              Case: 16-16313     Date Filed: 10/06/2017    Page: 1 of 7


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          __________________________

                                 No. 16-16313
                             Non-Argument Calendar
                          __________________________

                   D.C. Docket No. 3:15-cr-00019-TCB-RGV-4

UNITED STATES OF AMERICA,

                                                                  Plaintiff - Appellee,

                                        versus

KENNY GROVER,

                                                               Defendant - Appellant.

                          __________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         __________________________

                                  (October 6, 2017)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Kenny Grover appeals an 84-month sentence. Grover received his sentence

after pleading guilty to three counts of conspiracy to attempt to distribute
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methamphetamine and three counts of extortion under color of official right. 21

U.S.C. §841(a), 18 U.S.C. 1951. Grover’s sentence was a downward variance

from the Guideline range. On appeal, he advances two arguments. First, he argues

that he should have received a sentence reduction based on the government’s

alleged sentencing factor manipulation. Second, he argues that the District

Court clearly erred in applying a role enhancement under U.S.S.G. § 3.1B1.1(c) to

his sentencing calculation. The first contention we dispose of on the facts. The

second we need not decide on the merits because any Guideline enhancement

errors were harmless and the sentence was substantively reasonable.

                                          I.

      We review a district court’s Guideline findings of fact for clear error and

will disturb them only if a review of all the evidence leaves this Court with “a

definite and firm conviction that a mistake has been committed.” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The district court’s

factual findings in support of a sentencing enhancement must be affirmed if

plausible in light of the record as a whole. United States v. Ladson, 643 F.3d 1335,

1341 (11th Cir. 2011). The reasonableness of a final sentence is reviewed only for

abuse of discretion. United States v. Decampo, 573 F.3d 1091, 1096 (11th Cir.

2009). This Court reviews de novo the district court’s interpretation and

application of the Guidelines. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.

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2002). Harmless error review applies to a district court’s Guideline calculations if

the court would have imposed the same sentence after considering the 18 U.S.C. §

3553(a) factors, regardless of any potential Guideline error. United States v.

Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006).

                                          A.

      The District Court did not err in declining to reduce Grover’s total sentence

under the doctrine of sentencing factor manipulation.

      Sentencing factor manipulation occurs when the government manipulates a

sting operation to increase a defendant’s potential sentence. United States v. Haile,

685 F.3d 1211, 1223 (11th Cir. 2012). This doctrine “asks whether the

manipulation inherent in a sting operation, even if insufficiently oppressive to

support an entrapment defense, or due process claim, must sometimes be filtered

out of the sentencing calculus.” United States v. Lange, 862 F.3d 1290, 1296 (11th

Cir. 2017) (citation omitted). “[T]o bring sting operations within the ambit of

sentencing factor manipulation, the government must engage in extraordinary

misconduct.” United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007).

The standard a defendant must meet is therefore “high.” Id. A finding of

sentencing factor manipulation “would simply reduce the sentence applied to a

defendant’s conduct.” Id. at 1270. Although this Court recognizes sentencing

factor manipulation as a potential means of sentence reduction, we have never

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applied it to reduce a sentence nor otherwise countenanced the doctrine as a

legitimate defense. See Lange, 862 F.3d at 1296.

      Grover argues the government wrongfully manipulated his sentencing

factors by unnecessarily increasing both the quantity of methamphetamine used in

the sting and the number of transactions in which he accepted bribes, noting the

government’s control over all facets of the case. This argument fails. Not only

have we never found government conduct “sufficiently reprehensible” to reduce a

sentence based on sentencing factor manipulation, we have uniformly rejected such

claims under similar circumstances.     See, e.g., Ciszkowski, 492 F.3d at 1271

(noting that “[g]overnment-created reverse sting operations are recognized and

useful methods of law enforcement investigation” and finding that government’s

selection of firearm with silencer was not manipulation even though it resulted in

Guideline enhancement); United States v. Bohannon, 476 F.3d 1246, 1262 (11th

Cir. 2007) (government’s selection of “minor” victim for sting operation was not

manipulation despite resulting enhancement); United States v. Sanchez, 138 F.3d

1410, 1414 (11th Cir. 1998) (government’s selection of a large quantity of drugs

was insufficient to find manipulation); United States v. Govan, 293 F.3d 1248,

1251 (11th Cir. 2002) (government’s decision to make four purchases instead of

one, even when intended to strengthen the case for conviction, was not

manipulation); Lange, 862 F.3d at 1296–97 (conducting five transactions rather

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than one was not outrageous in light of the government’s interest in removing

firearms from the streets). This precedent presents a formidable obstacle Grover

cannot overcome. This is especially so when, as Special Agent Hosty testified, the

government had a legitimate interest in identifying all corrupt corrections officers

through repeated operations. Cf. Lange, 862 F.3d at 1297.

       The defendant cannot show that the government’s actions were

extraordinary enough to warrant a sentence reduction based on factor

manipulation. The District Court therefore did not err, and accordingly we affirm

in this respect.

                                          B.

       We need not reach the question of whether the District Court properly

enhanced Grover’s offense level for playing a leadership role, because any error in

Guideline application would have been harmless.

       As stated above, we review the imposition of an aggravating role

enhancement for clear error. See Rodriguez-Lopez, 363 F.3d at 1137. However,

“it is not necessary to decide guidelines issues or remand cases for new sentence

proceedings where the guidelines error, if any, did not affect the sentence.” Keene,

470 F.3d at 1349. Such an error is harmless if, assuming the Guidelines issue had

been decided in the defendant’s favor, (1) the district court would have imposed

the same sentence, and (2) the sentence imposed was reasonable in light of the §

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3553(a) factors. Because the District Court stated at sentencing that it “would have

sentenced this defendant to 84 months regardless of how [it] ruled on the

objections in this case[,]” the only remaining issue is whether that sentence is

reasonable.

       Our review of a sentence for reasonableness is “deferential,” and places the

burden on the defendant to prove his sentence unreasonable in light of the record

and § 3553(a). Keene, 470 F.3d at 1350 (citation omitted). Although we are not

required to presume a sentence is reasonable because it falls within the Guideline

range, we normally expect a sentence within that range to be reasonable. See Rita

v. United States, 551 U.S. 338, 347, 127 S. Ct. 2456, 2462–63 (2007). We

consider the totality of the circumstances, including any variance from the

Guideline range. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)

(citing Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007)).

       Here, Grover’s 84-month sentence constitutes an 84-month downward

variance below the low end of the Guideline range. Because of this downward

variance, and because we find the sentence otherwise reasonable under all the

circumstances,1 it cannot be said the District Court clearly erred. We therefore



       1
         The Appellee puts it well: “At the time of his offenses, Grover was a [Georgia
Department of Corrections (“GDOC”)] correctional officer who accepted multiple bribe
payments from a purported drug trafficker in return for his assistance with and protection of the
delivery of eight kilograms of what he believed to be methamphetamine, all while wearing his
GDOC uniform . . . . In short, Grover sold his badge to a drug dealer for personal profit.”
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affirm in this respect without addressing the merits of the Guideline enhancement

challenge.

   For the above reasons, the District Court’s sentence is AFFIRMED.




Accordingly, the District Court stressed that the 84-month sentence was “necessary” and that
“[t]his was a very serious crime, and it deserves serious time.”
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