Case: 14-10027    Date Filed: 07/02/2014   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-10027
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 4:13-cr-00133-BAE-GRS-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                       versus

JEFFERY STEPHEN BARNES,

                                                    Defendant-Appellant.

                         __________________________

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

                                   (July 2, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Jeffery Barnes appeals his 42-month sentence for distribution of cocaine

hydrochloride. After review of the record and the parties’ briefs, we affirm.
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                                          I
      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      Following three cocaine sales transactions with undercover agents of the

Bureau of Alcohol, Tobacco, Firearms, and Explosives, Mr. Barnes was charged

with and ultimately pled guilty to distribution of cocaine hydrochloride, in

violation of 21 U.S.C. §§ 841(a)(1).       Mr. Barnes acknowledges that the pre-

sentence investigation report correctly assigned to him a criminal history category

of III and a total offense level of 12, which carried with it an advisory guidelines

range of 15 to 21 months’ imprisonment.              The report’s criminal history

classification took into account prior convictions for sale of crack cocaine and

possession of a firearm by a convicted felon, but did not reflect five older

convictions, including those for possession of marijuana and distribution of

cocaine.   Observing that, among other things, Mr. Barnes’ criminal history

classification understated the seriousness of his criminal record, and his conviction

for distribution of cocaine would have qualified him as a career offender, the

probation officer who prepared the report recommended a sentence of 60 months’

imprisonment.

      At sentencing, the district court expressed concern that Mr. Barnes’ criminal

history classification did not adequately reflect the extent of his criminal record,


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and that the prior sentences had done little to deter Mr. Barnes from engaging in

criminal conduct. Observing that "during the majority of [his] adult life he has

remained incarcerated or on some form of supervision," and that he "narrowly

escape[d] being termed a career offender" with an advisory guidelines range of 151

to 188 months’ imprisonment, the district court imposed a sentence of 42 months’

imprisonment followed by five years’ supervised release.

      On appeal, Mr. Barnes argues that his sentence is substantively unreasonable

because his advisory guidelines calculation adequately took into account his

criminal history, and because the district court disregarded or gave too little weight

to the fact that he promptly accepted responsibility, the fact that his crime was

devoid of facts which would have resulted in enhancements under the Sentencing

Guidelines, and the fact that the government conceded that he was non-violent.

                                         II

      We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 

, 51 (2007). This standard

applies “[r]egardless of whether the sentence imposed is inside or outside the

Guidelines range.” 

the district court's sentence is more severe or more

lenient than the sentence we would have imposed, we will only reverse if we are

“left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the [18 U.S.C.] § 3553(a) factors by arriving at a


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sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc)

(quoting United States v. Pugh, 

, 1191 (11th Cir. 2008)). “In

reviewing the reasonableness of a sentence, we must, as the Supreme Court has

instructed us, consider the totality of the facts and circumstances.” 

                                         III


      Mr. Barnes principally challenges the substantive reasonableness of his

sentence on the grounds that his advisory guidelines range sufficiently reflected his

criminal history, and that the district court abused its discretion by not taking into

account his early acceptance of responsibility, his nonviolent nature, and the lack

of enhancements applicable to his crime. We are not persuaded.

      Contrary to Mr. Barnes’ argument, the district court is not limited to

considering conduct used to calculate a defendant's advisory guidelines range in

deciding whether to impose a sentence based on a variance. Indeed, 18 U.S.C. §

3553(a) requires the district court to take into account the defendant's “history and

characteristics,” which implicitly encompasses criminal history not already

accounted for in the advisory guidelines calculations. See also United States v.

Rodriguez, 

, 1264 (11th Cir. 2010) (holding that a district court need

not impose an enhancement before granting a variance).             The district court



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therefore permissibly considered crimes that were not taken into account in

determining Mr. Barnes’ advisory guidelines range.

      Nor did the district court’s purported failure to take into account Mr. Barnes’

mitigating factors render its sentence substantively unreasonable. The fact that the

district court did not explicitly reference these factors on the record in imposing its

sentence does not indicate that it “erroneously ‘ignored’ or failed to consider this

evidence in determining [Mr. Barnes’] sentence.” United States v. Amedeo, 

, 833 (11th Cir. 2007). Mr. Barnes’ sentence falls well below the 60

months’ imprisonment recommended by the probation officer, and is likewise 198

months below the 240-month statutory maximum, strongly suggesting that the

district court did consider mitigating evidence in arriving at its sentence. See

United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (citing the fact

that sentence fell below statutory maximum as an indicator that sentence was

reasonable).

      Under the totality of the circumstances, we cannot say that the district court

committed a clear error of judgment and imposed a sentence outside the range of

reasonable sentences.

                                          IV

      Mr. Barnes’ 42-month sentence is affirmed.

      AFFIRMED.


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