                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT           FILED
                   ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                             FEBRUARY 6, 2012
                          No. 11-12407
                      Non-Argument Calendar                     JOHN LEY
                                                                 CLERK
                    ________________________

               D.C. Docket No. 1:10-cr-20613-KMM-7



UNITED STATES OF AMERICA,


                             llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,


                                versus


BALBINO ARMANDO RAMOS,


                          llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                   ________________________

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

                         (February 6, 2012)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Balbino Armando Ramos was indicted on charges that he participated in a

drug distribution conspiracy involving the importation of three shipments of

cocaine and heroin. On the third day of trial, Ramos withdrew his not guilty plea

and pled guilty to one count of conspiracy to possess with intent to distribute 5

kilograms or more of cocaine, in violation of 21 U.S.C. § 846. The plea agreement

stipulated that his involvement would be limited to no more than 50 kilograms of

cocaine, which would be less than the entire drug quantity involved in the three

shipments. On appeal, Ramos argues that his 144-month sentence is procedurally

and substantively unreasonable. Specifically, he argues (1) that the sentencing

court failed to properly calculate the sentencing Guidelines range because it

attributed to him more than the 50 kilograms of cocaine contemplated by his plea

agreement, rendering his sentence procedurally unreasonable; and (2) that his

sentence was substantively unreasonable, primarily because the district court

refused to grant a downward variance to credit him for prison time served in error

on a prior vacated federal drug conviction.

                                         I.

      We first consider whether Ramos’s sentence was procedurally unreasonable.

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Ramos argues that the district court imposed an unreasonably severe sentence by

attributing to him almost the total amount of cocaine at issue in the case, even

though the evidence at trial showed that he only purchased 10 kilograms of

cocaine, and only received drugs from two out of three shipments. Although the

Government stipulated in the plea agreement that Ramos’s involvement would be

limited to no more than 50 kilograms of cocaine, the district court adopted the pre-

sentence investigation report’s (PSI) recommendation that Ramos should be held

accountable for a total of 59.92 kilograms of cocaine and 8.68 kilograms of heroin,

resulting in an increase in his base offense level. Ramos argues that based on the

trial evidence, as well as the plea agreement, the district court erred by relying on

the PSI’s disputed drug-quantity calculations.

      We employ an abuse-of-discretion standard to review a sentence for

procedural reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,

597 (2007). The party challenging the sentence carries the burden of establishing

unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per

curiam). Procedural errors at sentencing may include, among other things, the

district court’s improper calculation of the Guidelines range, or selection of a

sentence based on clearly erroneous facts. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      Proper calculation of the Guidelines sentencing range requires consideration

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of all relevant conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.

2006). Relevant conduct should include all acts committed, aided, abetted,

procured, or wilfully caused by a defendant, and all reasonably foreseeable acts of

others in furtherance of a jointly undertaken criminal activity that occurred during

the commission of the offense. U.S. SENTENCING GUIDELINES MANUAL §

1B1.3(a)(1). The commentary clarifies that, in cases involving contraband, a

conspirator’s relevant conduct includes amounts directly attributable to the

conspirator and “all reasonably foreseeable quantities of contraband that were

within the scope of the criminal activity that he jointly undertook.” Id. at cmt. n.

2. “The district court’s determination of the drug quantity attributable to a

defendant is reviewed for clear error.” United States v. Chavez, 584 F.3d 1354,

1367 (11th Cir. 2009).

      We cannot conclude that the district court’s decision to attribute the total

amount of the drugs involved in the conspiracy to Ramos was clearly erroneous or

otherwise impermissible. Ramos indicated during his plea colloquy that he

understood that the terms of the plea agreement were merely advisory, and that the

Court retained the ability to impose a sentence that might be higher or lower than

the sentence recommended by the Guidelines. Moreover, the evidence at trial

demonstrated that it was reasonably foreseeable to hold Ramos accountable for the

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entire drug quantity involved in all three deliveries, and there is nothing in the

record to suggest that Ramos disassociated himself from the conspiracy prior to

the third scheduled delivery in October of 2006. Therefore, Ramos cannot show

that the district court’s decision to hold him accountable for the entire drug

quantity involved in the three deliveries was clearly erroneous, and he cannot

show that his sentence was procedurally unreasonable.

                                          II.

      If the district court made no procedural errors, then the substantive

reasonableness of the sentence is reviewed to determine whether the sentence is

supported by the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at

597. Ramos asserts that the district court’s refusal to grant a downward variance

from the Guideline range to credit him for prison time he served in error on a prior

vacated federal drug conviction resulted in a substantively unreasonable sentence.

      The weight given to any § 3553(a) factor is within the sound discretion of

the district court, and we will not substitute our judgment in weighing the relevant

factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We only

remand a sentence when the district court commits “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,

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515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).

      We are unable to conclude that Ramos’s sentence was substantively

unreasonable. The district court considered the arguments Ramos made, including

the prison time served in error, but decided against granting a downward variance

because of Ramos’s otherwise extensive criminal history. Moreover, Ramos’s

sentence of 144 months falls squarely within the applicable Guideline range of

121 to 151 months, and we would ordinarily expect such a sentence to be

reasonable. Talley, 431 F.3d at 788.

      Finding Ramos’s sentence to be procedurally and substantively reasonable,

we affirm.

      AFFIRMED.




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