United States v. Julius Andrew Reason

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 20, 2018
• Docket: 17-11132
• Status: Unpublished

Opinion

Case: 17-11132 Date Filed: 02/20/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11132 Non-Argument Calendar ________________________

D.C. Docket No. 2:16-cr-14002-RLR-1

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JULIUS ANDREW REASON,

Defendant–Appellant.

________________________

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

(February 20, 2018)

Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM: Case: 17-11132 Date Filed: 02/20/2018 Page: 2 of 9

Julius Andrew Reason appeals his 235-month sentence, imposed after his

guilty plea, for conspiracy to import dibutylone HCI (“dibutylone”) into the United

States, in violation of 21 U.S.C. §§ 952(a) and 963, and conspiracy to possess with

intent to manufacture and distribute dibutylone, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Reason’s sentence is more than ten years below the lower

end of the applicable Sentencing Guidelines range. He argues that the District

Court: (1) procedurally erred by misapplying U.S.S.G. § 2D1.1 cmt. n.6

(“Application Note 6”) and clearly erred by finding that, for purposes of

calculating his offense level, MDMA and MDEA were the substances “most

closely related” to dibutylone and ethylone, respectively; 1 (2) erred by applying a

four-point enhancement, pursuant to U.S.S.G. § 3B1.1(a), based on its finding that

Reason was an organizer or leader of a criminal activity that involved five or more

participants or that was otherwise extensive; (3) erred by applying a two-point

enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), based on its finding that Reason

possessed a firearm; and (4) erred by imposing an otherwise procedurally and

substantively unreasonable sentence.

We disagree with each of Reason’s arguments and affirm the District

Court’s sentence.

1 Reason’s total offense level reflects that he was held responsible for, among other substances, 10.34 kg of dibutylone and 9.98 kg of ethylone.

2 Case: 17-11132 Date Filed: 02/20/2018 Page: 3 of 9

I.

Citing Federal Rule of Appellate Procedure 28(i), Reason adopts the

portions of the initial and reply briefs filed by his co-appellant, Venteria Reason,

that argue that the District Court procedurally erred by misapplying Application

Note 6 and that it clearly erred by concluding that dibutylone and ethylone were

most closely related to MDMA and MDEA. Reason adopts a losing position. See

United States v. Reason, No. 17-11134, 2018 WL 388238 (11th Cir. Jan. 12, 2018).

We therefore reject these arguments.

II.

Reason next argues that the District Court erred in applying U.S.S.G.

§ 3B1.1(a)’s four-point aggravating-role enhancement because the criminal activity

to which he was an “organizer or leader”2 did not “involve[] five or more

participants” and was not “otherwise extensive.”

A district court’s determination of a defendant’s role in an offense is a

finding of fact that we review for clear error. United States v. Moran, 778 F.3d

942, 979 (11th Cir. 2015). “For a factual finding to be clearly erroneous, we must

be left with a definite and firm conviction that a mistake has been committed.” Id.

The sentencing court’s factual findings for purposes of sentencing can be based on

“evidence heard during trial, undisputed facts in the [presentence investigation

2 Reason does not contest that he was an organizer or leader of criminal activity. 3 Case: 17-11132 Date Filed: 02/20/2018 Page: 4 of 9

report], or evidence presented during the sentencing hearing.” United States v.

Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

Under § 3B1.1(a), a defendant receives a four-level increase in his offense

level if he “was an organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” A “participant” is someone “who is

criminally responsible for the offense, but need not have been convicted.”

U.S.S.G. § 3B1.1 cmt. n.1. A court determines the number of participants by

tallying the number of individuals involved in the relevant conduct for which the

defendant was responsible, including the events surrounding the criminal act.

United States v. Holland, 22 F.3d 1040, 1045–46 (11th Cir. 1994). The defendant

himself is counted in the calculation. Id. at 1045.

The District Court did not clearly err in finding that more than five people

participated in the criminal activity. 3 Reason and his two convicted codefendants

clearly qualify as participants in the criminal activity because they were criminally

responsible for the offense. See U.S.S.G. § 3B1.1 cmt. n.1. Further, the

Government presented ample evidence that at least three others participated in the

criminal activity for which Reason was responsible by, among other things,

distributing and coordinating sales of drugs, collecting drug proceeds, and

3 Because the District Court did not err in finding that the relevant criminal activity involved five or more participants, we do not need to address Reason’s argument that the criminal activity was not “otherwise extensive.” 4 Case: 17-11132 Date Filed: 02/20/2018 Page: 5 of 9

receiving drugs up front without payment. That these other individuals were not

charged and convicted does not preclude them from being § 3B1.1 participants.

See Holland, 22 F.3d at 1045–46; U.S.S.G. § 3B1.1 cmt. n.1. The Court therefore

properly applied § 3B1.1(a)’s four-level enhancement.

III.

Third, Reason contends that the District Court erred in applying a two-point

U.S.S.G. § 2D1.1(b)(1) dangerous-weapon enhancement because he had no “actual

or constructive knowledge of the firearm” found under the passenger seat of his

vehicle after his arrest. Reason adds that the firearm did not contain his DNA or

fingerprints, and that another individual occupied the passenger seat during his

arrest. He also asserts that the Government failed to prove that the firearm was

used in connection with criminal activity.

We review for clear error a district court’s factual findings under

§ 2D1.1(b)(1), and de novo the application of the Guidelines to those facts. United

States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). Sentencing Guideline

§ 2D1.1(b)(1) adds a two-point enhancement if a firearm is possessed in

connection with a conspiracy to possess and distribute drugs. Application Note

11(A) to § 2D1.1 states that the dangerous weapon enhancement “should be

applied if the weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” The firearm enhancement is “to be applied

5 Case: 17-11132 Date Filed: 02/20/2018 Page: 6 of 9

whenever a firearm is possessed during conduct relevant to the offense of

conviction.” United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997).

Relevant conduct includes acts “that were part of the same course of conduct or

common scheme or plan as the offense of conviction.” Id. (quotation omitted).

After the Government has shown that a firearm was present, the evidentiary burden

shifts to the defendant, who must show that a connection between the firearm and

the offense is clearly improbable. United States v. Fields, 408 F.3d 1356, 1359

(11th Cir. 2005).

The District Court did not clearly err in applying the § 2D1.1(b)(1)

enhancement. The Government showed that a firearm was present during the

controlled transfer that culminated in Reason’s arrest and presented substantial

evidence that Reason frequently requested to use his codefendant’s firearm,

possessed firearms, and discussed the locations of various firearms. Reason then

failed to meet the burden of proving that a connection between the firearm and the

offense was “clearly improbable.” See id. at 1359.

IV.

Finally, Reason claims that two additional District Court errors render his

sentence procedurally and substantively unreasonable. Reason first argues that the

Court did not account for his belief that he was importing a “knock off drug” that

was “less potent” than the comparator substances used to calculate his sentence,

6 Case: 17-11132 Date Filed: 02/20/2018 Page: 7 of 9

MDMA and MDEA. As discussed in Reason, 2018 WL 388238 at *5, this

argument fails.4 Second, Reason contends that the Court failed to “sufficiently

discuss” all of the required 18 U.S.C. § 3553(a) factors when issuing his sentence.

We review a sentence’s reasonableness under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). A two-step process guides our review. Id. at 51, 128 S. Ct. at 597. First,

we confirm that the district court committed no significant procedural error, “such

as failing to calculate (or improperly calculating) the Guidelines range, treating the

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

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.” Id. We then consider the substantive reasonableness of the

4 Reason’s co-appellant made a similar argument, rejected in Reason, 2018 WL 388238 at *5, that the equivalence ratios assigned to MDMA and MDEA for purposes of sentencing are unfitting for dibutylone and ethylone, requiring a lower sentence to be issued. Though it is unclear from his brief, Reason appears to have adopted that argument. If he did, then we reject it, as we did before. But Reason’s brief also articulates an ostensibly different argument—that the District Court should have accounted for his belief that he was importing knockoff drugs less potent than MDMA and MDEA. Our logic in Reason also takes care of this claim. See id. Boiled down, Reason, like his co-appellant, merely argues that the equivalence ratios of MDMA and MDEA are too harsh given the differences between those substances and dibutylone and ethylone, the substances Reason was importing. Regardless, the fact remains that the Court properly found that MDMA and MDEA were appropriate comparators. Indeed, following Application Note 6’s requirements, the Court considered the potencies of the substances in making this determination. Nothing in Application Note 6 imposes, as Reason asserts, the further requirement that “sufficient evidence” show that the defendant “knew [the substances he was importing] were the equivalent of and had the same potency as [the Court’s chosen comparator substances].” 7 Case: 17-11132 Date Filed: 02/20/2018 Page: 8 of 9

sentence given totality of the circumstances. Id. The party challenging the

sentence bears the burden of proving the sentence unreasonable in light of the

record and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010).

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

necessary, to comply with the purposes” of § 3553(a). 18 U.S.C. § 3553(a). When

a district court decides that the § 3553(a) factors support a variance, it should

explain “with sufficient justifications” why the variance “is appropriate in a

particular case.” Gall, 552 U.S. at 46, 128 S. Ct. at 594. The court’s justification

must be “compelling enough to support the degree of the variance and complete

enough to allow meaningful appellate review,” but “an extraordinary justification”

is not required. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)

(quotation omitted).

The District Court explained at length the considerations which informed its

235-month sentence, many of which directly implicated the relevant § 3553(a)

factors. There is enough in the record and in the District Court’s explanation of

Reason’s sentence to satisfy us that the Court “considered the parties’ arguments

and ha[d] a reasoned basis for exercising [its] own legal decisionmaking

authority.” See Rita v United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468

(2007). Its sentence was thus procedurally reasonable.

8 Case: 17-11132 Date Filed: 02/20/2018 Page: 9 of 9

The Court’s sentence was also substantively reasonable. Reason’s 235-

month sentence fairly reflects the Court’s consideration of the sentencing factors.

See United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010). The record and

the Court’s explanation at sentencing justify the more than ten-year downward

variance it applied. And that Reason’s sentence is well below the relevant

Guidelines range further diminishes his position that it is substantively

unreasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008). The District Court therefore did not err in imposing Reason’s 235-month

sentence.

V.

For the reasons discussed, the District Court did not err in calculating or

imposing Reason’s 235-month sentence.

AFFIRMED.