[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-16431         ELEVENTH CIRCUIT
                                                    DECEMBER 2, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                         CLERK

                     D. C. Docket No. 08-00315-CR-26-4

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KARRIEM YUSEF BUTLER,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                             (December 2, 2010)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:

     Karriem Yusef Butler appeals the consecutive sentences imposed following
his conviction on two counts of using a communication facility to aid a conspiracy

to possess with intent to distribute, and to distribute, controlled substances, in

violation of 21 U.S.C. § 843(b).

       I. Background

       Butler and numerous others were charged in connection with a large-scale

drug-distribution scheme. Butler was charged with conspiracy to possess with

intent to distribute drugs, in violation of 21 U.S.C. § 846 (Count 1), and three

counts of using a telephone to facilitate that conspiracy, in violation of § 843

(Counts 51 through 53). At the time of his arrest on the federal charges, Butler was

in state custody for drug offenses related to the federal charges.1

       Butler pleaded guilty to two counts of using the telephone to facilitate the

conspiracy (Counts 51 and 52). Under the terms of his plea agreement, Butler

admitted that he used a telephone to facilitate the drug conspiracy. The plea

agreement explained that the statutory maximum sentence under § 843 was four

years’ imprisonment.

       At the change-of-plea hearing, Butler admitted that he had received two

phone calls from co-conspirator Telly Petty asking him to get some cocaine and

materials to cut the drugs. Butler had agreed to supply the cocaine and deliver it to


       1
         Butler was convicted in state court of possession of lidocaine, a violation of the
Georgia Controlled Substance Act.

                                                 2
Petty.

         In determining the advisory sentencing range, the probation officer applied a

base offense level of 28 under U.S.S.G. § 2D1.1(c)(6),2 with a 3-level reduction for

acceptance of responsibility, for a total adjusted offense level of 25. As a career

offender, Butler’s criminal history category was VI, which yielded a guideline

range of 110 to 137 months’ imprisonment. But the consecutive statutory

maximum sentences decreased this range to 96 months.

         Butler objected to the amount of drugs attributed to him, argued that the

offense level should have been 12 under § 4B1.1(b), and opposed consecutive

sentences. He also argued that he was a minor or minimal participant and that his

criminal history category over-represented his prior convictions. The district court

rejected his arguments, adopted the presentence investigation report, and sentenced

Butler to 48 months’ imprisonment on Count 51 and a consecutive 44-month term

of imprisonment on Count 52. The court varied downward slightly from the

statutory maximum in order to avoid a sentencing disparity with one of Butler’s

codefendants. Butler now appeals.

         Butler raises several arguments regarding the reasonableness of his

sentences. First, he argues that the district court procedurally erred by


         2
          The base offense level did not include any of the lidocaine for which Butler had been
arrested on state charges.

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(a) calculating his base offense level as 28 after the court made factual findings

about the specific drug quantity, (b) imposing consecutive sentences, and

(c) denying a reduction for being a minor or minimal participant under U.S.S.G.

§ 3B1.2. Second, Butler argues that his sentence was substantively unreasonable

because the court (a) improperly relied on hearsay testimony and conduct outside

the scope of the facts to which he pleaded guilty, (b) failed to give him credit for

time served, and (c) did not consider factors that would warrant a downward

departure.3 We address each in turn.

        II. Discussion

        We review the reasonableness of a district court’s sentence under a

deferential abuse-of-discretion standard of review. Gall v. United States, 

, 41 (2007).

        A. Procedural reasonableness

        Butler’s sentence is procedurally unreasonable if the district court failed to

calculate (or improperly calculated) the guidelines range, treated the guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed to adequately explain the chosen



        3
          For the first time in his reply brief, Butler argues that the district court’s failure to
consider his limited role rendered his sentence substantively unreasonable. We need not
consider this issue. See United States v. Dicter, 

, 1289 (11th Cir. 1999).

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sentence—including an explanation for any deviation from the guidelines range.

See 

We review a district court’s factual findings related to the imposition

of a sentence for clear error. See United States v. Villarreal, 

, 1357-

58 (11th Cir. 2010) (quotation marks omitted). “A district court’s factual finding is

clearly erroneous when although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.” 

             1. Drug quantity

      The district court may consider all relevant conduct in calculating a

defendant’s offense level. United States v. Hamaker, 

, 1336 (11th

Cir. 2006). Relevant conduct includes conduct for which the defendant was

acquitted, United States v. Duncan, 

, 1304 (11th Cir. 2005), conduct

that is the basis for counts dismissed pursuant to a plea agreement, United States v.

Alston, 895 F.2d 1362,1371-72 (11th Cir. 1990), and uncharged criminal conduct

that occurred outside the statute-of-limitations period, United States v. Scroggins,

, 1214 (11th Cir. 1989). The court may determine the sentence

based on judicial fact-finding of relevant conduct provided that the court’s findings

are by a preponderance of the evidence and the court recognizes that the guidelines

are advisory. United States v. Dean, 

, 854 (11th Cir. 2007).



                                           5
Furthermore, “the district court may base sentencing determinations on reliable

hearsay.” United States v. Baker, 

, 1254 n.68 (11th Cir. 2005).

Credibility determinations are the province of the district court. 

.

       Here, the district court properly determined the drug quantity attributable to

Butler based on a preponderance of the evidence. Petty testified at sentencing that

Butler had assisted him with repackaging two kilograms of cocaine. Moreover,

although Butler pleaded guilty to only two counts of using the telephone to

facilitate a drug conspiracy, there was evidence to connect him with the

distribution of at least two kilograms of cocaine.

       The district court also properly determined the guideline range using a base

offense level of 28, which is the level applicable to two kilograms of cocaine.

Butler argues that his offense level was twelve under § 4B1.1(b)(G)4 because the

statutory maximum for his offense was four years and he was a career offender.

But Butler misunderstands the guideline calculations; § 4B1.1(b)(G) does not

apply if the offense level under that section is less than the otherwise applicable


       4
           Section 4B1.1(b) assigns base offense levels for offenses committed by career
offenders. If the offense level under § 4B1.1(b) is greater than the otherwise applicable offense
level, the court is instructed to apply the offense level from § 4B1.1(b). Offenses such as
Butler’s, which have a statutory maximum sentence of one to five years’ imprisonment, are
assigned an offense level of 12. U.S.S.G. § 4B1.1(b)(G). Here, Butler’s otherwise applicable
offense level was 28.

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offense level. Because Butler’s level under § 2D1.1 was 28, higher than the

offense level under § 4B1.1(b)(G), § 2D1.1 sets the applicable offense level.

             2. Consecutive sentences

       Butler argues that § 5G1.2(d) required the court to impose concurrent

sentences. We disagree. Under § 5G1.2(d),

       If the sentence imposed on the count carrying the highest statutory
       maximum is less than the total punishment, then the sentence imposed
       on one or more of the other counts shall run consecutively, but only to
       the extent necessary to produce a combined sentence equal to the total
       punishment. In all other respects, sentences on all counts shall run
       concurrently, except to the extent otherwise required by law.

U.S.S.G. § 5G1.2(d). The court properly determined the base offense level to be

28. This put Butler’s advisory guideline range at 110 to 137 months’

imprisonment. Because the statutory maximum under § 843 was 48 months’

imprisonment for each count, the guideline range became the statutory maximum

sentence. But the statutory maximum was significantly less than the calculated

advisory guidelines range. Therefore, the imposition of consecutive sentences was

consistent with the dictates of § 5G1.2(d) to produce a sentence equal to the total

punishment as determined by the guideline calculations. The district court did not

err.

             3. Role reduction

       A defendant may receive a two-level reduction in his offense level if he was

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a minimal or minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A

defendant is a minimal participant if his is plainly among the least culpable of

those involved in the conduct of the group. U.S.S.G. § 3B1.2 comment. (n.4). A

defendant is a minor participant if he is less culpable than most other participants,

but his role could not be described as minimal. U.S.S.G. § 3B1.2 comment. (n.5).

The defendant has the burden of establishing his role in the offense by a

preponderance of the evidence. United States v. De Varon, 

, 939

(11th Cir. 1999) (en banc).

      The determination whether to apply a role reduction “is heavily dependent

upon the facts of the particular case.” U.S.S.G. § 3B1.2, comment. (n.3(c)). “Two

principles guide the district court’s consideration: (1) the court must compare the

defendant’s role in the offense with the relevant conduct attributed to him in

calculating his base offense level; and (2) the court may compare the defendant’s

conduct to that of other participants involved in the offense.” United States v.

Alvarez-Coria, 

, 1343 (11th Cir. 2006). When the relevant conduct

attributed to a defendant is the same as his actual conduct, “he cannot prove that he

is entitled to a minor-role adjustment simply by pointing to some broader scheme

for which he was not held accountable.” 

fact that a

defendant’s role may be less than that of other participants engaged in the relevant



                                           8
conduct may not be dispositive of [his] role in the offense, since it is possible that

none are minor or minimal participants.” De 

.

      In this case, Butler’s relevant conduct matched his actual conduct; he was

held responsible for two kilograms of cocaine and not for any larger role in the

conspiracy. Butler has not shown that he was entitled to a role reduction.

      B. Substantive reasonableness

      To be substantively reasonable, the sentence must be “sufficient, but not

greater than necessary to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2). These purposes include 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 or

medical care. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the

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 of the Sentencing Commission, the

need to avoid unwarranted sentencing disparities, and the need to provide

restitution to victims. 

(3)-(7).

      We will not vacate a sentence as unreasonable unless we are “left with the



                                            9
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, 

, 1191 (11th Cir. 2008) (quotation omitted).

             1. Credit for time served

      Butler argues that he was entitled to credit for the 29 months he spent in

custody on state charges that formed relevant conduct for his federal sentence.

      Section 5G1.3 instructs that a defendant should receive credit for time

served for an offense that is relevant conduct. U.S.S.G. § 5G1.3(b). But such

credit is due if the relevant conduct was a basis for an increase in the defendant’s

offense level. See U.S.S.G. § 5G1.2, comment. (n.2). Here, Butler was in state

custody for possession of lidocaine when he was taken into federal custody for the

federal offenses. But this relevant conduct did not increase Butler’s offense level

in the instant case; his offense level was determined by the amount of cocaine with

which Butler was involved. Thus the court properly imposed consecutive

sentences. See U.S.S.G. § 5G1.3, comment. (n.2(A)).

             2. Downward departures

      Butler argues that he should have received downward departures under

U.S.S.G. § 5H1.6 for his family responsibilities, under § 5K2.0 for his role in the



                                          10
offense, and § 4A1.3(b) because his criminal history category substantially over-

represented the likelihood that he will commit other crimes.

      We generally do not review the merits of a district court’s refusal to grant a

downward departure. United States v. Winingear, 

, 1245 (11th Cir.

2005). We may review a defendant’s claim that the district court mistakenly

believed it lacked the authority to grant such a departure. United States v. Mignott,

, 1289 (11th Cir. 1999). When nothing in the record indicates

otherwise, however, we will assume that the district court understood that it had

the authority to depart downward, and we will not review that decision. United

States v. Chase, 

, 1195 (11th Cir. 1999). We will entertain a

defendant’s challenge to a district court’s refusal to grant a downward departure to

the extent that it involves a possible misapplication of the guidelines. United

States v. Castellanos, 

, 1497 (11th Cir. 1990).

      Here, nothing in the record indicates that the district court mistakenly

believed that it lacked the authority to grant a departure, and thus review of the

court’s refusal to depart downward is precluded.

      For the foregoing reasons, we conclude Butler’s sentences were procedurally

and substantively reasonable.

      AFFIRMED.



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