           Case: 17-13720   Date Filed: 06/20/2018    Page: 1 of 4


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13720
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:15-cr-00351-WSD-JSA-2



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

versus

JOHNATHAN SILVERS,
a.k.a. Turtle,

                                               Defendant - Appellant.

                      ________________________

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

                             (June 20, 2018)

Before WILLIAM PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jonathan Silvers pled guilty to conspiracy to possess with intent to distribute

methamphetamine and marijuana in violation of 21 U.S.C. §§ 846 and

841(b)(1)(C) and (D).     Mr. Silvers was a Georgia state prison inmate who

conspired with fellow inmates and prison workers to smuggle contraband into the

prison for sale to other inmates. He now appeals his 113-month sentence, arguing

that the district court clearly erred in attributing 19.34 grams of methamphetamine

to him, because that quantity of drugs was seized from another individual in a

completely separate drug conspiracy from that of Mr. Silvers. Therefore, Mr.

Silvers argues, the 19.34 grams of seized methamphetamine was not reasonably

foreseeable to him and should not have become part of the district court’s drug

quantity calculation at his sentencing. Mr. Silvers argues that, without the seized

methamphetamine, his guideline range would have been 63 to 78 months, and so

the 113 month sentence he received would reflect an upward variance of 35

months.

      The government must prove the drug quantity by a preponderance of the

evidence for sentencing purposes. See United States v. Rodriguez, 398 F.3d 1291,

1297 (11th Cir. 2005). We review for clear error the district court’s determination

of the drug quantity attributable to Mr. Silvers, and will not disturb its finding

unless we are left with the definite and firm conviction that a mistake has been

made. See United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012).


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      At Mr. Silvers’ sentencing hearing, the government presented several

recordings of wiretapped conversations involving Mr. Silvers and co-conspirators

discussing drug transactions from both before and after the drug seizure, and two

different FBI agents testified about the identities of the speakers and their

interpretations of each conversation’s meaning. Based on this evidence, the district

court found Mr. Silvers was involved in the conspiracy in advance of the seizure of

the 19.34 grams of methamphetamine, and included those drugs in its drug

quantity calculation. The district court’s finding of the drug amount under the

guidelines was supported by adequate evidence. See Rodriguez, 398 F.3d at 1297.

      Any error in calculating the guidelines is harmless if (1) the district court

states that it would have imposed the same sentence even if it had decided the

guidelines issue in the defendant’s favor, and (2) assuming that the lower guideline

range requested by the defendant applied, the final sentence was still reasonable

based on the § 3553(a) factors. See United States v. Keene, 470 F.3d 1347, 1350

(11th Cir. 2006) (holding that in such a case, “it would make no sense to set aside

this reasonable sentence and send the case back to the district court since it has

already told us that it would impose exactly the same sentence, a sentence we

would be compelled to affirm.”). Any error here as to drug amount was harmless.

      The district court explicitly stated that, based on the severity of Mr. Silvers’

crime, the need to protect the public, the need to deter similar crimes in the prison,


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and its understanding of the full scope of the conspiracy – having received

extensive evidence and six presentence investigations about the prison drug ring

and having previously sentenced five other co-conspirators – it would have

sentenced Mr. Silvers to the same 113 months’ incarceration even if it had erred in

its guideline calculation or sentencing enhancements.            The district court was

permitted to weigh the § 3553(a) factors in the manner it did; the record indicates a

careful weighing of the factors, followed by a detailed explanation for why 113

months’ imprisonment was the appropriate sentence for Mr. Silvers. See United

States v. Clay, 483 F.3d 739, 746-747 (11th Cir. 2007). See also United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (indicating that a sentence well

below the statutory maximum indicates its reasonableness).1

       Based on the foregoing, we affirm Mr. Silvers’ sentence.

       AFFIRMED.




1
  Mr. Silvers does not argue on appeal that his sentence would have been substantively
unreasonable if the seized methamphetamine was excluded from the drug quantity. Therefore he
has waived that argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680-83
(11th Cir. 2014).
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