[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________            FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-15443         ELEVENTH CIRCUIT
                            Non-Argument Calendar        JULY 22, 2011
                          ________________________        JOHN LEY
                                                            CLERK
                  D.C. Docket No. 1:09-cr-00340-TCB-CCH-2

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

BARBARA CLEVELAND,

                                                         Defendant-Appellant.

                          ________________________

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

                                 (July 22, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Barbara Cleveland appeals her convictions and 15-month sentence for

making false representations regarding information that was required to be
maintained in the records of a federal firearms licensee, in violation of 18 U.S.C.

§§ 924(a)(1)(A), 2, and making false representations to a federal firearms licensee

that were likely to deceive it as to facts material to a sale of firearms, in violation

of 18 U.S.C. §§ 922(a)(6), 2. She argues, first, that the government constructively

amended the indictment when it referred in closing argument to another allegedly

false statement that was not alleged in the indictment. Second, she contends that

she was entitled to an additional jury instruction stating specifically that

reasonable doubt can arise from a lack of evidence. Finally, she claims that the

imposition of a term of imprisonment was unreasonable under the circumstances.

For the reasons set forth below, we affirm Cleveland’s convictions and sentence.

                                           I.

      Cleveland moved to Gordon, Georgia, from Elizabeth, New Jersey, in

August 2008. On August 18, 2008, she went with her brother, Hassan Alwali, to

Elite Pawn & Jewelry in Conyers, Georgia. After she and Alwali examined a

number of firearms, Cleveland purchased five guns, including a Taurus 92 with a

laser sight. She indicated on an ATF-4473 form that she was the actual buyer of

the firearms. With Alwali’s assistance, Cleveland also purchased a .357 Magnum

from an individual named Myron Banks, whom Alwali met at the store. Three of

the firearms that Cleveland purchased from Elite Pawn & Jewelry were recovered

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in New Jersey one to two months after the purchase. On September 24, 2008, after

one of the firearms already had been recovered, Cleveland filed a police report

claiming that the guns had been stolen from her shed. During an interview with

law enforcement, Cleveland gave conflicting stories regarding her reasons for

purchasing the guns, the cash she used for the purchase, her reasons for being in

the Conyers area that day, whether the brother who had driven her moving truck

from New Jersey had returned home before she purchased the guns, where she

stored the guns, and when she discovered the alleged theft of the guns.

      In 2009, a federal grand jury indicted Cleveland and Alwali on two counts:

(1) making false representations regarding information that was required to be

maintained in the records of a federal firearms licensee, in violation of 18 U.S.C.

§§ 924(a)(1)(A), 2; and (2) making false representations to the licensee that were

likely to deceive it as to facts material to a sale of firearms, in violation of 18

U.S.C. §§ 922(a)(6), 2. Specifically, the indictment alleged that Cleveland and

Alwali falsely represented that Cleveland was the actual purchaser of the five

pistols obtained from Elite Pawn & Jewelry.

      At trial, in addition to the facts set forth above, the government presented

testimony that it was unusual to sell five guns in a single transaction, that a gun




                                            3
with a laser sight is not a standard home-protection gun, and that a .357 Magnum

was “too powerful” for recreational shooting and was “a lot of gun for a woman.”

      Cleveland proposed including among the jury instructions the sentence, “A

reasonable doubt may arise not only from the evidence produced at trial, but from

a lack of evidence, for the law does not impose on the [d]efendant the duty of

producing any evidence.” The court found that the possibility of reasonable doubt

arising from a lack of evidence was sufficiently covered and clearly implied by the

pattern charge. Accordingly, it declined to add Cleveland’s proposed instruction.

      During its closing argument, the government contended that, when

Cleveland purchased the five guns from the pawn shop, she knew that she was not

the actual buyer because she was going to transfer the guns to Alwali, a convicted

felon. In reviewing the Form 4473, the government argued as follows:

      And on this form, Government’s Exhibit 4, question 11a, the question
      you heard a lot about: Are you the actual buyer? Ms. Cleveland says
      yes. She writes the word “yes” in. And it’s explained. . . . It says the
      word “warning.” You are not the actual buyer if you are acquiring the
      firearm on behalf of another person.
             When she acquired those guns on behalf of her brother, Hassan
      Alwali, and she wrote yes in this form, she violated the law.
             ...
             There’s another question in here that we didn’t talk about
      during trial, but it’s in this form. And the form will go out with you.
      You’ll see it. It’s question 13. And it says: What is your state of
      residence? And Ms. Cleveland wrote Georgia. And then . . . it says .



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      . . you have a state of residence if you resided in a state for at least 90
      days before the date of this form, September [sic] 18th. . . .
             It is undisputed that Ms. Cleveland did not –

Cleveland interrupted to object that the government could not expand the

indictment by arguing that Cleveland had lied on another part of the form. The

government responded that the incorrect answer to the residence question showed

Cleveland’s intent, and that it was not going to argue that the incorrect answer was

a crime. The court overruled the objection. The government resumed,

      [W]hen Ms. Cleveland bought these five guns, she said that she was a
      resident of the state of Georgia. The definition is she’s not a resident
      for 90 days. It states it right there on the form. Now, that’s not the
      crime. The crime was lying on the 4473 about being an actual buyer.
      But that goes to her intent. That goes to her intent.
             She was lying on this form. She was lying when she said she
      was the actual buyer and she was lying when [s]he said she was a
      resident of Georgia. It’s clear she was not a resident of Georgia.

      During Cleveland’s closing argument, counsel argued at length that the

government had failed to present sufficient evidence to support its case. The court

gave the following jury instructions regarding the government’s burden of proof:

      It will be your duty to decide whether the [g]overnment has proved
      beyond a reasonable doubt the specific facts necessary to find the
      defendants guilty of the crimes charged in the indictment.
              You must make your decision only on the basis of the
      testimony and other evidence presented here during the trial; and you
      must not be influenced in any way by either sympathy or prejudice for
      or against the defendants or the [g]overnment.
              ....

                                           5
            The indictment or formal charge against the defendants is not
      evidence of guilt. Indeed, the defendants are presumed by the law to
      be innocent. The law does not require the defendants to prove their
      innocence or to produce any evidence at all; and you cannot consider
      the defendants’ decision not to testify in any way during your
      deliberations. The [g]overnment has the burden of proving the
      defendants guilty beyond a reasonable doubt, and if it fails to do so,
      you must find the defendants not guilty.
            Thus, while the [g]overnment’s burden of proof is a strict or
      heavy burden, it is not necessary that the defendants’ guilt be proved
      beyond all possible doubt. It is only required that the [g]overnment’s
      proof exclude any reasonable doubt concerning the defendants’ guilt.
            A reasonable doubt is a real doubt, based upon reason and
      common sense after careful and impartial consideration of all the
      evidence in the case.
            Proof beyond a reasonable doubt, therefore, is proof of such a
      convincing character that you would be willing to rely and act upon it
      without hesitation in the most important of your own affairs. If you
      are convinced that the defendants have been proved guilty beyond a
      reasonable doubt, say so. If you are not convinced, say so.

The court also reminded the jury that the defendants were “on trial only for those

specific offenses charged in the indictment.”

      The jury found Alwali and Cleveland guilty on both counts. In Cleveland’s

presentencing investigation report (“PSI”), the probation officer calculated a total

offense level of 14, pursuant to U.S.S.G. § 2K2.1(a)(7), (b)(1)(A). The probation

officer considered adding the four-level firearm-trafficking enhancement in

§ 2K2.1(b)(5), but ultimately concluded that the evidence did not support it.

Cleveland’s absence of a criminal record placed her in criminal history category I.



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She faced a statutory maximum of 5 years’ imprisonment, as well as guideline

ranges of 15 to 21 months’ imprisonment and 2 to 3 years’ supervised release.

The PSI included the notation, “Probation Option: N/A.”

      Cleveland argued in a sentencing memorandum that a sentence of 12

months’ home detention would be appropriate in light of her life history and the

circumstances of the offense. She had been a law-abiding and productive citizen

for her entire life, never receiving even a traffic citation before the instant offense.

She had complied with all of the conditions of her pretrial supervision. She

argued that her criminal history category, which would be equally applicable to an

individual with uncounted prior or pending convictions or other law-enforcement

“entanglements,” did not adequately reflect her complete absence of prior criminal

conduct. Furthermore, she had supported her family over the course of her life,

she worked in the same demanding job for nearly 20 years, and she had no history

of substance abuse. In light of these characteristics, she was unlikely to recidivate.

She added that incarceration was not mandated in all situations and should not be

the default choice prior to consideration of the 18 U.S.C. § 3553(a) factors.

      At the sentencing hearing, the government argued that Cleveland “got a

break” when the probation officer declined to apply the § 2K2.1(b)(5)

enhancement, and that straw purchasers of firearms “by definition” have no

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criminal history and “[a]lmost always” are family members or girlfriends. Such

women often unwittingly agree to participate in the straw purchases, but Cleveland

appeared to know “what she was doing,” as she made both the pawn-shop

purchase and the private purchase of the .357 Magnum. The government added

that six firearms “is an awful lot,” and that Cleveland had falsely reported to the

police that the firearms had been stolen.

      Cleveland argued that 18 U.S.C. § 3582(a) states that courts should consider

whether a term of imprisonment or some other kind of sentence would be

appropriate, and that § 3561(a)(1) indicates that probation is only unavailable for

Class A and B felonies. Cleveland had committed a Class D felony. She further

suggested that the Sentencing Commission is moving toward greater consideration

of alternative sentencing. Additionally, Congress had not created a general

statutory preference for imprisonment. Thus, in addition to the concerns of

§ 3553(a) and Booker,1 the court could consider that the Guidelines themselves did

not “do what Congress asked.” She reiterated the arguments set forth in her

sentencing memorandum and added that the inapplicability of the § 2K2.1(b)(5)

enhancement was not a “close call.”




      1
          United States v. Booker, 

, 

, 

(2005).

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      The government agreed that Cleveland was not a likely recidivist, but it

contended that she understood the potential “aftermath” of guns because she had

worked for many years at a hospital in a high-crime area. Her history and

characteristics did not weigh in favor of a strong sentence, but the seriousness of

the offense warranted some “meaningful punishment.”

      The court found that a guideline sentence would be appropriate. It

sentenced Cleveland to 15 months’ imprisonment, 2 years’ supervised release, and

100 hours of community service. It stated that it believed the sentence to be just

and fair, and that it had considered all of the § 3553(a) sentencing factors.

                                          II.

      In evaluating whether the indictment was constructively amended, we

review the jury instructions and the prosecutor’s comments in context to determine

whether an expansion of the indictment occurred either literally or in effect.

United States v. Castro, 

, 1450 (11th Cir. 1996). “A constructive

amendment occurs when the essential elements of the offense contained in the

indictment are altered to broaden the possible bases for conviction beyond what is

contained in the indictment.” 

(quotation marks omitted). A

constructive amendment violates the fundamental principle, stemming from the

Fifth Amendment, that a defendant can only be convicted for a crime charged in

                                          9
the indictment. 

Thus, a constructive amendment is per se reversible

error. United States v. Williams, 

, 1246 (11th Cir. 2008).

      Both counts of the indictment alleged only that Cleveland violated federal

law when she falsely represented on the Form 4473 that she was the actual buyer

of the five firearms that were purchased from the pawn shop. As the government

reviewed the form during closing, it read to the jury the residency question and the

accompanying explanation, “[Y]ou have a state of residence if you resided in a

state for at least 90 days before the date of this form.” It noted that Cleveland had

identified herself as a resident of Georgia, even though she had not resided in

Georgia for 90 days at that time. It then explained, “Now, that’s not the crime.

The crime was lying on the 4473 about being an actual buyer. But that goes to her

intent. That goes to her intent. She was lying on this form.” Thus, the

government explicitly reminded the jury that only the actual-buyer statement could

be the basis for a conviction, and it explained the limited purpose for which it

wished the jurors to consider Cleveland’s purported lie about her residency.

Furthermore, the district court instructed the jury specifically that Cleveland was

“on trial only for those specific offenses charged in the indictment.” Thus, when

viewed in context, the record does not suggest that the government’s closing




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argument had the effect of expanding the possible bases for conviction beyond the

actual-buyer statement. See 

, 1452-53.

                                          III.

      Where a district court declines to use a proffered jury instruction, we review

that decision for an abuse of discretion. United States v. Dean, 

, 847

(11th Cir. 2007). We review de novo whether the instructions issued by the

district court misstated the law or misled the jury. United States v. James, No. 10-

10399, manuscript op. at 7 (11th Cir. June 9, 2011). “The district court has broad

discretion in formulating its charge as long as the charge accurately reflects the

law and the facts.” United States v. Spoerke, 

, 1244 (11th Cir.

2009) (quotation and alteration marks omitted). Thus, “the refusal to give a

proffered instruction only constitutes reversible error if: (1) the requested

instruction was a correct statement of the law, (2) its subject matter was not

substantially covered by other instructions, and (3) its subject matter dealt with an

issue in the trial court that was so important that failure to give it seriously

impaired the defendant’s ability to defend himself.” 

(quotation marks omitted). “Error in jury instructions does not constitute grounds

for reversal unless there is a reasonable likelihood that it affected the defendant’s

substantial rights.” United States v. Wright, 

, 1277 (11th Cir. 2004).

                                           11
      “[W]e have repeatedly approved of the definition of reasonable doubt

provided in the Eleventh Circuit Pattern Jury Instructions.” James, manuscript op.

at 8. Furthermore, the pattern instruction read by the court substantially addressed

Cleveland’s concerns, as it stated multiple times that the government bore the

burden of proving her guilt, that she was not required to present any evidence, and

that the jurors should acquit if they were “not convinced” of her guilt. Nothing in

the record suggests that the jury would have been misled as to whether they could

consider a perceived paucity of evidence to mean that the government had failed

to satisfy its burden of proof. Accordingly, the pattern instruction was correct and

the district court did not abuse its discretion in declining to add Cleveland’s

requested sentence. See James, manuscript op. at 7-8; 

.

                                         IV.

      We review the substantive reasonableness of a sentence under an abuse-of-

discretion standard. United States v. Irey, 

, 1188 (11th Cir. 2010)

(en banc), cert. denied, 

(2011). We will reverse a sentence under

that standard only if the district court has made a clear error of judgment. 

Our review must take into account the totality of the facts and

circumstances, including the extent of any variance from the guideline range. Gall

v. United States, 

, 51, 

, 597, 

(2007).

                                          12
The appellant bears the burden of establishing that the sentence is unreasonable.

United States v. Talley, 

, 788 (11th Cir. 2005).

      After Booker, sentencing is a two-step process that requires the district court

first to “consult the Guidelines and correctly calculate the range provided by the

Guidelines,” then to consider the factors in 18 U.S.C. § 3553(a) and determine a

reasonable sentence. 

Those factors include: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (3) the need for deterrence;

(4) the need to protect the public; (5) the need to provide the defendant with

training or medical care; (6) the kinds of sentences available; (7) the sentencing

guideline range; (8) pertinent policy statements of the Sentencing Commission;

(9) the need to avoid unwarranted sentencing disparities; and (10) the need to

provide restitution to the victims. 

3553(a)).

      The sentence must be sufficient, but no greater than necessary, to punish,

deter, protect the public, and provide the training and care outlined in the statute.

§ 3553(a). In 

, we rejected the term “parsimony

principle” to describe this requirement, observing its tendency “to slant the

discussion toward shorter sentences” and noting that “[t]he requirement is not

                                          13
merely that a sentencing court . . . be stingy enough to avoid one that is too long,

but also that it be generous enough to avoid one that is too short.”

      The district court commits a clear error of judgment if it weighs the

§ 3553(a) factors unreasonably, thus arriving at a sentence that does not achieve

the statutory purposes of sentencing. 

It does not abuse its discretion,

though, when it merely attaches “great weight” to a single, permissible factor or

set of factors. 

, 128 S.Ct. at 600-02.

      Here, Cleveland argued that her clean criminal record was not adequately

reflected in her criminal history category, and that her background of gainful

employment, adherence to the law, and family support made her a good candidate

for probation. The government argued that she had committed a serious offense

with full knowledge of the negative effect that the firearms would have on the

target community, and that she had filed a false police report in furtherance of the

crime. The court listened to both arguments, then concluded that a low-end

guideline sentence would be just, fair, and appropriate in light of the § 3553(a)

factors. Nothing in the record suggests that the court believed the Guidelines’

disapproval of probation to be mandatory or presumptively correct. Accordingly,

Cleveland has not shown that the district court made a clear error of judgment in

imposing the 15-month sentence. See 

.

                                          14
For the foregoing reasons, we affirm Cleveland’s convictions and sentence.

AFFIRMED.




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