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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13143
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 4:16-cr-00354-WTM-GRS-2



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

MARLON LASHAWN KING,
a.k.a. Melo,

                                                     Defendant - Appellant.

                      ________________________

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

                              (May 1, 2018)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Marlon King appeals his 151-month sentence, imposed at the bottom of his

advisory guidelines range, which the district court imposed after he pled guilty to a

single count of distribution of heroin. For the reasons set forth below, we affirm.

                                          I.

      King was indicted for, among other counts, conspiracy to distribute and to

possess with intent to distribute tetrahydrocannabinol (“THC”) and cocaine,

distribution of cocaine, distribution of heroin, and possession of marijuana. He

pled guilty to the distribution of heroin count, in exchange for the government’s

agreement to dismiss the remaining charges.

      In anticipation of sentencing, the probation office prepared a presentence

investigation report (“PSI”). Using the drug equivalency tables in U.S.S.G.

§ 2D1.1, the PSI determined that King was accountable for the equivalent of

319.932 kilograms of marijuana based on the charged offenses, which yielded a

base offense level of 24. The PSI then classified King as a career offender under

U.S.S.G. § 4B1.1(b) because he previously had been convicted of two controlled

substance offenses. As a result of this enhancement, King’s base offense level was

32. With a three-level decrease for acceptance of responsibility, King’s total

offense level was 29. Also due to the career offender enhancement, the PSI set

King’s criminal history at a category VI. This resulted in a guidelines range of 151

to 188 months’ imprisonment with a statutory maximum sentence of 20 years.


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      King submitted a memorandum prior to sentencing in which he sought a

downward variance based on his personal history and future goals. At sentencing,

King expressed remorse, and his wife and mother testified that he was a good

father who deserved to be home with his children. King did not object to the PSI,

the facts and calculations of which the district court adopted. The government

argued for a within-guidelines sentence, citing King’s lengthy criminal history.

The district court explained that it had reviewed the PSI, arguments from the

defense (including the memorandum) and the government, King’s allocution, the

testimony of King’s wife and mother, and the factors set forth in 18 U.S.C.

§ 3553(a). It imposed a sentenced at the bottom of the applicable guidelines range,

151 months’ imprisonment.

      The court explained why it denied King’s request for a downward variance.

The court found that King “represents an ongoing threat to this community” and

that the sentence reflected the need for deterrence and to “protect the public from

further crimes by this defendant.” Doc. 94 at 14-15. 1 The court further stated that

it imposed a sentence at the bottom of the guidelines range because King had no

prior convictions for offenses involving a weapon.

      This is King’s appeal.




      1
          “Doc. #” refers to the numbered entry on the district court’s docket.

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                                         II.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard, considering the totality of the circumstances and the

sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S.

38, 41 (2007). Under § 3553(a), the district court is required to impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes” of

§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect

for the law; provide just punishment; deter criminal conduct; protect the public

from the defendant’s future criminal conduct; and effectively provide the

defendant with educational or vocational training, medical care, or other

correctional treatment. 18 U.S.C. § 3553(a)(2). 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 guidelines 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).

      Although we do not automatically presume a within-guidelines sentence to

be reasonable, ordinarily we expect it to be. United States v. Asante, 782 F.3d 639,

648 (11th Cir. 2015). That a sentence falls at the low end of the guidelines range




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and well below the statutory maximum are two indications of reasonableness. See

United States v. Cubero, 754 F.3d 888, 898 (11th Cir. 2014).

      The party challenging a sentence bears the burden of proving the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A

district court imposes a substantively unreasonable sentence when it fails to afford

consideration to relevant factors that were due significant weight, gives significant

weight to an improper or irrelevant factor, or commits a clear error of judgment in

considering the proper factors. United States v. Irey, 612 F.3d 1160, 1189-90 (11th

Cir. 2010) (en banc); see United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.

2006) (explaining that a sentencing court’s “single-minded[]” focus on one factor

to the detriment of other relevant sentencing factors “is a symptom of an

unreasonable sentence” (internal quotation marks omitted)).

      Although generally the weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court, United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008), a district court commits a clear

error of judgment when it “considers the proper factors but balances them

unreasonably” and imposes a sentence that “does not achieve the purposes of

sentencing as stated in § 3553(a),” Irey, 612 F.3d at 1189-90 (internal quotation

marks omitted). We will vacate a sentence if we are “left with the definite and

firm conviction that the district court committed a clear error of judgment in


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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.” Id. at 1190.

                                         III.

      King argues that his sentence was substantively unreasonable for two

reasons. First, he contends that the district court placed too much weight on his

criminal history and no weight on his “actual role in the scheme,” distribution of

only 3.68 grams of heroin. Appellant’s Br. at 9. Second, he asserts that his

sentence was disproportionate to that of his codefendant, who, he says, was

convicted of more serious conduct but got a lesser sentence. We take these

arguments in turn.

      First, we reject King’s argument that the district court improperly placed too

much weight on his lengthy criminal history and not enough weight on the fact that

the offense for which he was convicted involved a small amount of heroin. King’s

guidelines range was determined not by the probation office’s calculation under the

drug equivalency tables—which took into account offense conduct for which King

was not convicted—but rather by the career offender enhancement, which King

has never contested. The district court’s consideration of the quantity of drugs for

which King could be held accountable, including the amount of drugs in the counts

that were dismissed—a calculation to which King did not object—also was not

improper. See 18 U.S.C. § 3553(a)(1) (permitting the district court to consider in


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sentencing “the nature and circumstances of the offense”); United States v. Alston,

895 F.2d 1362, 1371 (11th Cir. 1990) (holding that sentencing courts may consider

quantities of drugs charged in counts ultimately dismissed pursuant to a plea

agreement when arriving at an appropriate sentence). Moreover, the district court

was within its discretion to weigh heavily King’s criminal history, and, given the

court’s statements that it considered numerous factors, including King’s allocution

and his family members’ testimony, King cannot demonstrate that the court

focused “single-mindedly” on his criminal history to the detriment of other

relevant sentencing factors. Crisp, 454 F.3d at 1292.

      Second, we cannot agree with King that the district court erred in sentencing

him to 151 months’ imprisonment even though his co-defendant received a lesser

sentence. “Disparity between the sentences imposed on co-defendants is generally

not an appropriate basis for relief on appeal.” United States v. Regueiro, 240 F.3d

1321, 1325-26 (11th Cir. 2001). This general rule reflects Congress’s choice to

enact the Sentencing Guidelines “to eliminate disparities in the sentences meted

out to similarly situated defendants” rather than co-defendants in a single case who

may be “culpable in different degrees.” United States v. Chotas, 968 F.2d 1193,

1197 (11th Cir. 1992). “The guidelines, structured to account for relative

culpability and differences in prior records of defendants, demonstrate that the

Sentencing Commission fully anticipated sentencing disparity between defendants


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involved in the same offense.” Id.; see also 18 U.S.C. § 3553(a)(6) (instructing

sentencing courts to consider “the need to avoid unwarranted sentencing disparities

among defendants with similar records who have been found guilty of similar

conduct”). King’s argument may have had merit if he had demonstrated that his

co-defendant was similarly situated to him in a manner other than simply being

involved in the same offense; however, he has not done so. There is no indication

in the record that King’s co-defendant was categorized as a career offender—the

categorization that drove King’s guidelines range. Indeed, the record demonstrates

that whereas King’s co-defendant cooperated with law enforcement, King failed to

follow through on his agreement to cooperate with investigators. Thus, King has

not shown that the district court erred in imposing a higher sentence in his case

than in his co-defendant’s case.

                                          IV.

      King has not met his burden to show that the district court abused its

discretion in imposing his 151-month, bottom-of-the-guidelines sentence. We

therefore affirm.

      AFFIRMED.




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