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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15668
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:89-cr-00060-JDW-TGW-1



UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                 versus

JOHN J. POWERS,

                                                Defendant-Appellant.

                      ________________________

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

                            (October 3, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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       John Powers appeals his total sentence of 64 months’ imprisonment,

imposed after being resentenced, for being a convicted felon in possession of a

firearm, possession of an unregistered firearm, transportation of a stolen firearm

and a stolen vehicle, and possession of counterfeit currency. Powers was first

sentenced in 1990 and received an enhancement under the Armed Career Criminal

Act for prior convictions including a state-level charge that followed his escape

from jail. Following the Supreme Court’s decision in Johnson v. United States,

576 U.S. ___, 135 S. Ct. 2551 (2015), Powers filed a § 2255 motion to vacate his

sentence, challenging the application of the ACCA to his sentence. The

government filed a joint stipulation with Powers that his escape from prison no

longer qualified as a violent felony and agreed that his sentence should be vacated

as a result. After the district court resentenced him on December 18, 2017, to 64

months’ imprisonment, Powers timely appealed.

       On appeal, he argues that: the district court (1) plainly erred in its

application of U.S.S.G. § 4A1.2 and also plainly erred by failing to apply § 5G1.3;

(2) committed a Jones 1 error by failing to elicit objections after it explained the

sentence it imposed; and (3) imposed a procedurally and substantively

unreasonable sentence. Each argument is addressed in turn.



1
 United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by United
States v. Morrill, 984 F.2d 1136 (11th Cir. 1993).
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                                            I.

      Generally, “[t]he district court’s interpretation of the sentencing guidelines is

subject to de novo review on appeal, while its factual findings must be accepted

unless clearly erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.

2005) (quotations omitted). However, when a party fails to challenge the

application of the sentencing guidelines in the district court, we review for plain

error. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the

plain error standard, the appellant must demonstrate “that (1) there is an error;

(2) that is plain or obvious; (3) affecting his substantial rights in that it was

prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Aguilar-Ibarra, 740

F.3d 587, 592 (11th Cir. 2014) (quotations omitted). For an error to be plain, it

must be “contrary to explicit statutory provisions or to on-point precedent in this

Court or the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232

(11th Cir. 2013) (quotations omitted).

      Interpretation of the Guidelines is governed by traditional rules of statutory

construction. United States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017). The

language of the Guidelines is given its “plain and ordinary meaning.” United

States v. Tham, 118 F.3d 1501, 1506 (11th Cir. 1997).




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      Generally, “a defendant’s sentence must be based on the Guidelines that are

in effect on the date that the defendant is sentenced.” United States v. Lance, 23

F.3d 343, 344 (1994) (quotations omitted). However, if doing so results in a

violation of the ex post facto clause of the Constitution, the district court “must use

the Guidelines Manual in effect on the date the crime was committed.” Id.

      The 1989 Sentencing Guidelines provide that a “prior sentence,” for the

purposes of calculating criminal history, is “any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for

conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1) (1989); see also

id. § 4A1.2, cmt. n.1. “Prior sentences imposed in unrelated cases are to be

counted separately,” whereas “[p]rior sentences imposed in related cases are to be

treated as one sentence.” Id. § 4A1.2(a)(2). “Cases are considered related if they

(1) occurred on a single occasion, (2) were part of a single common scheme or

plan, or (3) were consolidated for trial or sentencing.” Id. § 4A1.2, cmt. n.3

(1989). According to the 1989 Sentencing Guidelines, for sentencing in cases

where a defendant is serving an unexpired term of imprisonment, “[i]f the instant

offense was committed while the defendant was serving a term of imprisonment

(including work release, furlough, or escape status), the sentence for the instant

offense shall be imposed to run consecutively to the unexpired term of

imprisonment.” Id. § 5G1.3 (1989) (emphasis added).


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      As an initial matter, the probation officer and sentencing court calculated

Powers’s guideline ranging using the 1989 version of the manual due to ex post

facto issues, and Powers has not explicitly challenged that on appeal, thus

abandoning the issue. As to the application of § 4A1.2, Powers argues that his

February 1990 conviction in Case No. 89-612 for criminal contempt, bank

robberies, and possession of a stolen vehicle does not count as a “prior offense”

because it is conduct which is part of the instant offense. To support this claim, he

raises two arguments. First, he points out that evidence from Case No. 89-61 was

found in his apartment along with evidence supporting the counts of the instant

case. Second, he argues that the stolen vehicle in Count One of this case

(transportation of a stolen vehicle) is the same vehicle as in Count Three of Case

No. 89-61 (possession of a stolen motor vehicle).

      The first argument can be rejected out of hand. The mere fact that there is

evidentiary overlap between two unrelated cases does not mean that the cases

derive from related conduct. Even where offenses were committed within the

same time period, if they involved different victims and different conduct, the

previous offense counts as a “prior sentence” under § 4A1.2. See United States v.

Johnson, 87 F.3d 1257, 1260 (11th Cir. 1996). That is the case here. Powers’



2
  Powers was convicted by the Middle District of Florida in Case No. 8:89-cr-00061-SCB-TGW
(“Case No. 89-61”).
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conviction for bank robbery in Case No. 89-61 is entirely unrelated to the charges

in the instant case, which consist of illegal possession and interstate transportation

crimes.

      The second argument presents a closer question—possession and

transportation of the same stolen vehicle could be part of the same conduct—but

Powers fails to significantly develop it or cite any meaningful caselaw. In any

event, even if we determined that Count One in this case and Count Three of Case

No. 89-61 constitute conduct that is “part of the instant offense,” § 4A1.2 cmt. n. 1,

the other counts clearly do not. That is to say, even if we buy Powers’ argument

about the relatedness of the stolen vehicle to both cases, he would still receive

three criminal history points under § 4A1.2. Accordingly, we conclude that the

district court did not plainly err because the offense conduct in Powers’ prior

consecutive sentence, as a whole, was not related to the offense conduct in the

instant case.

      As to the application of § 5G1.3, Powers invited any error as to whether the

present sentence should have run concurrent to his previous sentence by repeatedly

telling the court, in advocating for a lesser sentence, that the present sentence

would still run consecutive to the prior sentence. We are precluded from

reviewing an issue raised on appeal if it has been waived through the doctrine of

invited error, which “is implicated when a party induces or invites the district court


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into making an error.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.

2009) (quotations omitted). We have applied the doctrine of invited error where,

as here, the party affirmatively agreed with the challenged action of the district

court. See United States v. Jernigan, 341 F.3d 1273, 1289–90 (11th Cir. 2003)

(concluding that the defendant invited error by affirmatively stipulating to the

admission of the evidence challenged on appeal).

       But even if Powers had not invited the error, applying § 5G1.3 as he now

requests would be in error. Under the 1989 Sentencing Guidelines, § 5G1.3 only

applies “[i]f the instant offense was committed while the defendant was serving a

term of imprisonment (including work release, furlough, or escape status).” By its

plain language, it does not apply here; Powers did not commit the instant offense

while serving a term of imprisonment and does not contend otherwise.3

       In any event, the district court did not plainly err by failing to apply § 5G1.3

because that guideline, as it existed in 1989, did not require running sentences

concurrently. We affirm as to this issue.




3
 Powers confuses the issue further by quoting provisions of § 5G1.3 that do not appear in the 1989
Guidelines—it is not entirely clear which Sentencing Guidelines he is quoting, but as the
Government correctly points out, the language he quotes first appears in the 2003 Guidelines. We
have several comments in this regard. First, Powers did not contest the application of the 1989
Guidelines before the district court and does not appear to do so now. Second, to the extent that
he now attempts to argue that another year’s guidelines ought to apply, we reject that argument
outright because it was not briefed. United States v. Thomas, 242 F.3d 1028, 1033 (11th Cir.
2001).
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                                                   II.

          Next, Powers argues that the district court committed a Jones violation by

failing to elicit objections from both parties after it explained the sentence it

imposed. In Jones, we exercised our supervisory power over the district courts and

instructed them “to elicit fully articulated objections, following imposition of a

sentence, to the court’s ultimate findings of fact and conclusions of law.” 899 F.2d

at 1102. We explained that our instructions required that the district court (1)

“give the parties an opportunity not only to resolve the objections contained in the

addendum, but also . . . to object to the district court’s ultimate findings of fact and

conclusions of law and to the manner in which the sentence is pronounced”; and

(2) if an objection is made, “elicit from counsel an articulation of the grounds on

which the objection is based.” Id. “[W]hen a district court fails to elicit objections

after imposing a sentence, we normally vacate the sentence and remand to the

district court to give the parties an opportunity to present their objections.” United

States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). “A remand is

unnecessary, however, when the record on appeal is sufficient to enable review.”

Id.

          Here, Powers argues that the district court should have elicited objections

from both parties for a second time after its soliloquy 4 at the end of the sentencing


4
    At the end of the sentencing hearing, the court said:
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hearing. Powers’s argument is essentially that the district court’s soliloquy

operated as a second or supplementary explanation of the sentence that it imposed,

thereby requiring the court to give the parties another chance to object. That is one

way to read the district court’s remarks, but perhaps not the most natural way to do

so. We conclude that the district court was merely providing conclusory remarks

that continued its previous remarks about the original sentencing judge—not

making new findings of fact or conclusions of law. Therefore, it was not required

to elicit objections from the parties a second time and it fully satisfied Jones by

eliciting objections in a timely manner earlier in the hearing. Accordingly, we

affirm as to this issue.

                                                 III.

       Finally, Powers argues that his sentence was procedurally and substantively

unreasonable. We generally review the reasonableness of a sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). However, where a defendant did not object to the procedural




       I know Judge Castagna [the original sentencing judge] well enough to suggest that
       he would be in complete agreement with what I’ve done here today. Even though
       he had good reason to give you those sentences and you deserved them at that time,
       he is also one to recognize when errors need to be addressed and corrected, he
       would be the first to do so. He is still gracing us with his presence in this courthouse
       and I will next time I see him share with him today’s hearing and the result of that
       hearing. And I will tell you that he will look at me and say, “Mr. Whittemore, you
       have done the appropriate thing and followed the law.”


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reasonableness of the sentence imposed, we review for plain error. United States

v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). We can reverse on plain

error review only if there was a plain, or clear, error that affected “substantial

rights,” which usually requires that the error have been prejudicial. Aguilar-Iberra,

740 F.3d at 592.

      A sentence may be procedurally unreasonable if the sentencing court fails to

consider the factors set forth in 18 U.S.C. § 3553(a), considers the Guidelines to be

mandatory, presumes that the Guidelines are reasonable, fails to properly calculate

the appropriate guideline range, selects a sentence based on clearly erroneous facts,

or fails to adequately explain the chosen sentence. Gall, 552 U.S. at 50–51.

However, we do not require a district court to state on the record that it has

explicitly considered each of the § 3553(a) factors and will consider it sufficient

where the district court acknowledges that it considered the defendant’s arguments

and the § 3553(a) factors. United States v. Dorman, 488 F.3d 936, 938 (11th Cir.

2007). In sentencing a defendant, the district court “should set forth enough to

satisfy the appellate court that [it] has 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 (2007).

      After reviewing for procedural reasonableness, we consider the substantive

reasonableness of a sentence. Gall, 552 U.S. at 51. In reviewing a district court’s


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sentence for substantive reasonableness, we examine the totality of the

circumstances to determine whether the statutory factors in § 3553(a) support the

sentence in question. Gonzalez, 550 F.3d at 1324. A sentence may be

substantively unreasonable if a district court unjustifiably relied on any § 3553(a)

factor, considered impermissible factors, or failed altogether to consider pertinent §

3553(a) factors. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).

      The district court’s sentence must be “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2), including the need

for the sentence to reflect the seriousness of the offense and to promote respect for

the law, the need for adequate deterrence, the need to protect the public, and the

need to provide the defendant with educational or vocational training, medical

care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The district court

must also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the kinds of sentences available, the guideline

range, any 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 party who challenges the sentence bears the burden of showing that the

sentence is unreasonable in light of the record and the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight given to any


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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 will not remand for

resentencing unless left with a definite and firm conviction that the district court

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

a sentence outside of the range of reasonable sentences based upon the facts of the

case. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Although

we do not automatically presume that a sentence falling within the guidelines range

is reasonable, we ordinarily expect such a sentence to be reasonable. United States

v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Further, a sentence that is below the

statutory maximum is another indicator of reasonableness. Gonzalez, 550 F.3d at

1324. That we may reasonably conclude a different sentence is appropriate is

insufficient for reversal. Gall, 552 U.S. at 51.

      Powers’ argument here is twofold. First, he argues that the district court

repeatedly referred to the sentencing decision of the previous court, a signal that it

was “supplant[ing] the original sentencing judge[’]s decision . . . for its own.

Second, the original sentencing took place before the Supreme Court’s opinion in

United States v. Booker, 543 U.S. 220 (2005), at a time when the sentencing

guidelines were mandatory. Therefore, he concludes, through repeatedly referring

to the previous court’s application of then-binding sentencing guidelines, the




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district court in the instant case impermissibly presumed that the Guidelines range

was reasonable.

       As an initial matter, Powers concedes that he did not object to the procedural

reasonableness of the sentence imposed, and so plain error review applies. See

Vandergrift, 754 F.3d at 1307. As the Supreme Court held in United States v.

Olano, 507 U.S. 725, 732–34 (1993) (citation omitted), “‘[p]lain’ is synonymous

with ‘clear’ or, equivalently, ‘obvious.’”

       While the district court spoke imprecisely here, possibly creating the

implication that it was basing its most recent sentence on the sentence imposed by

the previous court, 5 we cannot say that its language clearly or obviously indicated a

presumption on its part that the guidelines were reasonable. Instead, it is clear

from the record that the district court district court explicitly considered the

§ 3553(a) factors and Powers’ arguments regarding an appropriate sentence,

ultimately imposing a sentence that it said was “sufficient but not greater than

necessary to achieve the statutory purposes of sentencing.”

       Moreover, we disagree with Powers’ assertion that the district court

improperly relied on the original sentence in imposing the instant sentence. The

district court simply indicated that the judgment that it imposed was consistent


5
 Our sister circuits have held that for an appellant to succeed on plain error review, his argument
must contain more than mere conjecture and possible implications. See United States v. Faler, 832
F.3d 849, 853 (8th Cir. 2016); United States v. Westerfield, 714 F.3d 480, 489 (7th Cir. 2013).
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with the original judgment, in that the new total sentence would run consecutive to

a prior, separate sentence. In any event, Powers cites no cases to support his

proposition that passing references to the original, invalid sentence during a

resentencing creates an impermissible presumption that the Guidelines are

reasonable. Accordingly, we reject Powers’ argument that his sentence was

procedurally unreasonable.

      As to substantive reasonableness, Powers argues that the district court (a)

erred in dismissing his request for a downward variance; (b) relied on improper

speculation about why the government did not file a Rule 35 motion; and (c)

improperly conformed the sentence it imposed to the previous, invalid sentence.

      Powers’ first contention is without merit. Our review of a district court’s

decision to not apply a downward variance is limited. We will generally defer to

the district court’s judgment in applying and weighing the § 3553(a) factors

“unless the district court has made a ‘clear error of judgment’ and has imposed ‘a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.’” Gonzalez, 550 F.3d at 1324 (citation omitted). Ultimately, “[a]n

acknowledgement that the district court has considered the defendant’s arguments

and the § 3553(a) factors will suffice.” Id. Here, the district court did not err in

refusing to grant Powers’ request for a downward variance. The record is plain




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that the district court explicitly weighed the § 3553(a) factors and considered his

arguments for a downward variance. We affirm as to this issue.

          Powers next argues that the district court improperly speculated about facts

surrounding his failure to receive a benefit for his substantial assistance in a

murder case. This argument, too, is without merit. Powers draws specific

attention to the district court’s comments about then-U.S. Attorney, now-Judge

Charles R. Wilson’s purported motivation in not filing a Rule 35 motion to reduce

Powers’s sentence after his assistance, but we find no error there. We interpret the

district court’s remarks 6 not as using impermissible speculation to justify Powers’

sentence, but as a comment on what the court viewed as a claim that the

prosecutor’s refusal to file a substantial assistance motion under Rule 35 was in




6
    Specifically, the district court said:

          … I’m not unfamiliar with [Assistant U.S. Attorney] Zitek and the policies of that
          office at or about the time that there was a discussion about a Rule 35 [motion].
          I’m not here to address, whether by way of correction or otherwise, whatever
          happened back then. Although it’s part of Mr. Powers’ background and
          characteristics, I’ve read it, I appreciate the substantial assistance he provided. I
          have to accept, however, the reasons articulated by Mr. Zitek in his letter. Whether
          one would disagree or agree with those reasons, it is what it is, as they say.

          I will add only parenthetically, Mr. Powers, that knowing Judge Wilson as I do and
          having known him for more than 25 years, even if Mr. Zitick had some personal
          vendetta—which I’m sure you think he did—that would not have impressed Judge
          Wilson. There had to be underlying reasons, sound reasons, for their decision, even
          if that decision was inconsistent with the prosecutors up in Atlanta who were trying
          to convince this office—meaning the U.S. Attorney’s Office—to file a Rule 35.


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error.7 Indeed, the district court made clear that it was not considering the

correctness, vel non, of the prosecutor’s Rule 35 decision; rather, it is clear that the

district court’s sentence was based solely on the need to impose a sentence which

is sufficient, but not greater than necessary, to achieve the statutory purpose of

sentencing.

       Finally, Powers argues that the district court committed clear error by

considering an improper factor: his previous, invalid sentence and the previous

judge’s rationale in issuing it. This issue overlaps with our discussion above,

where we found no error, and we likewise find no error here. As noted above, the

quotes from the sentencing hearing transcript that Powers cites do not demonstrate

that the district court improperly relied on the previous sentence in arriving at its

decision. Although the district court noted in passing that its sentence was

consistent in some ways with the original sentence, our review of the entire

sentencing transcript persuades us that the district court properly considered all of

Powers’ arguments and proffered mitigating circumstances (including his

argument for a downward variance), considered the several § 3553(a) factors, and

imposed a sentence which it perceived to be sufficient but not greater than

necessary to achieve the statutory factors.


7
 Under Wade v. United States, we can only review the Government’s failure to file a Rule 35
motion if the refusal “was based on an unconstitutional motive” or “was not rationally related to
any legitimate government end.” 504 U.S. 181, 186 (1992).
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Because he fails to demonstrate plain error, we affirm as to this issue.

AFFIRMED.




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