more of his codefendants conspired to manufacture 50 grams or more of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). The Government did not

have to show that the conspirators knew all of the details or participated in every

aspect of the conspiracy, only that the Walker “knew the essential nature of the

conspiracy.” United States v. Garcia, 405 F.3d 1260, 1269–70 (11th Cir. 2005)

(internal quotation marks omitted).




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      The jury was properly instructed on the elements of the conspiracy offense

and heard argument from both the Government and Walker regarding multiple

conspiracies and the single overarching conspiracy. Its verdict is an implicit

finding that the evidence proved the existence of the single charged conspiracy.

See Jones, 913 F.2d at 1561. The testimony of Walker’s codefendants constituted

substantial evidence of an overarching conspiracy. See United States v. Edouard,

485 F.3d 1324, 1347–48 (11th Cir. 2007). This testimony showed that Walker and

his codefendants got together to have Walker—and sometimes a codefendant—

manufacture methamphetamine. Therefore, the District Court did not err in

denying Walker’s motion for judgment of acquittal or abuse its discretion in

denying his motion for a new trial. We turn then to Walker’s challenges to his

sentence.

                                         II.

                                         A.

      Under 21 U.S.C. § 841(b)(1)(A), a statutory minimum 10-year sentence and

a maximum sentence of life imprisonment apply to the manufacture of controlled

substances, except in the case of offenders with a prior felony drug conviction, in

which case the statutory mandatory minimum sentence is 20 years. 21 U.S.C.

§ 841(b)(1)(A). For the 20-year statutory minimum to apply based on a prior

felony drug conviction, the Government must file before trial an information with


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the court that identifies the conviction supporting the enhancement. 21 U.S.C.

§ 851(a)(1); see also United States v. Cespedes, 151 F.3d 1329, 1331 (11th Cir.

1998); Harris v. United States, 149 F.3d 1304, 1306–07 (11th Cir. 1998). Once

the information is filed:

      the [district] court shall after conviction but before pronouncement of
      sentence inquire of the person with respect to whom the information
      was filed whether he affirms or denies that he has been previously
      convicted as alleged in the information, and shall inform him that any
      challenge to a prior conviction which is not made before sentence is
      imposed may not thereafter be raised to attack the sentence.

21 U.S.C. § 851(b). If the defendant denies any allegation contained in the

information or claims that any conviction alleged is invalid, he must file a written

response to the information. Id. § 851(c)(1). The district court then must “hold a

hearing to determine any issues raised by the response which would except the

person from increased punishment.” Id. The Government must prove factual

issues relating to a prior conviction beyond a reasonable doubt. Id.

      We review for clear error a district court’s factual findings related to the

imposition of sentencing enhancements. United States v. Robertson, 493 F.3d

1322, 1329–30 (11th Cir. 2007). Clear error review is deferential, but a factual

finding “must be supported by substantial evidence.” Id. at 1330.

      In Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), the Supreme Court revisited two of its prior cases: (1) Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which requires
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that any fact that increases the penalty for a crime beyond the prescribed statutory

maximum to be submitted to a jury and proved beyond a reasonable doubt; and

(2) Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524

(2002), which held that judicial factfinding that increased the applicable statutory

mandatory minimum sentence was permissible under the Sixth Amendment.

Alleyne, 570 U.S. at ___, 133 S.Ct. at 2157-58. In Alleyne, the Supreme Court

expressly overturned Harris because it was inconsistent with its decision in

Apprendi, and determined that any facts that increased the applicable statutory

mandatory minimum sentence for a crime must be submitted to a jury and found

beyond a reasonable doubt. Id. at ___, 133 S. Ct. at 2155.


       The Alleyne Court stated that its decision did not reach the issue of whether

prior convictions must be proved to a jury, and thus left undisturbed its decision in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d

350 (1998). See id. at ___, 133 S. Ct. at 2160 n.1. The Court held in Almendarez-

Torres that a prior conviction is not considered an element of a crime, and it does

not have to be proven to a jury beyond a reasonable doubt. Almendarez-Torres,

523 U.S. at 246–47, 118 S.Ct. at 1232–33.

      Although the Government’s fingerprint expert was equipped at the hearing

to replicate his earlier comparison of Walker’s fingerprints with the fingerprints

from the prior conviction identified in the Government’s § 851 information, he

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provided sufficient evidence for the District Court to conclude, beyond a

reasonable doubt, that Walker was the same person identified in the 1988 Missouri

felony marijuana possession conviction. See Robertson, 493 F.3d at 1330. We

thus find no clear error in the District Court’s application of the 20-year statutory

mandatory minimum sentence provision.

                                          B.

      A defendant’s base offense level is determined by his relevant conduct,

including, “in the case of a jointly undertaken criminal activity (a criminal plan,

scheme, endeavor, or enterprise undertaken . . . in concert with others, whether or

not charged as a conspiracy), all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). The scope of the relevant conduct is not necessarily the same as

the scope of the entire conspiracy or the same for every participant. Id. § 1B1.3

cmt. n.2.

      “To determine the quantity of drugs attributable to a defendant for

sentencing purposes, the district court must first make individualized findings

concerning the scope of criminal activity undertaken by the defendant.” United

States v. Bush, 28 F.3d 1084, 1087 (11th Cir. 1994). This requires a determination

as to “the scope of the specific conduct and objectives embraced by the defendant’s

agreement” to participate in the scheme. U.S.S.G. § 1B1.3 cmt. n.2. “The court is


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then to determine the quantity of drugs reasonably foreseeable in connection with

that level of participation.” Bush, 28 F.3d at 1087. A defendant is

      certainly only accountable for co-conspirator conduct that was
      reasonably foreseeable and within the scope of the criminal activity
      that the defendant[s] agreed to undertake. Consequently, although a
      conspirator may reasonably foresee other criminal acts, he is not
      accountable for those acts if they were not part of the scope of the
      criminal activity he agreed to undertake.

United States v. Westry, 524 F.3d 1198, 1219 (11th Cir. 2008) (alterations omitted)

(citations omitted) (internal quotation marks omitted). At the sentencing hearing,

the Government must prove by a preponderance of the evidence any fact to be

considered by the court. United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir.

2005).

      Walker’s involvement in the conspiracy was greater in scope than most of

his codefendants; hence, the court did not deny him due process in acceding to the

Government’s request that it hold him accountable for more methamphetamine

than it attributed to his codefendants. Westry, 524 F.3d at 1219; Bush, 28 F.3d at

1087; U.S.S.G. § 1B1.3 cmt. n.2. Nor did the court deny him due process when it

subjected him, but not the others, to an aggravated role enhancement. Westry, 524

F.3d at 1219; Bush, 28 F.3d at 1087.

                                         C.

      We review a district court’s calculation of drug quantity for clear error.

United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). We will only
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find clear error and disturb the district court’s quantity approximation if we are left

with a “definite and firm conviction that a mistake has been committed.” United

States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (internal quotation mark

omitted).

      In a case where no drugs are actually seized, the court should make a

reasonable estimate based on the available facts. Id. Sentencing errors are

harmless if they do not have a substantial effect on the defendant’s sentence.

United States v. Foley, 508 F.3d 627, 634 (11th Cir. 2007). Where, as here, the

defendant challenges the drug quantity upon which the Guidelines range is based,

the Government bears the burden of establishing the disputed quantity by a

preponderance of the evidence. See Almedina, 686 F.3d at 1315. Cases like this

one in which no drugs are actually seized present challenges in resolving the

disputed quantity. In these cases, the court must approximate the drug quantity.

Id. at 1315–16. Although the court’s approximation may not be “merely

speculative,” it may properly be a “fair, accurate, and conservative estimate[]” of

the quantity based on evidence presented at trial or at the sentencing hearing, or

included as undisputed facts in the presentence investigation report. See United

States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998). We will only find clear

error and disturb the court’s quantity approximation if it is left with a “definite and

firm conviction that a mistake has been committed.” Almedina, 686 F.3d at 1315


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(quotation mark omitted). A member of a drug conspiracy is liable for his own

acts and the acts of others in furtherance of the activity that he agreed to undertake

and that are reasonably foreseeable in connection with that activity. United States

v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).

      Walker is accountable for the meth he manufactured and the meth

manufactured by the codefendants he taught to produce the drug, as well as the

reasonably foreseeable quantity produced by those he collaborated with during the

course of the conspiracy. Ismond, 993 F.2d at 1499. Combining the total quantity

of meth he and his codefendants produced, he was accountable for at least 592

grams. In sum, the District Court did not err in holding him accountable for more

than 500 grams of methamphetamine.

                                        D.

We review de novo a district court’s interpretation and application of the

Guidelines, and review the factual findings underpinning such application for clear

error. United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005). “When the

government seeks to apply an enhancement under the Sentencing Guidelines over a

defendant’s factual objection, it has the burden of introducing ‘sufficient and

reliable’ evidence to prove the necessary facts by a preponderance of the

evidence.” United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013).

“[A]bsent a stipulation or agreement between the parties, an attorney’s factual


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assertions at a sentencing hearing do not constitute evidence that a district court

can rely on.” Id. Further, the court can rely upon its recollection of the evidence

of the trial to make its findings. United States v. Hamaker, 455 F.3d 1316, 1338

(11th Cir. 2006).

      The Sentencing Guidelines provide that a two-level enhancement applies

“[i]f the defendant used violence, made a credible threat to use violence, or

directed the use of violence.” U.S.S.G. § 2D1.1(b)(2). The testimony

demonstrated that Walker threatened to kill at least one co-conspirator and her

daughter for conduct related to the conspiracy, and that he also punched her in the

neck for other offense-related conduct. He also threatened to hurt another co-

conspirator if she failed to properly dispose of evidence of his manufacturing

activities. The court thus had before it sufficient evidence of both the use of

violence and the threatened use of violence by walker to support its application of

the two-level enhancement. Washington, 714 F.3d at 1361; Hamaker, 455 F.3d at

1338; U.S.S.G. § 2D1.1(b)(2).

                                          E.

      A defendant is subject to a six-level increase of his offense level if his crime

involved manufacturing methamphetamine and “created a substantial risk of harm

to the life of a minor.” U.S.S.G. § 2D1.1(b)(13)(D). The commentary to § 2D1.1




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provides certain factors that a court must consider to determine whether the offense

created a substantial risk of harm to human life or the environment:

      (i) The quantity of any chemicals or hazardous or toxic substances
      found at the laboratory, and the manner in which the chemicals or
      substances were stored.

      (ii) The manner in which hazardous or toxic substances were
      disposed, and the likelihood of release into the environment of
      hazardous or toxic substances.

      (iii) The duration of the offense, or the extent of the manufacturing
      operation.

      (iv) The location of the laboratory (e.g., whether the laboratory is
      located in a residential neighborhood or a remote area), and the
      number of human lives placed at substantial risk of harm.

Id. § 2D1.1 cmt. n.18(B). The testimony demonstrated that Walker manufactured

meth in and near his home for years, had pseudoephedrine pills in the kitchen,

along with a pill grinder, stored some meth in a desk drawer in the house, left the

cooked meth on the stove to dry out and solidify, and caused fires and explosions

that threatened destruction of the house. Taken together, his manufacturing and

storage of meth in and around his residence created a substantial risk of danger to

his minor daughter. U.S.S.G. § 2D1.1(b)(13)(D); id. § 2D1.1 cmt. n.18(B). The

court did not err in applying the six-level enhancement.

                                         F.

      Under the Sentencing Guidelines, a two-level role enhancement applies if

the defendant “was an organizer, leader, manager, or supervisor” of criminal
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activity. U.S.S.G. § 3B1.1(c). Factors that the court should consider at sentencing

when applying this enhancement include: (1) the exercise of decisionmaking

authority; (2) the nature of participation in the commission of the offense; (3) the

recruitment of accomplices; (4) the claimed right to a larger share of the fruits of

the crime; (5) the degree of participation in planning or organizing the offense; (6)

the nature and scope of the illegal activity; and (7) the degree of control and

authority exercised over others. Id. § 3B1.1 cmt. n.4. Although being a drug

supplier does not automatically make a defendant a supervisor, “the assertion of

control or influence over only one individual is enough to support a § 3B1.1(c)

enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000)

(upholding the enhancement where a coconspirator had to consult with the

defendant before agreeing to sell drugs).

      Section 3C1.1 of the Sentencing Guidelines provides:

      If (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. Obstruction of justice occurs—and a two-level enhancement

applies—when, among other things, a defendant threatens, intimidates, or

otherwise unlawfully influences a witness directly or indirectly, or attempts to do

so. Id. § 3C1.1 cmt. n.4(a).
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      Walker recruited numerous pseudoephedrine suppliers, taught several

codefendants to manufacture meth, established the meth splitting arrangement that

existed throughout the conspiracy between the suppliers and the manufacturers,

and exerted some control over the suppliers that other manufacturers could use.

This evidence supports the court’s application of the aggravated role enhancement.

Jiminez, 224 F.3d at 1251. The testimony of Walker’s threats against a

coconspirator while in jail support the related enhancement for obstruction of

justice by means of witness intimidation. U.S.S.G. § 3C1.1; id. § 3C1.1 cmt.

n.4(a).

                                          G.

      We have observed that “there is a range of reasonable sentences from which

the district court may choose, and when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The

court need not state on the record that it has explicitly considered each factor and

need not discuss each factor. Id. at 786. Rather, “an acknowledgment by the

district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under [United States v. Booker, 543 U.S. 220, 125 S.

Ct. 738, 160 L. Ed. 2d 621 (2005)].” Id. We have upheld as substantively

reasonable sentences that were appreciably below the statutory maximum. United


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States v. Valnor, 451 F.3d 744, 751–52 (11th Cir. 2006). The maximum

punishment for possessing more than 500 grams of a substance containing

methamphetamine is life imprisonment, and the minimum, after application of the

§ 851 enhancement, is 20 years’ imprisonment. 21 U.S.C. §§ 841(b)(1)(A)(viii),

846, 851(b)(1)(A).

      In considering the § 3553(a) factors, the district court should avoid

unwarranted sentence disparities among defendants with “similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). For a substantive

unreasonableness claim based on a sentencing disparity, we require that the

defendant raising the claim be similarly situated to those who received lesser

sentences. United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). To

be similarly situated, codefendants must have similar backgrounds and criminal

histories. United States v. Jayyousi, 657 F.3d 1085, 1117–18 (11th Cir. 2011).

Bare numbers comparing the defendant’s sentence to the sentences of other

defendants convicted of similar crimes without context is insufficient to establish

that the defendant’s sentence is substantively unreasonable. United States v.

Campbell, 491 F.3d 1306, 1317 (11th Cir. 2007) (“The statistics [the defendant]

cites are bare numbers without context and, therefore, do not persuade us that his

sentences are unreasonable.”).




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      In his brief on appeal, Walker failed to provide the criminal history

categories, Guideline ranges, and applicable mandatory minimum sentences for his

codefendants, thus preventing us from accurately determining whether he and his

codefendants were similarly situated. Jayyousi, 657 F.3d at 1117–18; Campbell,

491 F.3d at 1317. Walker’s considerable involvement in the conspiracy

distinguishes him from his codefendants, however, all of whom pled guilty and six

of whom testified at his trial. Accordingly, he failed to demonstrate that his

sentence is substantively unreasonable on the ground that it is disparate from the

sentences imposed on his codefendants. Docampo, 573 F.3d at 1101. The court

considered Walker’s objections and arguments at sentencing, as well as the

sentencing factors of 18 U.S.C. § 3553(a) and the mandatory minimum. His

sentence is below both the Guidelines range and the statutory maximum of life in

prison, and thus is indicative of its reasonableness. Valnor, 451 F.3d at 751–52.

                                         III.

      We find no legal basis for disturbing Walker’s conviction or sentence. They

are accordingly

      AFFIRMED.




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