                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16431         ELEVENTH CIRCUIT
                                                       MARCH 2, 2011
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 08-00315-CR-26-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KARRIEM YUSEF BUTLER,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________
                               (March 2, 2011)

                      ON PETITION FOR REHEARING

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     The prior panel opinion, reported at – Fed. App’x – , is withdrawn and the
following opinion is substituted in its place. Karriem Yusef Butler appeals the

consecutive sentences imposed following his conviction on two counts of using a

communication facility to aid a conspiracy to possess with intent to distribute, and

to distribute, controlled substances, in violation of 21 U.S.C. § 843(b).

       I. Background

       Butler and numerous others were charged in connection with a large-scale

drug-distribution scheme. Butler was charged with conspiracy to possess with

intent to distribute drugs, in violation of 21 U.S.C. § 846 (Count 1), and three

counts of using a telephone to facilitate that conspiracy, in violation of § 843

(Counts 51 through 53). At the time of his arrest on the federal charges, Butler was

in state custody for drug offenses related to the federal charges.1

       Butler pleaded guilty to two counts of using the telephone to facilitate the

conspiracy (Counts 51 and 52). Under the terms of his plea agreement, Butler

admitted that he used a telephone to facilitate the drug conspiracy. The plea

agreement explained that the statutory maximum sentence under § 843 was four

years’ imprisonment.

       At the change-of-plea hearing, Butler admitted that he had received two

phone calls from co-conspirator Telly Petty asking him to get some cocaine and


       1
         Butler was convicted in state court of possession of lidocaine, a violation of the
Georgia Controlled Substance Act.

                                                 2
materials to cut the drugs. Butler had agreed to supply the cocaine and deliver it to

Petty.

         In determining the advisory sentencing range, the probation officer applied a

base offense level of 28 under U.S.S.G. § 2D1.1(c)(6),2 with a 3-level reduction for

acceptance of responsibility, for a total adjusted offense level of 25. As a career

offender, Butler’s criminal history category was VI, which yielded a guideline

range of 110 to 137 months’ imprisonment. But the consecutive statutory

maximum sentences decreased this range to 96 months.

         Butler objected to the amount of drugs attributed to him, argued that the

offense level should have been 12 under § 4B1.1(b), and opposed consecutive

sentences. He also argued that he was a minor or minimal participant. The district

court rejected his arguments, adopted the presentence investigation report, and

sentenced Butler to 48 months’ imprisonment on Count 51 and a consecutive 44-

month term of imprisonment on Count 52. The court varied downward slightly

from the statutory maximum to avoid a sentencing disparity with one of Butler’s

codefendants. Butler now appeals.

         Butler raises several arguments regarding the reasonableness of his




         2
          The base offense level did not include any of the lidocaine for which Butler had been
arrested on state charges.

                                                3
sentences. First, he argues that the district court committed constitutional Booker3

error when it enhanced his sentence based on facts not found be thy jury nor

admitted by him. Second, he argues that the district court procedurally erred by

(a) calculating his base offense level as 28 after the court made factual findings

about the specific drug quantity, (b) imposing consecutive sentences, and

(c) denying a reduction for being a minor or minimal participant under U.S.S.G.

§ 3B1.2. Third Butler argues that his sentence was substantively unreasonable.

We address each in turn.

      II. Discussion

      We review the reasonableness of a district court’s sentence under a

deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S.

38, 41 (2007).

      A. Constitutional error

      Under Booker, there are two types of error that a district court might commit

in sentencing a defendant: constitutional and statutory. United States v. Lee, 427

F.3d 881, 891 (11th Cir. 2005). A constitutional Booker error under the Sixth

Amendment “occurs when extra-verdict enhancements are used to reach a result

under [the Guidelines] that is binding on the sentencing judge.” Id. A statutory



      3
          United States v. Booker, 543 U.S. 200 (2005).

                                               4
Booker error “consists in sentencing a defendant under the Guidelines as if they

were mandatory and not advisory, even in the absence of a Sixth Amendment

violation.” Id.

      When the defendant successfully preserves the issue, we review the Booker

claim under a harmless error standard. United States v. Mathenia, 409 F.3d 1289,

1291-92 (11th Cir. 2005). A constitutional Booker error is harmless if the

government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant’s ultimate sentence. Id. A statutory error is harmless “if, viewing

the proceedings in their entirety, a court determines that the error did not affect the

[sentence], or had but very slight effect.” Id. (quotation marks omitted).

      The district court in this case did not commit either a constitutional or

statutory Booker error. Although the court considered, as relevant conduct, the

amount of drugs involved in the underlying conspiracy, Butler’s sentence was

driven by the statutory maximum sentence and not the guideline range. Moreover,

the court expressly stated that the guideline were advisory. Thus, we conclude that

there is no merit to Butler’s claim of Booker error.

      B. Procedural reasonableness

      Butler’s sentence is otherwise procedurally unreasonable if the district court

failed to calculate (or improperly calculated) the guidelines range, treated the



                                           5
guidelines as mandatory, failed to consider the § 3553(a) factors, selected a

sentence based on clearly erroneous facts, or failed to adequately explain the

chosen sentence—including an explanation for any deviation from the guidelines

range. See id. at 51. We review a district court’s factual findings related to the

imposition of a sentence for clear error. See United States v. Villarreal, 613 F.3d

1344, 1357-58 (11th Cir. 2010) (quotation marks omitted). “A district court’s

factual finding is clearly erroneous when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Id. at 1358.

             1. Drug quantity

      The district court may consider all relevant conduct in calculating a

defendant’s offense level. United States v. Hamaker, 455 F.3d 1316, 1336 (11th

Cir. 2006). Relevant conduct includes conduct for which the defendant was

acquitted, United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005), conduct

that is the basis for counts dismissed pursuant to a plea agreement, United States v.

Alston, 895 F.2d 1362,1371-72 (11th Cir. 1990), and uncharged criminal conduct

that occurred outside the statute-of-limitations period, United States v. Scroggins,

880 F.2d 1204, 1214 (11th Cir. 1989). The court may determine the sentence

based on judicial fact-finding of relevant conduct provided that the court’s findings



                                           6
are by a preponderance of the evidence and the court recognizes that the guidelines

are advisory. United States v. Dean, 487 F.3d 840, 854 (11th Cir. 2007).

Furthermore, “the district court may base sentencing determinations on reliable

hearsay.” United States v. Baker, 432 F.3d 1189, 1254 n.68 (11th Cir. 2005).

Credibility determinations are the province of the district court. Villarreal, 613

F.3d at 1358.

      Here, the district court properly determined the drug quantity attributable to

Butler based on a preponderance of the evidence. Petty testified at sentencing that

Butler had assisted him with repackaging two kilograms of cocaine. Moreover,

although Butler pleaded guilty to only two counts of using the telephone to

facilitate a drug conspiracy, there was evidence to connect him with the

distribution of at least two kilograms of cocaine.

             2. Consecutive sentences

      Butler argues that the district court erroneously treated the guidelines as

mandatory when it imposed consecutive sentences under § 5G1.2(d). We disagree.

Section 5G1.2(d) provides,

      If the sentence imposed on the count carrying the highest statutory
      maximum is less than the total punishment, then the sentence imposed
      on one or more of the other counts shall run consecutively, but only to
      the extent necessary to produce a combined sentence equal to the total
      punishment. In all other respects, sentences on all counts shall run
      concurrently, except to the extent otherwise required by law.

                                           7
U.S.S.G. § 5G1.2(d). The court properly determined the base offense level to be

28, which yielded an advisory guideline range of 110 to 137 months’

imprisonment. Because the statutory maximum under § 843 was 48 months’

imprisonment for each count, the guideline range became the statutory maximum

sentence. But the statutory maximum was significantly less than the calculated

advisory guidelines range. Therefore, the imposition of consecutive sentences was

consistent with the dictates of § 5G1.2(d) to produce a sentence equal to the total

punishment as determined by the guideline calculations. The district court did not

impose consecutive sentences because it believed them to be mandatory; rather, the

court did so because consecutive sentences were consistent with the terms of

§ 5G1.2.

             3. Role reduction

      A defendant may receive a two-level reduction in his offense level if he was

a minimal or minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A

defendant is a minimal participant if his is plainly among the least culpable of

those involved in the conduct of the group. U.S.S.G. § 3B1.2 comment. (n.4). A

defendant is a minor participant if he is less culpable than most other participants,

but his role could not be described as minimal. U.S.S.G. § 3B1.2 comment. (n.5).

The defendant has the burden of establishing his role in the offense by a



                                           8
preponderance of the evidence. United States v. De Varon, 175 F.3d 930, 939

(11th Cir. 1999) (en banc).

      The determination whether to apply a role reduction “is heavily dependent

upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (n.3(c)). “Two

principles guide the district court’s consideration: (1) the court must compare the

defendant’s role in the offense with the relevant conduct attributed to him in

calculating his base offense level; and (2) the court may compare the defendant’s

conduct to that of other participants involved in the offense.” United States v.

Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant conduct

attributed to a defendant is the same as his actual conduct, “he cannot prove that he

is entitled to a minor-role adjustment simply by pointing to some broader scheme

for which he was not held accountable.” Id. Furthermore, “[t]he fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of [his] role in the offense, since it is possible that

none are minor or minimal participants.” De Varon, 175 F.3d at 944.

      In this case, Butler’s relevant conduct matched his actual conduct; he was

held responsible for two kilograms of cocaine and not for any larger role in the

conspiracy. Butler has not shown that he was entitled to a role reduction.

      B. Substantive reasonableness



                                           9
      To be substantively reasonable, the sentence must be “sufficient, but not

greater than necessary to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2). These purposes include the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, protect the public from the defendant’s future criminal conduct,

and provide the defendant with needed educational or vocational training or

medical care. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the

court must also consider the nature and circumstances of the offense, the history

and characteristics of the defendant, the kinds of sentences available, the applicable

guideline range, the pertinent policy statements of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. Id. § 3553(a)(1), (3)-(7).

      We will not vacate a sentence as unreasonable unless 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.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). The

party challenging the sentence has the burden of establishing unreasonableness in

light of the record and the § 3553(a) factors. United States v. Thomas, 446 F.3d



                                           10
1348, 1351 (11th Cir. 2006).

      In this case, the district court stated that it had considered the advisory

guideline range, the parties’s arguments, and the sentencing factors in § 3553(a).

The court specifically noted that Butler’s conduct was similar to that of one of his

codefendants and that he should be sentenced accordingly. On these facts, we

cannot say that the district court imposed an unreasonable sentence.

      For the foregoing reasons, we conclude Butler’s sentences were procedurally

and substantively reasonable.

      AFFIRMED.




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