            Case: 12-16085   Date Filed: 08/05/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16085
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:12-cr-80054-WJZ-1



UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                 versus

JOSNY CHARLESTAIN,

                                                       Defendant-Appellant.

                       ________________________

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

                             (August 5, 2013)

Before TJOFLAT, DUBINA, and PRYOR, Circuit Judges.

PER CURIAM:
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      Appellant Josny Charlestain appeals his 108-month above guideline-range

total sentence imposed by the district court for possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and

possession of a firearm and ammunition by a person subject to a domestic violence

order, in violation of 18 U.S.C. § 922(g)(8). He argues that the district court erred

by admitting evidence about an unrelated 2009 murder for which he was charged

but not prosecuted, applying an aggravating role sentencing enhancement, and

imposing an unreasonable sentence which was far above the Guideline range. We

address each point in turn.

                                          I.

      We review a “district court’s application of the sentencing guidelines de

novo and its findings of fact for clear error.” United States v. Grant, 397 F.3d

1330, 1332 (11th Cir. 2005). Where a defendant raises a sentencing issue for the

first time on appeal, plain error review applies. See United States v. Aguillard,

217 F.3d 1319, 1320 (11th Cir. 2000). “For this Court to correct plain error:

(1) there must be error; (2) the error must be plain; and (3) the error must affect

substantial rights.” Id. at 1320 (internal quotation marks omitted).

      Federal law provides that “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the


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purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661 (emphasis

added). That includes hearsay, so long as it is sufficiently reliable, and evidence

that may not be admissible at trial, as long as the defendant has a chance to rebut

the evidence. United States v. Baker, 432 F.3d 1189, 1253-54 & n.68 (11th Cir.

2005). The Supreme Court has noted that, at sentencing, the district court has

broad discretion to consider “the fullest information possible concerning the

defendant’s life and characteristics.” Pepper v. United States, 562 U.S. __, __, 131

S. Ct. 1229, 1235-36 (2011) (internal quotation marks omitted). We have held that

a court may even consider relevant acquitted conduct so long as that conduct is

proven by a preponderance of the evidence. See United States v. Faust, 456 F.3d

1342, 1348 (11th Cir. 2006).

      The Guidelines similarly provide that in deciding whether to sentence a

defendant within or outside of the Guideline range, the court can consider any

information about the defendant’s background, character, and conduct, unless it is

otherwise illegal to do so. U.S.S.G. § 1B1.4. Moreover, under Federal Rule of

Criminal Procedure 32, the court may allow the parties to introduce evidence

regarding objections to the presentence investigation report (“PSI”) during

sentencing. Fed.R.Crim.P. 32(i)(2).

      We conclude from the record that the district court did not err, plainly or

otherwise, in admitting evidence about the 2009 homicide because it was relevant


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to the district court’s consideration of the 18 U.S.C. § 3553(a) factors, such as

Charlestain’s background and characteristics, and the need to provide adequate

deterrence, prevent additional gun-related crimes, and protect the public.


                                          II.

      We review for clear error the district court’s determination that a defendant

is subject to an aggravating-role enhancement under U.S.S.G. § 3B1.1(c). United

States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000). We review the district

court’s application and legal interpretations of the Guidelines de novo. United

States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010).

      Section 3B1.1(c) subjects a defendant to a two-level enhancement “[i]f the

defendant was an organizer, leader, manager, or supervisor in any criminal

activity” [other than one that involves five or more participants or is otherwise

extensive]. U.S.S.G. § 3B1.1(c). A defendant’s assertion of control over only one

other participant is sufficient to sustain a § 3B1.1(c) role enhancement.

Id. § 3B1.1, comment. (n.2); United States v. Mandhai, 375 F.3d 1243, 1248

(11th Cir. 2004). A “participant” is a person who is criminally responsible for the

offense, even if not convicted. U.S.S.G. § 3B1.1, comment. (n.1). In Mandhai, we

determined that the district court properly applied a § 3B1.1(c) enhancement where

the defendant recruited one other individual into a terrorist plot, prompted that



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individual to purchase weapons, and briefed him on the bombing plan. Mandhai,

375 F.3d at 1248.

      We conclude from the record that the district court did not clearly err by

applying the aggravating role enhancement because it was entitled to conclude that

Charlestain directed his wife to buy the guns involved in the instant offenses.

                                         III.

      We review the sentence imposed by the district court for reasonableness and

evaluate the substantive reasonableness of a sentence for an abuse of discretion.

Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007); United States v.

Talley, 431 F.3d 784, 785 (11th Cir. 2005). Application of a variance is likewise

reviewed for abuse of discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597-98. After

Irizarry v. United States, 553 U.S. 708, 714-16, 128 S. Ct. 2198, 2202-04 (2008), a

district court’s grant of a variance does not require prior notice of the grounds

contemplated for a sentence above the range. We will only vacate a sentence when

“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.” United States v. Irey, 612 F.3d

1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted). We

review only a defendant’s final sentence, and not each individual decision made




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during the sentencing process, for reasonableness. See United States v. Dorman,

488 F.3d 936, 938 (11th Cir. 2007).

      When reviewing a sentence, we must first determine that the “district court

committed no significant procedural error,” United States v. McGarity, 669 F.3d

1218, 1263 (11th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct.

378 (2012), and a sentence may be considered procedurally reasonable where the

district court considered the parties’ arguments and provided a reasoned basis for

its choice of sentence, see Rita v. United States, 551 U.S. 338, 356-58, 127 S. Ct.

2456, 2468-69 (2007). If the district court’s decision is procedurally reasonable,

our analysis then turns to the substantive reasonableness of the sentence. Gall, 552

U.S. at 51, 128 S. Ct. at 597. We review the totality of the facts and circumstances

to gauge for substantive error. Irey, 612 F.3d at 1189-90. “[T]he party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in section 3553(a).”

Talley, 431 F.3d at 788. The § 3553(a) factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need 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 deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to


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      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. at 786 (summarizing 18 U.S.C. § 3553(a)). In United States v. Scott, 426 F.3d

1324 (11th Cir. 2005), we noted that, “nothing in [United States v.] Booker[, 543

U.S. 220, 125 S. Ct. 738 (2005),] or elsewhere requires the district court to state on

the record that it has explicitly considered each of the § 3553(a) factors or to

discuss each of the § 3553(a) factors.” Id. at 1329. An acknowledgment that the

court considered the defendant’s arguments and the § 3553(a) factors is adequate

under Booker. Talley, 431 F.3d at 786.

      “A district court abuses its discretion when it . . . gives significant weight to

an improper or irrelevant factor . . . .” Irey, 612 F.3d at 1189 (internal quotation

marks omitted). A sentence imposed well below the statutory maximum is an

indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008). When uncertainty exists as to whether the district court

applied an upward variance or an upward departure, the court considers:

(1) whether the court referenced a particular Guideline departure provision; and

(2) whether the court based its decision on a belief that the Guidelines were not

adequate. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).

      We conclude from the record that Charlestain’s total sentence was

procedurally and substantively reasonable. First, the record demonstrates that the

district court imposed an upward variance rather than a departure, and as to
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procedural reasonableness, it correctly calculated the advisory Guideline range.

Charlestain has not met his burden of showing that his sentence was substantively

unreasonable. The court held two sentencing hearings, heard testimony from

numerous witnesses, considered the parties’ arguments, and discussed the

§ 3553(a) factors before deciding that a sentence above the Guideline range was

warranted to reflect the full extent of Charlestain’s criminal history, violent

characteristics, danger to the public, and the need for deterrence. In noting that it

had considered the parties’ positions, the Guidelines, and the statutory factors, the

court satisfied Talley. Charlestain’s sentence was also well below the statutory

maximum.

      For the above-stated resons, we affirm Charlestain’s total sentence.

      AFFIRMED.




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