                                                                             [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                              ELEVENTH CIRCUIT
                                            No. 11-14890                         APRIL 11, 2012
                                        Non-Argument Calendar                     JOHN LEY
                                      ________________________                     CLERK


                               D.C. Docket No. 9:11-cr-80041-WPD-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                         Plaintiff-Appellee,

                                                  versus

CLEM DEMETRIOS BEAUCHAMP,
a.k.a. Clem Beauchamp,

                                           lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                        (April 11, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Clem Beauchamp pleaded guilty to possession of an unregistered silencer,

in violation of 26 U.S.C. § 5861(d), and was sentenced to 120 months’
imprisonment. He now appeals, challenging the reasonableness of his sentence.

After review, we affirm.

      At issue in this case is the district court’s consideration of an unrecorded

conversation between Beauchamp’s girlfriend Felicia Brown (Felicia) and her ex-

husband Peter Brown (Peter). After Felicia’s car was repossessed, an employee of

the repossession company found a revolver, silencer, and mask in the car. When

Felicia tried to reclaim her car from the impound lot and learned the items had

been given to police, she stated the items belonged to her boyfriend. Police

learned Beauchamp was the boyfriend and obtained a search warrant for his home.

During the search they found insulation and duct tape, along with a computer that

had been used to visit web sites detailing how to make a homemade silencer.

      When questioned by police, both Felicia and Beauchamp denied seeing the

firearm and silencer found in her car. ATF special agent Daniel Dooley, seeking

to speak to Felicia alone, contacted Peter to speak to her on his behalf. Peter later

met with Felicia, gave her Dooley’s card, and, on his own, recorded their

conversation. In the recording, Felicia admitted that she had obtained the firearm

and Beauchamp had made the silencer. According to Peter, in an unrecorded part

of the conversation, Felicia told him that Beauchamp “was gonna to try to get rid

of” Michelle Dent, the mother of Beauchamp’s children. Peter did not contact the

                                          2
ATF agent after his meeting with Felicia, nor did he tell the police or ATF the

details of the conversation for fourteen months.1

       Beauchamp pleaded guilty to possession of an unregistered silencer. The

district court calculated Beauchamp’s sentencing range under U.S.S.G.

§ 2K2.1(a)(3). When a defendant possesses the silencer in connection with the

attempted commission of another offense, however, the cross-reference provision

in § 2K2.1(c)(1)(A) instructs the court to apply the guideline applicable to the

attempted offense. U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1, 2A1.5. Based on Peter’s

testimony of the unrecorded conversation with Felicia, the district court found that

Beauchamp and Felicia conspired to commit murder and thus determined that the

base offense level was 33 under U.S.S.G. § 2A1.5 – the guideline applicable to

murder. With a three-level reduction for acceptance of responsibility,

Beauchamp’s total adjusted offense level was 30. Beauchamp had a lengthy

criminal history, including several violent offenses, which placed him in criminal

history category III. The resulting guideline range was 121 to 151 months’

imprisonment. Because § 5861 carried a statutory maximum sentence of 120

months’ imprisonment, this became the guideline range. U.S.S.G. § 5G1.1(a).



       1
         By the time of Beauchamp’s sentencing hearing, Felicia was dead and Beauchamp had
been charged with her murder.

                                             3
      Beauchamp objected to the court’s reliance on Felicia’s uncorroborated

hearsay statement to Peter. After listening to the arguments and finding Peter’s

testimony credible and reliable, the court concluded that 120 months’

imprisonment was the proper sentence. The court further stated that “even if the

guidelines are wrong, even if my scoring of the guidelines are wrong based on

3553(a), I find that a reasonable and sufficient sentence in this case is 120 months

in prison.” The court did not otherwise mention the § 3553(a) factors or state how

it had arrived at the sentence. This is Beauchamp’s appeal.

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41

(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), cert. denied, 131 S.Ct. 1813 (2011). A sentence may only be vacated if we

are left with a “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. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation

omitted).

                                          4
      The district court is required to impose a sentence that is “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, protect the public from the defendant’s future criminal conduct, and

provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment. See 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

applicable guideline range, the pertinent policy statements issued by the

Sentencing Commission, the need to avoid unwarranted sentence disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

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

sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Guidelines as advisory, 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. Once we

determine a sentence is procedurally reasonable, we must examine whether the

sentence, including the extent of any variance, was substantively reasonable under

                                          5
the totality of the circumstances. Id. A sentence may be substantively

unreasonable if the district court arbitrarily selects the sentence, bases the sentence

on impermissible factors, or fails to consider pertinent § 3553(a) factors. Pugh,

515 F.3d at 1192. Beauchamp bears the burden to show his sentence is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In this case, Beauchamp argues that his sentence was procedurally

unreasonable because the district court gave undue weight to the uncorroborated

hearsay testimony. He argues that the sentence is substantively unreasonable

because it is well above the guideline range that he would have faced had the court

not considered the hearsay testimony.

      A. Procedural Reasonableness

      We review credibility determinations for clear error. United States v.

Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004). We will not reverse the district

court’s credibility determination “unless it is contrary to the laws of nature, or is

so inconsistent or improbable on its face that no reasonable factfinder could accept

it.” Id. As for the use of hearsay evidence at sentencing, “the court may consider

relevant information without regard to its admissibility under the rules of evidence

applicable at trial, provided that the information has sufficient indicia of reliability

to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v.

                                           6
Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010).

       Our case law clearly provides that reliable hearsay can be considered during

sentencing. United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999). The

district court may rely on such evidence “as long as the evidence has sufficient

indicia of reliability, the court makes explicit findings of fact as to credibility, and

the defendant has an opportunity to rebut the evidence.” United States v.

Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quoting United States v.

Anderton, 136 F.3d 747, 751 (11th Cir. 1998)).

       After review, we see no procedural error in the court’s reliance on Peter’s

testimony. The district court properly considered the hearsay testimony,2 and

made explicit factual findings as to Peter’s credibility. We will defer to that

finding. Based on this testimony, the court properly calculated the guideline range

using the cross-reference provision in § 2K2.1(c)(1)(A). Peter’s testimony

established that Beauchamp and Felicia possessed the firearm and silencer as part

of their plot to murder Michelle Dent. Thus, § 2A1.5(a), the guideline applicable

to murder, was the correct guideline.



       2
          Notably, Beauchamp challenges only the reliability of the statement. He does not argue
that the court’s admission of the testimony violated his due process rights. Nor does he allege
that the district court failed to sufficiently explain the sentence imposed. Thus, he has waived
this issues. United States v. Pilati, 627 F.3d 1360, 1364 (11th Cir. 2010).

                                               7
      Nevertheless, even if the court’s guideline calculation was in error, the error

was harmless. The court stated that it would have imposed the same 120-month

sentence based on the § 3553(a) factors. “An error in the district court’s

calculation of the Sentencing Guidelines range warrants vacating the sentence,

unless the error is harmless. A Sentencing Guidelines miscalculation is harmless

if the district court would have imposed the same sentence without the error.”

United States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009) (citation

omitted) (if “a district judge clearly states that he would impose the same sentence,

even if he erred in calculating the guidelines, then any error in the calculation is

harmless”); see also United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).

      B. Substantive Reasonableness

      The district court imposed the statutory maximum sentence after

considering the § 3553(a) factors. The district court also was well aware of the

sentencing range Beauchamp faced without the cross-reference provision and the

other information in the presentence investigation report. Although the court did

not explicitly discuss the § 3553(a) factors, it was not required to do so. United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). In this case, Beauchamp

had a criminal history category III with several violent offenses. The court found

that his possession of the unregistered silencer was related to a conspiracy to

                                           8
commit murder. In imposing the sentence, the district court stated that it had

considered the guidelines and the sentencing factors. Considering the totality of

the circumstances, we cannot conclude that the sentence imposed, although at the

statutory maximum, was substantively unreasonable, and Beauchamp has not met

his burden to show otherwise.

      AFFIRMED.




                                         9
