            Case: 13-15378    Date Filed: 09/12/2014   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15378
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20438-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

JAMEL MELVIN,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 12, 2014)

Before WILSON, PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:
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       Jamel Melvin appeals his 84-month sentence for possessing a firearm and

ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). For the


first time on appeal, Melvin argues that the district court erred in treating his prior

conviction under Fla. Stat. § 893.13(1)(a) as a “controlled substance offense” as

defined in U.S.S.G. § 4B1.2(b) and enhancing his base offense level under

U.S.S.G. § 2K2.1(a)(3) because, unlike its federal statutory counterparts, the

Florida statute does not include knowledge of the illicit substance as an element.1

Melvin also argues that his above-guideline sentence was procedurally and

substantively unreasonable, partly because the district court improperly considered

his prior arrest record.

       Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                               I.

       We review sentencing issues not raised before the district court for plain

error. United States v. Castro, 455 F.3d 1249, 1251–52 (11th Cir. 2006)(per

curiam). To establish plain error, a defendant must show (1) an error, (2) that is

plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1253. “When the

       1
        Melvin’s presentence investigation report (PSI) identified the conviction as “Cocaine
Sell/Man/Del/Possession w/ Intent.” The PSI did not identify the statute underlying the
conviction, but the parties agree that it was Fla. Stat. § 893.13(1)(a).
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explicit language of a statute or rule does not specifically resolve an issue, there

can be no plain error where there is no precedent from the Supreme Court or this

Court directly resolving it.” Id. (internal quotation marks omitted).

      Under the Sentencing Guidelines, the base offense level for a defendant

convicted of possessing a firearm as a felon is 22 if the offense involved a

semiautomatic firearm capable of accepting a large capacity magazine and the

defendant has a prior felony conviction for a crime of violence or a “controlled

substance offense.” U.S.S.G. § 2K2.1(a)(3). The guidelines that are in effect at

the time of a defendant’s sentencing should guide a district court’s sentencing

calculations and findings. 18 U.S.C. § 3553(a)(4). As used in § 2K2.1, the term

“controlled substance offense” means

      an offense under federal or state law, punishable by imprisonment for
      a term exceeding one year, that prohibits the manufacture, import,
      export, distribution, or dispensing of a controlled substance (or a
      counterfeit substance) or the possession of a controlled substance (or a
      counterfeit substance) with intent to manufacture, import, export,
      distribute, or dispense.

U.S.S.G. § 4B1.2(b); see id. § 2K2.1, cmt. n.1 (providing that § 4B1.2(b)’s

definition of controlled substance offense applies to base offense level

enhancements under § 2K2.1).

      Under Florida law, it is a crime to “sell, manufacture, or deliver, or possess

with intent to sell, manufacture, or deliver, a controlled substance.” Fla. Stat.

§ 893.13(1)(a). Knowledge of the illicit nature of a substance is not an element of
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this offense. Id. § 893.101(1)–(2). Where the offense involves cocaine, it is a

second-degree felony and carries a 15-year maximum term of imprisonment. Id.

§§ 893.13(1)(a)(1), 893.03(2)(a)(4), 775.082(3)(d).

      In Donawa v. U.S. Attorney General, 735 F.3d 1275, 1281–83 (11th Cir.

2013), we held that a conviction under Fla. Stat. § 893.13(1)(a) did not qualify as

an “aggravated felony” under the Immigration and Nationality Act—which defines

the term, in part, as any drug trafficking offense listed in 18 U.S.C. § 924(c)—

because the federal law included knowledge of the illicit nature of the substance as

an offense element. In Descamps v. United States, 570 U.S. __, 133 S. Ct. 2276,

2285–86, 2293 (2013), the Supreme Court held that a defendant’s prior California

burglary conviction did not qualify as a “violent felony” under the Armed Career

Criminal Act, 18 U.S.C. § 924(e).

      Because Melvin did not dispute before the district court that his prior

conviction qualified as a controlled substance offense, our review is limited to

plain error. See Castro, 455 F.3d at 1251. The district court did not plainly err, as

it was only required to consider the version of U.S.S.G. § 4B1.2(b) in effect at the

time of Melvin’s sentencing, which does not expressly require that a state law

include knowledge of the illicit nature of a substance as an offense element. 18

U.S.C. § 3553(a)(4). Further, given that Descamps and Donawa address other

federal statutes and do not address whether an offense under Fla. Stat.


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§ 893.13(1)(a) is a controlled substance offense under U.S.S.G. § 4B1.2(b), their

holdings cannot establish plain error in this case. See Descamps, 570 U.S. at __,

133 S. Ct. at 2285–86; Donawa, 735 F.3d at 1280.

                                          II.

      We review the reasonableness of a sentence, including a sentence above the

advisory guideline range, under a deferential abuse-of-discretion standard of

review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). We

will reverse only if we “are left with the definite and firm conviction that the

district court committed 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. Irey, 612 F.3d 1160, 1190 (11th Cir.

2010) (en banc)(internal quotation marks omitted).

      We first ensure that the sentence is procedurally reasonable, determining

whether the district court erred in calculating the guideline range, treated the

Sentencing Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a)

factors, selected a sentence based on clearly erroneous facts, or failed to adequately

explain the sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The district court

should articulate enough to establish that it considered the parties’ arguments and

has a reasoned basis for exercising its own legal decisionmaking authority. Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). The district court


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is generally not required to explicitly discuss each of the § 3553(a) factors—its

consideration of the defendant’s arguments at sentencing and statement that it took

the factors into account is sufficient. United States v. Sanchez, 586 F.3d 918, 936

(11th Cir. 2009).

      Next, we examine whether a sentence is substantively reasonable in light of

the totality of the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. at 597. 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, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. See 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). The weight

given to any specific § 3553(a) factor is committed to the sound discretion of the

district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

      We do not presume that a sentence outside the guideline range is

unreasonable, and “must give due deference to the district court’s decision that the


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§ 3553(a) factors, on a whole, justify the extent of the variance.” Irey, 612 F.3d at

1187 (internal quotation marks omitted). Extraordinary justification is not

required, but the district court should explain why the variance is appropriate, and

the justification must be sufficiently compelling to support the degree of the

variance. Id. at 1186–87.

       Furthermore, “[n]o limitation shall be placed on the information concerning

the background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” 18 U.S.C. § 3661. When a defendant fails to object to

allegations of fact in the PSI, he admits those facts for sentencing purposes.

United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).

       Melvin’s sentence is procedurally reasonable. The district court explicitly

indicated that it considered the parties’ arguments, the PSI, and the § 3553(a)

factors in finding an upward variance to be appropriate, and directly responded to

Melvin’s argument that his sentence was unduly harsh. See Sanchez, 586 F.3d at

936.

       Melvin’s sentence is also substantively reasonable. The district court was

free to consider Melvin’s entire criminal history, including his unobjected to

conduct described in his PSI that did not result in conviction or prosecution. See

18 U.S.C. § 3661; Wade, 458 F.3d at 1277. The district court explained why the


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variance was appropriate, and Melvin’s criminal history and record of threatening

others with a firearm was sufficiently compelling justification, as this implicated

§ 3553(a) factors such as the need to promote respect for the law, protect the public

from Melvin’s future crimes, and deter criminal conduct. Although the district

court may not have weighed Melvin’s history of mental problems or purported

non-blameworthy role in the offense as much as he desired, its decision to weigh

other factors more heavily was within its sound discretion. See Clay, 483 F.3d at

743.

       AFFIRMED.




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