              Case: 12-13926    Date Filed: 07/01/2013   Page: 1 of 5


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13926
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:12-cr-20135-JAL-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus


DANIEL DANGER,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________
                                 (July 1, 2013)

Before CARNES, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Daniel Danger appeals his convictions and sentences for conspiracy to

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

§ 841(a)(1). Before trial, Danger filed a motion for new counsel on the bases that

he was unable to communicate with his trial counsel because he did not speak

English and his trial counsel did not speak Spanish, and that his trial counsel did

not give him an appropriate amount of attention. After a hearing on the motion,

the district court denied Danger’s motion. Danger subsequently pleaded guilty and

received three concurrent terms of 36 months’ imprisonment.

      On appeal, Danger first argues that the district court erred in denying his

motion for new counsel. Second, Danger argues that his sentence is substantively

unreasonable. After review, we affirm.

                            I. Motion for New Counsel

      We review a district court’s ruling on a defendant’s motion for new counsel

for abuse of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir.

1997). In reviewing a district court’s denial of a motion for new counsel, we

consider: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry

into the merits of the motion; and (3) whether the conflict resulted in a total lack of

communication such that an adequate defense was not presented. Id. Even if the

district court abuses its discretion in denying a motion for new counsel, the error is

harmless unless the defendant shows that, in the context of the sentencing hearing,

he was somehow prejudiced by his counsel’s representation. Id.


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         Here, Danger’s counsel assured the district court that he could provide

sufficient representation to Danger despite the language barrier, stated that he had

previously represented Spanish-speaking clients, and confirmed that he and his

investigator (who spoke Spanish) had met with Danger to discuss the case. Danger

pleaded guilty to his offenses, and his counsel successfully argued for a downward

variance based on the personalized circumstances of Danger’s case. Accordingly,

Danger has not shown that his trial counsel did not provide an adequate defense for

him at trial. Danger has also not argued, let alone sufficiently established, that he

was prejudiced by his counsel’s representation. See id. Accordingly, the district

court did not abuse its discretion in denying Danger’s motion for new counsel.

                           II. Reasonableness of the Sentence

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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). “We may set aside a sentence only if we determine, after giving a full

measure of deference to the sentencing judge, that the sentence imposed truly is

unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en

banc).

         The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,


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provide just punishment for the offense, deter criminal conduct, and protect the

public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In

imposing a particular sentence, 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 guideline 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).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Guidelines as advisory and not

mandatory, considered the § 3553(a) factors, did not select a sentence based on

clearly erroneous facts, and adequately explained the chosen sentence. Gall, 552

U.S. at 51, 128 S. Ct. at 597. Once we determine that a sentence is procedurally

sound, we examine whether the sentence was substantively reasonable in light of

the totality of the circumstances. Id.

      “The party challenging the sentence bears the burden to show it is

unreasonable in light of the record and the § 3553(a) factors.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not apply a

presumption of reasonableness for sentences falling within the guideline range,


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“ordinarily we would expect a sentence within the Guidelines range to be

reasonable.” United States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005).

      Here, Danger’s sentence was substantively reasonable. We ordinarily expect

a guideline sentence to be reasonable, and Danger received a below-guideline

sentence. See id. Danger was held accountable for 45.1 grams of oxycodone as

the primary seller, and he was also connected to a much larger amount of pills.

The district court considered the statements of the parties and thoroughly discussed

the sentencing factors. Danger’s claim that there is an unwarranted disparity

between his sentence and the 32-month sentence of a co-defendant is without merit

because Danger pled guilty to all three counts of the indictment while the co-

defendant pled guilty to only one count. Accordingly, given the nature of the

offenses and the downward variance, the district court’s sentences were

substantively reasonable.

                                  III. Conclusion

      After careful review of the record, we affirm Danger’s convictions and

sentences.

      AFFIRMED.




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