Case: 12-10895         Date Filed: 11/20/2012   Page: 1 of 4

                                                                       [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-10895
                                         Non-Argument Calendar
                                       ________________________

                            D.C. Docket No. 1:10-cr-00453-ODE-JFK-4


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                versus

DEVORIOUS MONTEZ WOODEN JONES,
a.k.a. Popcorn,
a.k.a. Bro,

llllllllllllllllllllllllllllllllllllllll                               Defendant-Appellant.
                                       ________________________

                            Appeal from the United States District Court
                               for the Northern District of Georgia
                                  ________________________
                                      (November 20, 2012)

Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

         Devorious Jones appeals his sentence of 130 months for conspiring to

commit a Hobbs Act robbery, 18 U.S.C. § 1951(a), and for using and carrying a
                Case: 12-10895    Date Filed: 11/20/2012    Page: 2 of 4

firearm during and in relation to that robbery, 

challenges

the denial of a reduction for acceptance of responsibility in computing his sentence

for conspiracy and the reasonableness of that sentence. Jones also challenges, for

the first time, the finding of the district court that he brandished, instead of used or

carried, a firearm during the robbery. We affirm.

      The district court did not clearly err when it denied Jones a reduction for

acceptance of responsibility. A defendant may receive a two-level reduction in his

offense level “[i]f [he] clearly demonstrates acceptance of responsibility for his

offense,” United States Sentencing Guidelines Manual § 3E1.1(a) (Nov. 2011), by

“truthfully admitting the conduct comprising the offense[] of conviction, and

truthfully admitting or not falsely denying any additional relevant conduct for

which [he] is accountable,” 

determine whether to grant a

reduction, the district court considers “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant.” 

pleaded guilty for conspiring to commit

the robbery, but he falsely denied using a firearm during the crime and required the

government to prove that charge during a bench trial. Because Jones was

“unwilling   to accept responsibility for some of the charges against him [and] had

not really ‘come clean’ and faced up to the full measure of his criminal




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culpability,” United States v. Thomas, 

, 1034 (11th Cir. 2001), he

was not entitled to a reduction in his offense level for acceptance of responsibility.

      The district court also did not abuse its discretion by sentencing Jones to 46

months of imprisonment for his role in the conspiracy. Jones’s sentence is at the

low end of his advisory guidelines range of 46 to 57 months and well below the

statutory maximum term for his crime. The district court reasonably determined

that a sentence within the guidelines range would adequately punish Jones for

being “heavily involved in the planning of” the armed robbery of a Loomis

armored truck in the parking lot of a hospital; “deter Mr. Jones from future similar

conduct”; and account for “the fact that Mr. Jones was pretty young when he did

these crimes.” See 18 U.S.C. § 3553(a). Jones argues about a disparity between

his sentence and the one-month sentence imposed on coconspirator Okevlibus

Thornton, but the two men are not similarly situated. See United States v.

Spoerke, 

, 1252 (11th Cir. 2009). Unlike Jones, Thornton confessed

to planning the robbery and carrying a firearm during the offense; described the

robbery to investigators; identified Jones and two other coconspirators; provided

information that investigators used to locate and arrest Jones and his

coconspirators; and testified at Jones’s trial. See United States v. Docampo, 

, 1101 (11th Cir. 2009). Jones’s sentence is reasonable.




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      The district court also did not plainly err when it found that Jones brandished

a firearm during the robbery. A defendant brandishes a firearm when he

“display[s] all or part of the firearm, or otherwise make[s] the presence of the

firearm known to another person, in order to intimidate that person, regardless of

whether the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4).

Eyewitnesses testified during the bench trial that Jones displayed his firearm and

hit it against the armored truck during the robbery. Although the driver of the

armed truck testified that she did not see the firearm, the district court did not err in

determining that Jones made a racket with his firearm to dissuade the driver and

any onlooker from interrupting the robbery. And, even if we assume that the

district court erred, Jones cites no authority to establish that the finding is “plain

under controlling precedent or in view of the unequivocally clear words of [the]

statute.” United States v. Lett, 

, 790 (11th Cir. 2007).

      We AFFIRM Jones’s sentence.




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