United States v. Keith Pharms

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 5, 2026
• Docket: 24-14191
• Status: Unpublished

Opinion

USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 1 of 17

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-14191 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

KEITH PHARMS, a.k.a. B-Boy, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:23-cr-00004-JPB-JSA-2 ____________________

Before JORDAN, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: A jury convicted Keith Pharms of five criminal charges aris- ing from his involvement in a shooting at a federal officer in the USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 2 of 17

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aftermath of a car theft and his subsequent conduct while in cus- tody. He now appeals his 192-month sentence, arguing that it vio- lates the Fifth and Sixth Amendments and is procedurally unrea- sonable because it is based on clearly erroneous facts. For the rea- sons which follow, we affirm. I Testimony at Mr. Pharms’ trial established the following course of events. On February 24, 2022, Mr. Pharms and two others, Jokava Harris and Blake Beard, drove a black Chevrolet SS (the “Chevy”) to an apartment complex parking garage where they stopped next to an orange Dodge Charger Hellcat (the “Charger”). Mr. Harris broke into the Charger and drove away. Mr. Pharms and Mr. Beard followed in the Chevy. An Atlanta Police Department (“APD”) Sergeant and FBI Task Force Officer, Will Johnson, was on patrol surveilling for stolen cars and believed the Chevy was suspected to be involved in the thefts, so he followed it. As he was following, Officer Johnson heard two separate rounds of gunfire; in the second round, his vehicle was struck, and a bullet narrowly missed him. Officer Johnson reported the event to dispatch, and after a pursuit, APD officers were able to disable the tires on the Charger, but the Chevy got away. The next day, the South Fulton Police Department found the Chevy, and APD officers retrieved shell casings at the location of the shooting. Mr. Pharms and Mr. Harris were arrested on state USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 3 of 17

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charges about a month later, and they and Mr. Beard were ulti- mately connected with the car theft and shooting. Mr. Pharms was charged in a superseding federal indictment with one count of assault on a federal officer using a deadly and dangerous weapon, in violation of 18 U.S.C. §§ 111(a)(1) & (b); one count of using a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & (iii); one count of possession of a fire- arm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); one count of possession of cell phones and other electronic devices while in prison, in violation of 18 U.S.C. §§ 1791(a)(2) & (d)(1)(F); and one count of possessing, while in prison, a prohibited object designed to facilitate escape, in violation of 18 U.S.C. §§ 1791(a)(2) & (d)(1)(B). Mr. Pharms proceeded to trial. At his trial, Mr. Beard testi- fied for the government, as did Avery Hardy, a cellmate of Mr. Pharms’ while he was in custody. Mr. Beard testified that after Mr. Harris took the Charger, he was driving the Chevy, and, when they noticed a vehicle trailing them, Mr. Pharms fired shots at the vehi- cle following them. Corroborating that testimony, Mr. Hardy tes- tified that Mr. Pharms told him he had shot at the vehicle following them after the theft and that he had later given the gun he used to Mr. Harris, the third person involved in the car theft. The government also presented social media evidence de- picting Mr. Pharms with a gun resembling the one matching the shell casings recovered from the scene. And it presented video ev- idence of the Chevy leaving the parking garage, in which the USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 4 of 17

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passenger was wearing clothes consistent with what Mr. Pharms was wearing on that day. On appeal, Mr. Pharms denies that the evidence showed he discharged a firearm during the offense. Mr. Pharms was convicted on all five counts. However, by a special interrogatory, the jury was asked, “As to Count 2, was the firearm discharged?” The jury checked the “no” box. After the trial, a probation officer prepared Mr. Pharms’ presentence investigation report (“PSR”), which calculated the rec- ommended sentencing range under the United States Sentencing Guidelines. The PSR grouped Counts 1 and 3 pursuant to U.S.S.G. § 3D1.2(c) into Group A, and Counts 4 and 5 pursuant to § 3D1.2(b) into Group B. For Group A, the PSR calculated an offense level of 22, con- sisting of the greater of the adjusted offense levels of Counts 1 and 3, which reflected: (1) a base offense level of 20 for Count 3; (2) no enhancement pursuant to § 2K2.1(b)(6)(b), which permits an in- crease in the offense level by four if a firearm was used in connec- tion with another felony offense unless, according to the probation officer’s reading of § 2K2.4 Note 4, a sentence on that underlying offense is also being imposed; and (3) a two-level upward adjust- ment for obstruction of justice. The government objected to the probation officer’s denial of the enhancement under § 2K2.1(b)(6)(b), which the district court overruled. Mr. Pharms’ counsel objected to any factual finding in the PSR that Mr. Pharms discharged the firearm during the offense. USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 5 of 17

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For Group B, the PSR calculated an offense level of 13, con- sisting of the greater of the adjusted offense levels of Counts 4 and 5, which reflected: (1) a base offense level of 13 Counts 4 and 5 and (2) no enhancements or adjustments. Based on the adjusted of- fense levels for Groups A and B, the PSR calculated a total offense level of 22, reflecting the greater adjusted offense levels of the two groups and no adjustments for acceptance of responsibility or any other reason. As to Count 2, pursuant to § 2K2.4(b), the PSR calculated the applicable guideline sentence as the minimum term of imprison- ment required by statute: five years, running consecutively with any other term of imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i). The defense and the government both agreed with this calculation. Based on these calculations, the PSR calculated a recom- mended guideline range of 63 to 78 months, plus 60 months con- secutive to all other counts. After the PSR was filed, the government moved for an up- ward variance, in light of the fact that Mr. Pharms shot at the vehi- cle following him, nearly striking Officer Johnson, and pressed its contention that a four-level enhancement should have applied to Count 3. The government therefore submitted that a 204-month total sentence was appropriate. Mr. Pharms filed a memorandum in response, arguing that the four-level enhancement did not apply, that his sentence should reflect credit for his time in state custody, and that the 18 U.S.C. § 3553 factors did not favor a longer sentence for several reasons. Mr. Pharms requested a 114-month sentence. USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 6 of 17

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At the sentencing hearing, the district court denied the four- level enhancement, but concluded that the evidence supported a finding by the preponderance of the evidence that Mr. Pharms had been the shooter. The court reasoned that, “even if we were, as the defense would argue, going to throw out Mr. Hardy’s testi- mony entirely, we still have . . . Mr. Beard’s testimony,” and rea- soned further that “it makes a lot more sense that it be [sic] the passenger who is firing the shots, and especially here, someone who was able to fire a shot accurately enough from one car to an- other to come within inches of hitting the person.” D.E. 172 at 38– 39. Thus, the court found that it was more likely than not that Mr. Pharms had shot at Officer Johnson. The court also noted that the social media evidence and Mr. Hardy’s testimony—even if not en- tirely credited—added weight to its conclusion. Thus, over the defense’s objection, the district court varied upward based on the finding that Mr. Pharms had discharged the weapon at Officer Johnson and sentenced him to 192 months in prison, reduced by his time served in state custody. That sentence fell within the maximum sentence authorized by the jury’s verdict because Mr. Pharms’ conviction for assault on a federal officer car- ried at 240-month statutory maximum, but the court noted that the sentence would have been lower had it not found that Mr. Pharms was the shooter. Mr. Pharms now contends that this sentence is both uncon- stitutional and procedurally unreasonable. II USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 7 of 17

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We review constitutional challenges to a sentence de novo. See United States v. Pope, 461 F.3d 1331, 1333 (11th Cir. 2006). We review the procedural reasonableness of a sentence for abuse of discretion. See United States v. Gyetvay, 149 F.4th 1213, 1239 (11th Cir. 2025). And we review factual findings for clear error. See United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015). III Mr. Pharms first contends that the district court violated the Sixth Amendment when it enhanced his sentence based on a find- ing that he committed conduct of which the jury acquitted him— namely, that he shot at Officer Johnson. He argues that because the Sixth Amendment, in conjunction with the Due Process Clause, requires that each element of a crime be proven to the jury beyond a reasonable doubt, enhancement of a sentence based upon acquitted conduct violates the Sixth Amendment right to a jury trial. The government asserts that this argument is foreclosed by our precedents, namely United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015), and United States v. Rushin, 844 F.3d 933 (11th Cir. 2016), as well as Supreme Court precedent in United States v. Watts, 519 U.S. 148 (1997). We agree with the government. We have long permitted sentencing courts to take into ac- count acquitted conduct proven by a preponderance of the evi- dence. See e.g., United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006). Sentencing enhancements on the basis of such a finding “do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 8 of 17

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committed the crime of conviction.” Id. (quoting Watts, 519 U.S. at 154). Thus, a host of cases from this Court have upheld, over Sixth Amendment challenges, sentence enhancements that were based on facts or conduct for which a defendant was acquitted but which the sentencing court found established by a preponderance of the evidence. See, e.g., United States v. Duncan, 400 F.3d 1297, 1304–05 (11th Cir. 2005) (affirming sentence based on a fact that had been acquitted by the jury in a special verdict). See also Faust, 456 F.3d at 1348; United States v. Smith, 741 F.3d 1211 (11th Cir. 2013); Rushin, 844 F.3d at 942. For example, in Maddox, we af- firmed the application of a sentencing enhancement under U.S.S.G. § 1B1.3, permitting a district court to consider “all relevant con- duct” in calculating the appropriate sentence that was based on conduct of which the defendant had been acquitted. See 803 F.3d at 1220–1222. And in Faust, we again upheld a sentence enhance- ment based on acquitted conduct where the ultimate sentence fell below the maximum sentence authorized by the jury verdict. See 456 F.3d at 1348. Mr. Pharms resists this conclusion, first arguing that the Su- preme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005), demonstrate that his sentence based on acquitted conduct is un- constitutional. Not so. These cases stand for the proposition that a sentencing court must submit to the jury any question of fact nec- essary to enhance punishment or a sentence above the maximum sentence authorized by the statute and the jury verdict. See USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 9 of 17

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Apprendi, 530 U.S. at 490 (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be sub- mitted to the jury, and proved beyond a reasonable doubt.”); Ring, 536 U.S. at 589 (“Capital defendants . . . are entitled to a jury deter- mination of any fact on which the legislature conditions an increase in their maximum punishment.”); Blakely, 542 U.S. at 301–04 (ap- plying Apprendi to reverse three-year enhancement based on facts not admitted by the defendant or found by the jury); Booker, 543 U.S. at 226–27 (holding that the Sixth Amendment limitation on sentencing enhancements as construed in Blakely applies to the Sen- tencing Guidelines). The Supreme Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” Booker, 543 U.S. at 233 (citing Apprendi, 530 U.S. at 481). Thus, “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination on the facts the judge deems rele- vant.” Id. Here, the jury verdict—convicting Mr. Pharms of assault on a federal officer and use of a deadly weapon—authorized a max- imum statutory penalty of 240 months. Mr. Pharms is not entitled to a jury determination on a fact the sentencing court deemed rel- evant in selecting a sentence (here, 192 months) within the range authorized by statute and the jury’s verdict. Mr. Pharms next points to a recent amendment to U.S.S.G. § 1B1.3, which excludes consideration of acquitted conduct, in cer- tain circumstances, for purposes of the Sentencing Guidelines USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 10 of 17

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calculations: “Relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in fed- eral court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.” § 1B1.3(c) (effective Nov. 1, 2024). The impact of that amendment on our acquitted conduct sentencing precedents is yet to be determined. See United States v. Touray, 151 F.4th 1317, 1332 (11th Cir. 2025) (declining to address the effect of this amendment, which had not yet taken effect at the time of the defendant’s sentencing); United States v. Romeu, 2026 WL 36113, at *3 (11th Cir. Jan. 6, 2026) (explaining that this amend- ment has not been made retroactive). But we have no occasion to question our precedents or those of the Supreme Court in this ap- peal. As two other federal courts of appeals have reasoned, this amendment to the Guidelines does not limit the scope of conduct a sentencing court can consider under § 3553(a), i.e., the sentencing court’s sentencing authority separate from calculating the Guide- line range. See United States v. Ware, 141 F.4th 970, 974 n.2 (8th Cir. 2025) (“[T]he [amended] Guideline [§ 1B1.3(c)] does not prohibit a court from considering acquitted conduct when analyzing the fac- tors from § 3553(a), as the district court did here.”); United States v. Ralston, 110 F.4th 909, 921 (6th Cir. 2024) (“[T]he ‘amendment pre- cludes consideration of acquitted conduct in the context of calculat- ing the [G]uidelines,’ but . . . a court may still consider acquitted con- duct when ‘imposing a sentence.’”) (quoting Vice Chair Claire Murray, Remarks at United States Sentencing Commission Public USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 11 of 17

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Meeting, Apr. 17, 2024). Thus, the amendment does not affect the district court’s discretionary application of the § 3553 factors here. In sum, our precedents confirm that the district court did not act unconstitutionally in varying upward on the basis of conduct of which Mr. Pharms was acquitted under the higher beyond-a-rea- sonable-doubt standard. See Faust, 456 F.3d at 1348 (“[U]nder an advisory Guidelines scheme, courts can continue to consider rele- vant acquitted conduct so long as the facts underlying the conduct are proved by a preponderance of the evidence and the sentence imposed does not exceed the maximum sentence authorized by the jury verdict.”). The remaining authorities to which Mr. Pharms refers us—all nonbinding, non-majority decisions—do not per- suade us otherwise. 1 Mr. Pharms was sentenced to a term of imprisonment within the maximum sentence authorized by the jury’s verdict, and the use of acquitted conduct to vary upward within that range did not violate the Sixth Amendment. IV Mr. Pharms next contends that the same variance—an en- hancement of his sentence based on conduct for which he was ac- quitted by the jury—violated the Due Process Clause of the Fifth

1 We acknowledge the growing number of opinions, to which Mr. Pharms

refers, criticizing the use of acquitted conduct at sentencing. But until either this Court sitting en banc or the Supreme Court abrogates our existing prece- dents, we are bound to follow them. See Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy County, 59 F.4th 1158, 1164 (11th Cir. 2023). USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 12 of 17

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Amendment. Mr. Pharms argues that In re Winship, 397 U.S. 358 (1970), establishes that due process protects him from conviction except upon proof beyond a reasonable doubt of every element of the crime and that enhancement of a sentence based upon facts found by a preponderance of the evidence violates that constitu- tional protection. And he contends that reliance on acquitted con- duct increases the risk of inaccurate sentencing and violates the fair notice requirement. Like his Sixth Amendment argument, Mr. Pharms’ Fifth Amendment due process arguments are foreclosed by our prece- dents. See Touray, 151 F.4th at 1332 (“So long as the sentence im- posed by the district court does not ‘exceed the sentence author- ized by the jury verdict’ and is supported by a preponderance of the evidence, it does not violate the Fifth or Sixth Amendments to con- sider acquitted conduct at sentencing.”) (quoting United States v. Culver, 598 F.3d 740, 752–53 (11th Cir. 2010). See also Culver, 598 F.3d at 752–53 (holding that a sentence based on acquitted conduct that is within the maximum authorized by the jury verdict does not violate the due process clause of the Fifth Amendment); Maddox, 803 F.3d at 1221 n.2 (citing United States v. Clay, 483 F.3d 739, 744 (11th Cir. 2007)). In Clay, for example, we upheld a sentencing enhancement over a due process challenge similar to the one Mr. Pharms brings here. See 483 F.3d at 744. There, the defendant, Clay, was indicted for his participation in a conspiracy to manufacture and possess with intent to distribute methamphetamine and for possession of USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 13 of 17

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pseudoephedrine, but the jury acquitted him of the conspiracy charges, convicting him only of possession of pseudoephedrine. See id. at 742. Nonetheless, the sentencing court found by a pre- ponderance of the evidence that Clay had participated in the man- ufacture of 1.5 kilograms of methamphetamine and enhanced his sentence accordingly. Id. While acknowledging the possibility that a due process violation could occur in “extreme circumstances,” we affirmed the enhanced sentence over Clay’s due process argu- ment, reasoning that it was not extraordinary and was within the range authorized by the jury’s verdict. See id. at 744. So too here, the district court’s imposition of an enhanced sentence—neither extraordinary nor exceeding the maximum authorized by the jury verdict—did not violate due process. Mr. Pharms’ arguments about fair notice and inaccuracy fare no better. Mr. Pharms relies on Townsend v. Burke, 334 U.S. 736, 740–41 (1948), but in that case a defendant, without the benefit of counsel, was sentenced on “a foundation so extensively and mate- rially false” as to render “the proceedings lacking in due process.” Id. at 741. The Supreme Court made clear that it was “not reaching th[e] result because of [the] petitioner’s allegation that his sentence was unduly severe.” Id. Here, as we explain below, the district court’s factual findings in support of the sentencing enhancements were supported by a preponderance of the evidence, a far cry from established to be “materially false.” Townsend is inapposite. USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 14 of 17

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We therefore hold, consistent with our precedents, that Mr. Pharms’ sentence was not imposed in violation of the Due Process Clause of the Fifth Amendment. V Lastly, Mr. Pharms contends that his sentence is procedur- ally unreasonable because it is based upon clearly erroneous facts. “For a finding to be clearly erroneous, this Court must be left with a definite and firm conviction that a mistake has been committed.” United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). Based on the evidence presented at trial and referred to in the sen- tencing hearing, we do not have such a conviction. Two principles guide our decision here. First, the district court may make reasonable inferences from the evidence pre- sented at trial and the sentencing hearing. See United States v. Green, 981 F.3d 945, 953 (11th Cir. 2020) (“The district court may base fac- tual findings on evidence presented at trial . . . or evidence pre- sented at the sentencing hearing, and it may make reasonable in- ferences from the evidence.”) (citations omitted). And second, “[w]here a fact pattern gives rise to two reasonable and different constructions, ‘the factfinder’s choice between them cannot be clearly erroneous.’” Almedina, 686 F.3d at 1315 (quoting United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006)). There was ample evidence to support the district court’s fac- tual finding that Mr. Pharms was the shooter. Video evidence showed that Mr. Pharms was the passenger in the Chevy from which a firearm was discharged, while Mr. Beard was the driver. It USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 15 of 17

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was a reasonable inference for the district court to draw, as it did, from that evidence that Mr. Pharms was the more likely to have discharged the firearm. That inference is further supported by tes- timony from Mr. Pharms’ cellmate, Mr. Hardy, who testified that Mr. Pharms told him as much, and, more critically, by Mr. Beard who testified that he was driving the car and that Mr. Pharms fired the shots. In light of this evidence, we cannot say that the district court’s finding was clearly erroneous. Even if it were equally rea- sonable to infer that Mr. Beard discharged the firearm, we still could not say that the district court’s factual finding constituted re- versible error. See Almedina, 686 F.3d at 1315. Mr. Pharms nevertheless asserts that the district court’s find- ing that he discharged the firearm in the course of the relevant in- cident was clearly erroneous because it (1) disregarded the jury’s conclusion on that issue; (2) was based on Officer Johnson’s testi- mony, but Officer Johnson did not see who was shooting from the other car; (3) was inconsistent with the fact that the bullet in Officer Johnson’s car matched a gun found at a co-defendant’s home; and (4) was based on testimony of “convicted criminals who were plainly incentivized to testify in a way which could potentially lessen their sentences.” See Appellant’s Brief at 31. None of these arguments establish clear error. First, the standard of proof for a fact determined at sentenc- ing is preponderance of the evidence, on which the government bears the burden. See Maddox, 803 F.3d at 1220 (citing Faust, 456 F.3d at 1347, 1348). Therefore, the jury’s response to the special USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 16 of 17

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interrogatory in the negative does not establish that the district court clearly erred in finding that the government did establish that Mr. Pharms discharged the firearm by the lower preponderance of the evidence standard. See id. at 1221 (“[A]n acquittal does not mean that the defendant is innocent of any particular aspect of the charged criminal conduct; it simply means that the Government failed to prove the defendant guilty beyond a reasonable doubt.”) (citation omitted). See also Watts, 519 U.S. at 155 (“An acquittal is not a finding of any fact. An acquittal can only be an acknowledge- ment that the government failed to prove an essential element of the offense beyond a reasonable doubt.”) (quotations and citations omitted). Second, with or without Officer Johnson’s personal knowledge of who discharged the firearm, the district court found Mr. Beard to be credible, and he testified that Mr. Pharms was the shooter. Mr. Pharms contends that Mr. Hardy and Mr. Beard were both unreliable because they are convicted criminals who are in- centivized to testify in a way which could lessen their sentences, but we afford substantial deference to the district court’s credibility determinations. See Maddox, 803 F.3d at 1220. Thus, “[w]e will accept a factfinder’s credibility determination unless the proffered evidence is ‘contrary to the laws of nature’ or is ‘so inconsistent or improbable on its face that no reasonable factfinder could accept it.’” Id. (quoting United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)). A criminal history or a motive to lie does not establish that Mr. Beard’s testimony was incredible. See id. (“The fact that a witness is of dubious character does not, by itself, render USCA11 Case: 24-14191 Document: 43-1 Date Filed: 02/05/2026 Page: 17 of 17

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his testimony incredible.” (citing United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009)). We therefore decline Mr. Pharms’ in- vitation to ignore the district court’s credibility determination as to Mr. Beard. That testimony, in addition to the video evidence and reasonable inferences drawn therefrom, adequately supports the district court’s factual finding by the preponderance of the evi- dence. Because the district court’s factual finding was not clearly er- roneous and Mr. Pharms does not argue his sentence was proce- durally unreasonable for any other reason, the district court did not abuse its discretion in imposing the sentence it did. VII We hold that Mr. Pharms’ sentence is neither constitution- ally infirm nor procedurally unreasonable. AFFIRMED.