             Case: 16-10780    Date Filed: 01/08/2019   Page: 1 of 19


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                            Nos. 16-10780; 16-17749
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:15-cr-20677-FAM-2


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,
                                      versus
RICHARD SHELLEY,
a.k.a. Tristan Baker,
                                                             Defendant-Appellant.

                         __________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (January 8, 2019)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:

      Richard Shelley appeals his conviction and sentence for attempting to

possess 500 or more grams of cocaine with intent to distribute under 21 U.S.C.
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§ 846. First, Shelley argues that the district court erred by denying his challenge

under Batson v. Kentucky, 476 U.S. 79 (1986). Second, Shelley argues that the

district court violated his constitutional right to present a defense by limiting the

scope of his cross-examination of two of the government’s witnesses. Third,

Shelley argues that the district court abused its discretion by denying his motion

for a new trial based on newly-discovered evidence. Fourth, Shelley argues that

the district court procedurally erred in calculating his guideline range. Fifth,

Shelley argues that the district court’s above-guideline 240-month sentence is

substantively unreasonable because the court relied on erroneous factors to justify

an upward variance. We disagree and affirm.

                                           I.

      First, Shelley argues that the district court erred in failing to make a finding

that a prospective African-American juror was struck for a non-discriminatory

reason under Batson. We review for clear error a trial judge’s finding that a

prosecutor has exercised peremptory strikes free of discriminatory intent. United

States v. Alston, 895 F.2d 1362, 1366 (11th Cir. 1990). The trial judge’s

assessment of the prosecutor’s credibility is entitled to great deference. Batson,

476 U.S. at 98 n.21.

      Although a prosecutor ordinarily is entitled to use peremptory challenges for

any reason, the Equal Protection Clause forbids a prosecutor from challenging


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potential jurors solely on account of their race. Id. at 89. Batson provides a

three-step process for trial courts to use in determining whether a peremptory

challenge was based on race: (1) the objecting party must make a prima facie

showing that the peremptory challenge is exercised on the basis of race; (2) the

burden then shifts to the challenger to articulate a race-neutral explanation for

striking the juror in question; and (3) the trial court must determine whether the

objecting party has carried its burden of proving purposeful discrimination. United

States v. Allen-Brown, 243 F.3d 1293, 1297 (11th Cir. 2001). The ultimate burden

of persuasion, however, remains with the party challenging the strike as

discriminatory. United States v. Hill, 643 F.3d 807, 837 (11th Cir. 2011).

      Shelley argues that the district court erred by failing to make a finding that

the government used a peremptory strike on a prospective African-American juror

for a non-discriminatory reason. The district court was not, however, required to

make this finding because Shelley failed to object to the government’s use of a

peremptory strike on the prospective juror. See Allen-Brown, 243 F.3d at 1297.

Because Shelley did not properly raise a Batson challenge to the prospective juror

in question, the district court did not err by failing to make a finding that the

prospective juror was struck for a non-discriminatory reason.

                                           II.




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      Second, Shelley argues that the district court violated his constitutional right

to present a defense by limiting cross-examination of the undercover detective and

confidential informant (CI). Specifically, he argues that the district court erred by

limiting his and a co-defendant’s questions regarding: (1) what the CI earned on

other cases; (2) whether the CI had worked as a CI for other agencies; (3) the CI’s

phone number; (4) how many times the CI spoke with Shelley without recording it;

(5) whether the undercover detective believed the CI was honest with him; (6)

what instructions the undercover detective gave the CI; and (7) whether the CI

deleted text messages between him and Shelley. Shelley argues that the excluded

testimony was essential to his defense—that he was falsely induced to travel to the

agreed upon location to purchase cocaine.

      Limitations on the scope and extent of cross-examination are matters

expressly committed to the sound discretion of the trial judge, and we review such

decisions only for a clear abuse of discretion. United States v. Matthews, 168 F.3d

1234, 1244 (11th Cir. 1999). While the Constitution unquestionably provides a

defendant with the right to present a defense to criminal charges against him, this

right is not unbounded. See United States v. Frazier, 387 F.3d 1244, 1271 (11th

Cir. 2004). “The accused does not have an unfettered right to offer testimony that

is incompetent, privileged, or otherwise inadmissible under standard rules of

evidence.” Id. (citing Taylor v. Illinois, 484 U.S. 400, 410 (1988)). The district


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court has discretionary authority to rule on the admissibility of evidence, including

the power to limit cross-examination. United States v. Garcia, 13 F.3d 1464, 1468

(11th Cir. 1994). A defendant is entitled only to an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defendant might wish. United States v. Baptista-Rodriguez,

17 F.3d 1354, 1366 (11th Cir. 1994). A defendant may only cross-examine a

witness if the information sought to be elicited is relevant. United States v. Diaz,

26 F.3d 1533, 1540 (11th Cir. 1994). The district court also enjoys wide latitude to

impose reasonable limits on cross-examination based on, among other things,

confusion of the issues and interrogation that is repetitive or only marginally

relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

      Here, the district court did not abuse its discretion by imposing limitations

on Shelley and his co-defendant’s cross-examinations of the undercover detective

and CI, as the district court’s limitations were reasonable. See Garcia, 13 F.3d at

1468; Baptista-Rodriguez, 17 F.3d at 1366; Van Arsdall, 475 U.S. at 679. With

respect to Shelley’s first two assertions—that the district court erred in preventing

questions regarding what the CI earned in other cases, and whether the CI had

worked as a CI for other agencies—the court did not abuse its discretion by

limiting these inquires. The district court had already permitted both the

undercover detective and CI to testify about the CI’s role and history as a CI, and


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accordingly, the district court reasonably determined that any further questions

regarding the CI’s personal history would be repetitive and excessive. See Van

Arsdall, 475 U.S. at 679.

      Third, Shelley argues the district court erred in preventing inquiries about

the CI’s phone number. But Shelley fails to explain how the district court abused

its discretion by determining that a question regarding the CI’s phone number was

irrelevant. See Diaz, 26 F.3d at 1540. Fourth, the district court did not abuse its

discretion by preventing the co-defendant’s counsel from asking the CI about the

number of unrecorded conversations between Shelley and the CI. This question

was not relevant to his client, and Shelley’s counsel was permitted to ask similar

questions. See id.; see also Van Arsdall, 475 U.S. at 679.

      Fifth, the district court reasonably determined that the undercover

detective’s opinion regarding the CI’s honesty was irrelevant because the CI was

set to testify, and the CI’s trustworthiness was a question for the jury. See Jackson

v. Denno, 378 U.S. 368, 386 n.13 (1964) (holding that questions of admissibility of

evidence are traditionally for the court, while questions of witness credibility are

for the jury). Sixth, questions to the CI regarding what instructions the undercover

detective gave him were properly excluded as hearsay. Lastly, the record clearly

belies Shelley’s seventh assertion that he was precluded from asking the CI

whether he had deleted any text messages. The district court allowed Shelley’s


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counsel to question the CI at length about whether he had deleted any text

messages and permitted counsel to impeach the CI’s testimony with a text message

that indicated deletion of text conversations between the CI and Shelley.

      Accordingly, the district court acted within its wide discretion by imposing

reasonable limits on Shelley and his co-defendant’s cross-examinations of the CI

and undercover detective, and Shelley has failed to show that these limitations

denied him his right to present a defense.

                                         III.

      Next, Shelley argues that the district court erred in denying his motion for a

new trial based on newly-discovered text messages between Shelley and the CI.

Moreover, Shelley argues that the government’s failure to turn over these messages

constituted a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963).

      We review the district court’s denial of a motion for new trial for abuse of

discretion. United States v. Brester, 786 F.3d 1335, 1338 (11th Cir. 2015). We

review alleged Brady violations de novo. Id. The burden to show a Brady

violation lies with the defendant, not the government. See United States v. Vallejo,

297 F.3d 1154, 1164 (11th Cir. 2002).

      Federal Rule of Criminal Procedure 33(a) provides that, upon the

defendant’s motion, the court may vacate any judgment and grant a new trial if the

interest of justice so requires. FED. R. CRIM. P. 33(a). Motions for a new trial are


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highly disfavored, and district courts should exercise caution in granting a new trial

based on newly discovered evidence. United States v. Jernigan, 341 F.3d 1273,

1287 (11th Cir. 2003). To obtain a new trial based on newly discovered evidence,

a defendant must show that: (1) the evidence was discovered after trial; (2) the

defendant’s failure to discover the evidence was not due to a lack of due diligence;

(3) the evidence is not merely cumulative or impeaching; (4) the evidence is

material to issues before the court; and (5) the evidence is such that a new trial

would probably produce a different result. Id. The failure to satisfy any one of

these elements is fatal to a motion for a new trial. United States v. Thompson, 422

F.3d 1285, 1294 (11th Cir. 2005).

      To obtain a new trial under Brady v. Maryland, the defendant must prove:

(1) the government possessed evidence favorable to the defendant; (2) the

defendant did not possess the evidence and could not have obtained it with any

reasonable diligence; (3) the prosecution suppressed the favorable evidence; and

(4) had the evidence been disclosed to the defendant, there is a reasonable

probability that the outcome would have been different. Vallejo, 297 F.3d at 1164.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome. United States v. Bagley, 473 U.S. 667, 682 (1985).

      The district court here did not abuse its discretion by denying Shelley’s

motion for a new trial because the newly-discovered text messages were (1) not


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diligently obtained and (2) immaterial, both of which constitute independent

grounds for the denial of Shelley’s motion. See Jernigan, 341 F.3d at 1287;

Brester, 786 F.3d at 1338; Thompson, 422 F.3d at 1294.

      First, the newly-discovered text messages were not diligently obtained.

Shelley, as a participant in the text messages, knew about their existence before

and during trial, yet made no effort to obtain the messages by subpoenaing his or

the CI’s phone records, or by attempting to access the messages at an earlier time.

Additionally, the newly-discovered text messages are immaterial and do not

undermine confidence in the trial’s outcome to warrant a Brady violation. Shelley

argues that the newly-discovered text messages support his theory that his

discussions with the CI were discussions related to a car transaction, not

discussions related to the purchase of cocaine. Even if the newly-discovered text

messages could convince the jury that Shelley went to the agreed-upon location for

a car-related transaction, the fact remains that upon arrival at the location he

examined and handled the cocaine, tested it by rubbing it into his gums, and

retrieved the money from his vehicle to purchase the cocaine; all of which was

captured on video and supported by eyewitness testimony. The newly-discovered

text messages are therefore immaterial because Shelley unequivocally attempted to

purchase cocaine once he arrived at the agreed-upon location. Accordingly, the




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district court did not abuse its discretion in denying Shelley’s motion for a new

trial based on the newly-discovered text messages.

                                           IV.

      Shelley argues that the district court procedurally erred in calculating his

guideline range by (1) holding him accountable for four kilograms of cocaine when

he only agreed to purchase two kilograms, and (2) imposing a two-level

enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm because there

is no evidence that he possessed a firearm and he cannot be held accountable for a

co-conspirator’s firearm possession.

      We review the procedural reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In

determining procedural reasonableness, we review purely legal questions de novo,

a district court’s factual findings for clear error, and a district court’s application of

the Sentencing Guidelines to the facts with due deference. United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1136–37 (11th Cir. 2004).

      We review procedural sentencing issues for plain error when there was no

objection in the district court. United States v. Vandergrift, 754 F.3d 1303, 1307

(11th Cir. 2014). Under plain error review, a party must show (1) that an error

occurred, (2) the error was plain, and (3) the error affected the party’s substantial

rights. Id. “If all three conditions are met, [this Court] then decides whether the


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error seriously affected the fairness . . . of the judicial proceeding.” Id. “Where

the 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.” United States v. Hesser, 800 F.3d 1310, 1325 (11th

Cir. 2015) (citing United States v. Lejarde-Rada, 319 F.2d 1288, 1291 (11th Cir.

2003) (per curiam)).

      In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a significant procedural error, such as failing to calculate

or improperly calculating the Guidelines range, treating the Guidelines as

mandatory, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range. Gall, 552 U.S. at 51.

      To determine the quantity of drugs attributable to a defendant for sentencing

purposes, the sentencing court should make findings of fact. United States v. Agis-

Meza, 99 F.3d 1052, 1054–55 (11th Cir. 1996). When the defendant objects to a

factual finding that is to be used as a basis for sentencing, the government bears the

burden to establish the disputed fact—that is, the quantity of drugs attributed to the

defendant—by a preponderance of the evidence. Id. at 1055. A district court’s

determination of drug quantity used to establish a defendant’s base offense level is




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reviewed for clear error. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.

2000).

      When the amount of drugs seized does not reflect the scale of the offense,

the court shall approximate the quantity of the controlled substance. U.S.S.G.

§ 2D1.1, comment. (n.5). In an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled substance shall be used to

determine the offense level unless the defendant establishes that he did not intend

to purchase, or was not reasonably capable of purchasing, the agreed-upon quantity

of the controlled substance. Id. So long as the district court’s decision is plausible

on the record, this Court will not reverse a drug quantity finding under clear error

review. See, e.g., United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).

      The offense level for a drug offense is increased by two levels if “a

dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).

The commentary explains that “[t]he adjustment should be applied if the weapon

was present, unless it was clearly improbable that the weapon was connected with

the offense.” Id., comment. (n.11(A)).

      In United States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995), this Court

explained that § 2D1.1(b)(1) requires the government to show by a preponderance

of the evidence that the firearm was present at the site of the charged conduct.

Once this showing is made, the evidentiary burden shifts to the defendant to show


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that a connection between the firearm and the offense is clearly improbable. Id. A

defendant’s failure to produce such evidence permits a district court to apply such

an enhancement without committing clear error. See id. at 63–64. Acquittal of a

firearm possession charge does not preclude enhancement under this section. See

United States v. Lynch, 934 F.2d 1226, 1234 n.8 (11th Cir. 1991).

      The district court properly calculated Shelley’s guideline range because it

did not err in attributing four kilograms of cocaine to Shelley or applying a two-

level firearm possession enhancement. First, the record amply supports the district

court’s four kilogram finding, which this Court can only set aside if Shelley

demonstrates clear error. See Simpson, 228 F.3d at 1298. The district court did not

clearly err in attributing four kilograms of cocaine to Shelley as his recorded

statements to the CI demonstrated his intent to purchase four kilograms. See

U.S.S.G § 2D1.1, comment. (n.5). Shelley initially discussed purchasing four

kilograms of cocaine from the CI, but then restructured the deal to purchase two

kilograms at the outset and purchase the other two kilograms if the cocaine was of

sufficient quality. Shelley went on to state to the CI that he could pick up the

additional two kilograms the next day. Based upon these conversations, the district

court had grounds to find, by a preponderance of the evidence, that Shelley’s

relevant conduct included a four, not merely two, kilogram deal. The commentary

of § 2D1.1 further supports the district court’s four kilogram finding, as “the


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agreed-upon quantity of the controlled substance would more accurately reflect the

scale of the offense because the amount actually delivered is controlled by the

government, not the defendant.” U.S.S.G. § 2D1.1, comment. (n.5). Thus,

although the CI only brought two kilograms of cocaine to the purchase site,

Shelley’s recorded statements made to the CI clearly indicate his intent to purchase

the additional two kilograms the next day. Shelley failed to establish that he did

not intend to purchase the additional two kilograms of cocaine. See id. Nor has

Shelley established that he was not reasonably capable of purchasing the additional

two kilograms, as his statements indicate that he could sell the first two kilograms

in a single day and use those profits to purchase the next two kilograms. See id.

Accordingly, the district court did not clearly err in attributing four kilograms of

cocaine to Shelley, as the district court’s finding was plausible on the record. See

McPhee, 336 F.3d 1275.

      With respect to Shelley’s claim that the district court erred in applying a

two-level enhancement for firearm possession under § 2D1.1(b)(1), Shelley failed

to object to this enhancement before the district court, and we thus review for plain

error. See Vandergrift, 754 F.3d at 1307. The district court did not plainly err in

applying the two-level enhancement because the government offered evidence that

Shelley possessed a firearm during the drug transaction, including Shelley’s

post-Miranda statement to law enforcement acknowledging that law enforcement


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found a firearm hidden in his waistband at the time of his arrest. See Hall, 46 F.3d

at 63. Shelley failed to provide evidence that a connection between the firearm and

his offense was clearly improbable. See id. at 64 (“If a weapon was present, the

enhancement applies unless a connection was clearly improbable.”). Moreover,

Shelley has not provided any precedent from the Supreme Court or this Court

showing that the district court plainly erred in applying the enhancement. See

Hesser, 800 F.3d at 1325 (“Where the 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.”).

                                           V.

      Lastly, Shelley argues that his 240-month sentence is substantively

unreasonable because (1) the sentence was not supported by relevant sentencing

factors, (2) the district court failed to use his guideline range as a benchmark, and

(3) the district court failed to provide sufficiently compelling reasons to justify its

upward variance.

      We review the substantive reasonableness of a sentence for abuse of

discretion. Gall, 552 U.S. at 51. The party who challenges the sentence bears the

burden to show 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).




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      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. United States. v. Irey, 612

F.3d 1160, 1196 (11th Cir. 2010) (en banc); 18 U.S.C. § 3553(a)(2). The district

court must also consider the nature and circumstances of the offense and the

history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1).

      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Langston, 590 F.3d 1226, 1237

(11th Cir. 2009). This Court examines the totality of the circumstances in

reviewing the substantive reasonableness of a sentence, but due deference must be

given to the district court’s decision that the § 3553(a) factors, as a whole, justify

the extent of the variance. United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir.

2014). We will only remand for resentencing when 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. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008). A district court can abuse its discretion,

however, when it (1) fails to consider relevant factors that were due significant


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weight, (2) gives an improper or irrelevant factor significant weight, or (3)

commits a clear error of judgment by balancing the proper factors unreasonably.

Id. at 1192.

      In reviewing the reasonableness of a sentence outside the guideline range,

this Court may take the degree of variance into account and consider the extent of a

deviation from the Guidelines. Gall, 552 U.S. at 47. A major variance should be

supported by a more significant justification than a minor variance, and the

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

Id. at 50. But there is no rigid mathematical formula that uses the percentage of a

departure as the standard for determining the strength of the justifications required

for a specific sentence. Id. at 47. Moreover, a sentence imposed well below the

statutory maximum penalty is an indicator of a reasonable sentence. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that the sentence

was reasonable in part because it was well below the statutory maximum).

      Here, the district court did not abuse its discretion by imposing a 240-month

sentence because the court based its sentence on relevant § 3553(a) sentencing

factors. In imposing Shelley’s sentence, the district court expressly stated that the

sentence was necessary to provide just punishment, deter Shelley’s conduct,

protect the public from Shelley’s future crimes, and promote respect for the law.

See 18 U.S.C. § 3553(a)(2). Further, the district court determined that the nature


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and circumstances of Shelley’s offense supported the variance because attempting

to possess four kilograms of cocaine is a serious offense, especially when bringing

firearms to the transaction. See id. at § 3553(a)(1). Moreover, the fact that

Shelley’s co-defendant received a substantially shorter sentence does not alter the

result. Although one of the § 3553(a) factors does require the court to “avoid

unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), Shelley’s co-defendant

pleaded guilty and accepted responsibility for the offense, which the district court

considered when finding Shelley more culpable than his co-defendant. This is

especially true when Shelley’s co-defendant was only participating in a drug

transaction that Shelley helped instigate and facilitate. Accordingly, Shelley has

not shown that his and his co-defendant’s situations are similar enough that the

differences between their sentences are unwarranted. See United States v.

Williams, 526 F.3d 1312, 1323 (11th Cir. 2008); see also 18 U.S.C. § 3553(a)(6).

Lastly, Shelley’s 240-month sentence was well below his statutory maximum

sentence of 40-years’ imprisonment, which indicates, in part, that the district court

imposed a reasonable sentence. See Gonzalez, 550 F.3d at 1324.

      Contrary to Shelley’s argument that the district court did not provide

adequate reasons for imposing the 240-month sentence, the district court expressly

stated that it considered the § 3553(a) factors and even listed some of the factors

and applied them to Shelley’s case. The district court did not abuse its discretion


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in imposing a 240-month sentence as the court relied on sufficiently compelling

reasons to justify its upward variance. Due deference must be given to the district

court’s decision that the § 3553(a) factors justify the extent of the variance, Hayes,

762 F.3d at 1307, and we are without a definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors to

warrant a remand for resentencing, Pugh, 515 F.3d at 1191. Shelley has thus failed

to show that the district court imposed a substantively unreasonable sentence.

      Accordingly, we affirm.

      AFFIRMED.




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