           Case: 12-13624   Date Filed: 10/04/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13624
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:11-cr-00113-MEF-SRW-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JAMIE DEMARCO JONES,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 4, 2013)

Before MARCUS, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
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      Jamie Demarco Jones appeals his convictions and sentences for use of a

communication facility, a telephone, in attempting to possess with intent to

distribute marijuana, in violation of 21 U.S.C. § 843(b); attempt to possess with

intent to distribute marijuana, in violation of 21 U.S.C. § 846; and possession with

intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1). On appeal,

Jones argues that: (1) the district court abused its discretion by admitting into

evidence audio and video tapes that were recorded prior to the dates of the alleged

conduct in the indictment; and (2) his sentences were greater than necessary to

serve the goals of sentencing, which violated of 18 U.S.C. § 3553(a). After

thorough review, we affirm.

      We review all evidentiary decisions in the district court for abuse of

discretion, which occurs if the district court’s evidentiary decision was based on a

“clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.

2005). Even if we determine that an abuse occurred, we will only overturn an

evidentiary ruling if it resulted in a substantial prejudicial effect. United States v.

Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004). We review the sentence a

district court imposes for “reasonableness,” which “merely asks whether the trial

court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.

2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).


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      First, we are unpersuaded by Jones’s claim that the district court erred by

admitting the audio and video tapes of pre-indictment conduct. The Federal Rules

of Evidence state as a threshold matter that all evidence that is relevant to the case

is admissible, unless otherwise provided by law. Fed.R.Evid. 402. We have held

that “[e]vidence is relevant if it has any tendency to make the existence of any fact

of consequence more or less probable than it would be without the evidence, and

relevant evidence is generally admissible.” United States v. Capers, 708 F.3d

1286, 1308 (11th Cir. 2013) (citing Fed.R.Evid. 401, 402).

      Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”             Fed.R.Evid.

404(b)(1). But this evidence may be introduced for another purpose, such as

“proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). However, we

have held that evidence of criminal activity prior to the charged offense is not

extrinsic -- thus, falling outside the scope of Rule 404(b) -- when it is “(1) an

uncharged offense which arose out of the same transaction or series of transactions

as the charged offense, (2) necessary to complete the story of the crime, or (3)

inextricably intertwined with the evidence regarding the charged offense.” United

States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (citation omitted).


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Evidence is inextricably intertwined to the charged offense if it is an integral and

natural part of a witness’s testimony regarding the charged offense. Id. Evidence

that is not part of the charged crime that also explains “the context, motive[,] and

set-up” is intrinsic if it can be linked to the charged crime in time and circumstance

or if it is necessary to complete the narrative for the jury. Id. (alteration in original;

citing United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998)).

Regardless of whether the evidence is intrinsic or extrinsic to the charged crime, it

must still pass the Rule 403 test to ensure that its probative value is not

substantially outweighed by the danger of unfair prejudice. Id.

      Here, the district court did not abuse its discretion by admitting the evidence

of prior uncharged offenses that Jones transacted with his codefendants because the

evidence was intrinsic to the charged offenses.          For starters, the question of

whether Jones engaged in a drug transaction was the central issue of this case.

Thus, the evidence was relevant because it made it more or less probable that Jones

committed the crimes by showing that he had a relationship with his suppliers and

that there was a specific scheme set up for him to receive the marijuana. Further,

the evidence arose out of the same series of criminal transactions as the charged

offenses, and it was necessary to complete the narrative of the crimes.                In

particular, the evidence explained the “context, motive, and set-up” of the charged

offense, and it completed the narrative of the charged offense for the jury by


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providing a complete picture of what led to that ultimate offense. See Edouard,

485 F.3d at 1344.

      In addition, the probative value of the evidence was not substantially

outweighed by the danger of any unfair prejudice. Jones pleaded not guilty to the

charges, making intent a factual issue and rendering this evidence especially

probative. The charged and uncharged offenses were similar in that they both

concerned trafficking marijuana among the same three individuals, using the same

methods, and occurring within weeks of each other. See id. at 1345. The jury

already had heard testimony that Jones engaged in prior transactions, to which

Jones did not object. The videos did not show any drugs actually changing hands,

so any purported danger of unfair prejudice was reduced in any event. See id. at

1345-46.

      We also find unavailing Jones’s claim that his sentence was unreasonable.

In reviewing sentences for reasonableness, we typically perform two steps. Pugh,

515 F.3d at 1190.      First, we “‘ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.


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38, 51 (2007)).1 If we conclude that the district court did not procedurally err, we

consider the “‘substantive reasonableness of the sentence imposed under an abuse-

of-discretion standard,’” based on the “‘totality of the circumstances.’”                       Id.

(quoting Gall, 552 U.S. at 51). Applying “deferential” review, we must determine

“whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir.2005). “[W]e will not second guess the weight (or lack thereof) that

the [court] accorded to a given factor ... as long as the sentence ultimately imposed

is reasonable in light of all the circumstances presented.” United States v. Snipes,

611 F.3d 855, 872 (11th Cir.2010) (quotation, alteration and emphasis omitted),

cert. denied, 131 S.Ct. 2962 (2011). We will not reweigh the relevant § 3553(a)

factors, and will not remand for resentencing unless the district court committed a

clear error of judgment in weighing the § 3553(a) factors by imposing a sentence

outside the range of reasonable sentences.            United States v. Langston, 590 F.3d

1226, 1237 (11th Cir. 2009).




1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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      The party challenging the sentence bears the burden to show it is

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

denied, 131 S.Ct. 674 (2010). While we do not automatically presume a sentence

falling within the guideline range to be reasonable, we ordinarily expect that

sentence to be reasonable. Talley, 431 F.3d at 788. The district court need not

discuss or explicitly state on the record each § 3553(a) factor. United States v.

Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). “Rather, an acknowledgment by the

district judge that he or she has considered the § 3553(a) factors will suffice.” Id.

      In this case, Jones’s sentences were both procedurally and substantively

reasonable. The sentences are procedurally reasonable because the district court

expressly said that it considered the § 3553(a) factors. The district court also went

through specific factors to explain its reasoning. And even though it did not state

each factor on the record, it stated that it considered them, which was sufficient. It

also properly calculated the sentencing guideline range and did not base its

sentences on clearly erroneous facts. Further, the district court consulted with the

attorneys to ensure that Jones’s sentences would be fair in light of the sentence he

is likely to receive for related crimes committed in Florida.

      Nor did Jones carry his burden to establish that his sentences were

substantively unreasonable. To begin with, his sentences were at the low end of

the guideline range, which we ordinarily expect to be reasonable. Further, the


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record shows that Jones provided false testimony at trial about his involvement in

the offense, he attempted to blame his cousin for the drugs found in his apartment,

and the offenses involved a very large quantity of marijuana -- 27 kilograms. On

this record, Jones has not established that the district court committed a clear error

in judgment when it announced the sentences.

      AFFIRMED.




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