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                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-15651
                               ________________________

                         D.C. Docket No. 1:13-cr-00350-SCJ-1

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

EMMANUEL ASANTE,

                                                         Defendant - Appellant.

                               ________________________

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

                                       (April 6, 2015)


Before MARCUS, JILL PRYOR and EBEL,* Circuit Judges.

EBEL, Circuit Judge:

__________________
         *
         Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      Emmanuel Asante pled guilty to two firearms offenses and the district court

sentenced him at the bottom of the advisory sentencing guideline range to forty-six

months in prison. Asante claims that the district court erred in calculating his

sentencing range because the court enhanced his offense level for both trafficking

and exporting firearms without sufficient evidence to support either enhancement.

He further contends that, even if there was evidence to support each of those

enhancements, to apply both in Asante=s case impermissibly double-counted the

same conduct. We reject each of those arguments and further conclude that

Asante=s sentence at the bottom of the properly calculated sentencing range was

not substantively unreasonable. Lastly, we reject Asante=s complaint that the

district court should have redacted information in the presentence report (“PSR”)

regarding threats he made against the prosecutor and a magistrate judge who

denied Asante=s request for pretrial release on bond. Therefore, having jurisdiction

under 18 U.S.C. ' 3742(a) and 28 U.S.C. '1291, we AFFIRM.

                                 BACKGROUND

      Asante pled guilty to 1) conspiring to make false statements to a federally

licensed firearms dealer; and 2) making, or aiding and abetting, false statements

regarding information that a federally licensed firearms dealer is required to keep

in his records. See 18 U.S.C. '' 2, 371, 924(a)(1)(A). These offenses were part of

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a scheme whereby Asante, who could not lawfully possess a firearm, would pay

his co-defendant, Johnny White, to buy weapons for Asante.1 When White

purchased the firearm underlying Asante=s convictions, White falsely represented

to a federally licensed firearms dealer that he, White, was the intended owner. The

district court sentenced Asante at the bottom of his advisory sentencing guideline

range, to forty-six months in prison, for each firearms offense, the sentences to run

concurrently.

                                     DISCUSSION

I. The district court properly enhanced Asante=s offense level for both
trafficking and exporting firearms

      Asante claims that the district court erred in calculating his advisory

guideline range by improperly enhancing his offense level for both trafficking and

exporting firearms. Asante specifically contends that there was insufficient

evidence to justify applying either of those enhancements in his case and that, even

if there was sufficient evidence to support each of those enhancements, it was

impermissible double-counting to apply both to him.




      1
       Asante could not lawfully possess firearms because 1) he is a citizen of Ghana
admitted to the United States on a non-immigrant student visa; and 2) at the time of these
offenses Asante was unlawfully in the United States, having overstayed his student visa.
See 18 U.S.C. ' 922(g)(5)(A), (B).

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      A. The Government presented sufficient evidence for the district court
      to find that each of the enhancements applied to Asante

      When, as here, Athe government seeks to apply an enhancement under the

Sentencing Guidelines over a defendant=s factual objection, [the United States] has

the burden of introducing sufficient and reliable evidence to prove the necessary

facts by a preponderance of the evidence.@ United States v. Isaacson, 

, 1305 (11th Cir. 2014) (internal quotation marks omitted), cert. denied, 

(2015). This court reviews the district court=s application of the

sentencing guidelines de novo and its factual findings for clear error. See 

before the sentencing court

      The evidence before the sentencing court included the following: After

tracing a firearm found at a Maryland crime scene back to White, who lived in

Georgia, agents from the Bureau of Alcohol, Tobacco and Firearms (AATF@)

questioned White about nine guns he had purchased during an eight-month period.

White explained that he had purchased most of those weaponsCfive to seven

gunsCfor a friend who could not buy firearms himself. That friend, Asante, told

White that he was transporting the guns in order to make some money. Asante

would designate which firearms White should buyCusually smaller caliber

weapons which Asante could more easily transport, tell White where to buy guns,

and then give White the means with which to buy the weapons.
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      At the ATF agents= request, White called Asante and asked him why ATF

agents would be asking White about the guns White bought for Asante. During

that recorded call, Asante told White that there should be no problem with those

guns because they were out of the country, having been hidden in cars that were

then shipped to Jamaica, where Asante=s people retrieved them. In a second

recorded call, Asante told White that Asante=s brother in Jamaica had all but one of

the smuggled guns. And Asante=s brother knew who had the last gun; there was no

problem with that gun, either.

                2. There was sufficient evidence to apply the trafficking
                enhancement, U.S.S.G. ' 2K2.1(b)(5), to Asante

      To calculate the offense level of a firearms offender like Asante, the district

court begins with U.S.S.G. ' 2K2.1. Section 2K2.1(b)(5), at issue here, increases

the offense level by four if the firearms offender Aengaged in the trafficking of

firearms.@ In order for this offense-level enhancement to apply in a given case, the

Government must prove that the defendant 1) transported or transferred, or

received with the intent to transport, two or more firearms to someone else;

2) knowing that the defendant=s conduct would result in another=s unlawful

possession, use or disposal of those firearms. U.S.S.G. ' 2K2.1, app. n.13(A).2


      2
          More precisely, the trafficking enhancement states that it:

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Asante does not challenge the Government=s proof of the first circumstance, that he

transferred, or received with the intent to transfer, more than two firearms to

someone else. But Asante contends the Government failed to prove that he

A[k]new or had reason to believe@ that his conduct would result in another=s

unlawful possession, use or disposal of the firearm. There are two ways the

Government can prove that second circumstance. See 

each of

those two manners of proof next.

                     a. The Government failed to prove that Asante knew or
                     had reason to believe that his conduct would result in the
                     transfer of a firearm to an individual Awhose possession or
                     receipt of the firearm would be unlawful@




              applies, regardless of whether anything of value was exchanged, if the
              defendantC

              (i) [t]ransported, transferred, or otherwise disposed of two or more
              firearms to another individual, or received two or more firearms with the
              intent to transport, transfer, or otherwise dispose of firearms to another
              individual; and

              (ii) [k]new or had reason to believe that such conduct would result in the
              transport, transfer, or disposal of a firearm to an individualC

                     (I) Whose possession or receipt of the firearm would be
                     unlawful; or

                     (II) Who intended to use or dispose of the firearm
                     unlawfully.

U.S.S.G. ' 2K2.1, app. n.13(A).

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      The Government could first prove that the defendant A[k]new or had reason

to believe that [his] conduct would result in the transport, transfer, or disposal of a

firearm to an individual . . . [w]hose possession or receipt of the firearm would be

unlawful.@ 

13(A)(ii)(I). The guidelines narrowly define an

A[i]ndividual whose possession or receipt of the firearm would be unlawful@ to

Amean[] an individual who (i) has a prior conviction for a crime of violence, a

controlled substance offense, or a misdemeanor crime of domestic violence; or

(ii) at the time of the offense was under a criminal justice sentence, including

probation, parole, supervised release, imprisonment, work release, or escape.@ 

13(B). Because the Government failed to present any evidence that Asante

knew that his conduct would result in a firearm being transferred to such an

individual, the district court erred in finding that the trafficking enhancement

applied on this basis.

                    b. There was sufficient evidence to find that Asante knew
                    or had reason to believe that his conduct would result in the
                    transfer of a firearm to an individual Awho intended to use
                    or dispose of the firearm unlawfully@

      The second way the trafficking enhancement can apply is if the Government

proves that the defendant A[k]new or had reason to believe that [his] conduct would

result in the transport, transfer, or disposal of a firearm to an individual . . . [w]ho

intended to use or dispose of the firearm unlawfully.@ 

13(A)(ii)(II).
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Asante contends that the district court erred in finding that the trafficking

enhancement applied to him on this basis, because the Government presented no

evidence as to whom Asante transferred the firearms or what the individuals along

the chain of possession intended to do with the weapons.

      Even without such information, however, the trafficking enhancement can

apply if the circumstances, known to the defendant when he transferred the

firearms, or received the firearms with the intent to transfer them, established that

the defendant A[k]new or had reason to believe@ that his conduct would result in the

transfer of a firearm to someone A[w]ho intended to use or dispose of the firearm

unlawfully.@ 

applying the trafficking enhancement in this

manner, a court looks, not to what actually happened to the firearms, but instead to

the circumstances known to the defendant. Several unpublished Eleventh Circuit

decisions have applied the trafficking enhancement in this way. In United States v.

Hernandez, for example, this court upheld applying the trafficking enhancement

based on the circumstances known to Defendant Salvador Luna. 572 F. App=x

962, 963 (11th Cir. 2014) (per curiam) (unpublished). Those circumstances

included the following:

      [Luna] was recruited by an individual whom he knew only by his first
      name, Jose; Luna knew that Jose had recruited other individuals to
      purchase firearms; Luna paid [his co-defendant] Sergio Hernandez to
      purchase six firearms; Jose gave Luna a Jeep vehicle to transport the
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      firearms to Mexico; Luna registered the Jeep in his name; Luna knew
      Jose hid the firearms in the door panels of the Jeep; Luna drove the
      Jeep to Mexico in exchange for $3,000 upon delivery of the firearms
      to Jose=s brother; and Luna previously had transported cars to Mexico
      on numerous occasions, where he Alegalized@ them.

circumstances, we held that the sentencing

      court reasonably inferred that Luna knew the guns would be disposed
      of unlawfully because he knew of Jose=s clandestine tactics and
      because Luna used a straw man to purchase the firearms and
      smuggled them into Mexico . . . . Luna=s use of surreptitious methods
      to acquire and to deliver the firearms eliminated any plausible belief
      that those firearms would be used for innocent, or legal, purposes.

marks, alterations omitted).

      We similarly upheld application of the trafficking enhancement in United

States v. West, based on the suspicious circumstances known to the defendant, and

not on the transferees who actually ended up with the firearms nor on what those

transferees actually did with the firearms. 563 F. App=x 745, 746-47 (11th Cir.

2014) (per curiam) (unpublished). In fact, because the defendant there, West, sold

the firearms at issue to undercover officers, there was no evidence that the firearms

actually ended up being transferred to someone Awho intended to use or dispose of

the firearm unlawfully.@ 

Still, we upheld applying the trafficking

enhancement because the evidence established that West A>had reason to believe=

that the undercover officers would take the guns to the New York area and resell


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them to individuals who would dispose of or use them illegally.@ 

included the following:

      (1) West sold a total of seven guns to the undercover officers over
      several transactions; (2) the undercover officers told West that they
      intended to re-sell the guns Aup north@ in the New York area at double
      the price they paid West; (3) one of the undercover officers later told
      West that he made $800 selling a 9mm pistol that he had purchased
      from West for $275; (4) the undercover officers sought and purchased
      guns, such as assault rifles and handguns, designed for use on humans,
      not for hunting; (5) one undercover officer asked West about the serial
      numbers on the guns, and, when West indicated the guns were stolen,
      the officer told West that the officer would have to Ado some work@ to
      the guns, meaning he would have to obliterate the serial numbers; and
      (6) West was careful not to handle the guns with his bare hands and
      wiped the guns off before giving then to the undercover officers.

Id.; see also United States v. McMillar, 518 F. App=x 867, 868-69 (11th Cir. 2013)

(per curiam) (unpublished) (upholding application of trafficking enhancement

because defendant knew or had reason to believe firearms would end up with one

who would unlawfully use or dispose of the firearm, where defendant sold firearms

to undercover officers who told the defendant that the officers made a profit selling

guns in New York, they wanted to buy only smaller weapons that could be

concealed, and they could sell the guns in New York for twice what they paid for

them in Georgia); United States v. Grinnage, 309 F. App=x 334, 335-36 (11th Cir.

2009) (per curiam) (unpublished) (upholding applying trafficking enhancement

because defendant had reason to believe he was transferring firearm to one who

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intended to use or dispose of it unlawfully, where undercover officer to whom the

defendant sold the firearm told defendant that the officer spent the money he made

selling guns at a tattoo parlor in order to Amake it look legit@). 3

       We adopt the reasoning of these unpublished decisions. Applying it here,

we conclude that the evidence at Asante=s sentencing was sufficient for the district

court to find that, at the time Asante received and transferred the firearms, he

A[k]new or had a reason to believe@ that his conduct would result in the transfer of

a firearm to one A[w]ho intended to use or dispose of the firearm unlawfully.@ That

evidence included the following: Asante used a straw buyer, his co-defendant

White, to purchase five to seven guns unlawfully; during the scheme, Asante told

White that he was Atransporting@ the firearms in order to make some money; and,
       3
          Other circuits have applied this same reasoning, though also mostly in unpublished
decisions. See United States v. Marceau, 

, 31-32 (1st Cir. 2009) (upholding
application of trafficking enhancement, after finding defendant knew or had reason to know that
he was transferring firearm to one who intended to use or dispose of the weapon unlawfully
because he stated that he intended to steal firearms, bring them to Vermont, remove the serial
numbers, and then exchange the guns for drugs, and he acted in accord with his stated intent);
United States v. Melvin, 463 F. App=x 141, 147 (3d Cir. 2012) (unpublished) (upholding
application of trafficking enhancement, after finding defendant knew or had reason to know that
he was transferring firearm to one who intended to use or dispose of the weapon unlawfully
because of the number and type of firearms involved, the fact that defendant was being paid the
Ablack market rate,@ and the Asecretive nature of the transactions@); United States v. Walker, 375
F. App=x 68, 71 (2d Cir. 2010) (unpublished) (upholding application of trafficking enhancement,
after finding defendant knew or had reason to know that he was transferring firearm to one who
intended to use or dispose of the weapon unlawfully because the defendant delivered the firearms
Ain a furtive manner@ and Avouched that the guns were either fully automatic or could be
converted to fully automatic weapons@); cf. United States v. Green, 360 F. App=x 521, 524-25
(5th Cir. 2010) (per curiam) (unpublished) (applying same analysis but holding there was
insufficient evidence to support applying the trafficking enhancement because there was no
evidence of what the defendant knew or had reason to believe).
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to facilitate Asante=s transportation of the firearms, he directed White to buy

smaller caliber guns. The evidence further supports the inference that Asante knew

that the firearms he obtained from White would be hidden in cars that were being

shipped to Jamaica, where Asante=s brother would retrieve the smuggled firearms.

This evidence was sufficient for the district court to apply the trafficking

enhancement to Asante because he A[k]new or had reason to believe@ that his

conduct would result in the transfer of these firearms to one A[w]ho intended to use

or dispose of the firearm[s] unlawfully.@

              3. There was sufficient evidence to apply the exporting
              enhancement, U.S.S.G. ' 2K2.1(b)(6)(A), to Asante

       In addition to enhancing Asante=s offense level for trafficking firearms, the

district court applied an additional four-level enhancement for exporting firearms,

U.S.S.G. ' 2K2.1(b)(6)(A). 4 Based on the recorded calls, during which Asante

assured his co-defendant White that the guns White bought for Asante were

smuggled out of the United States in cars sent to Jamaica, where Asante=s brother

retrieved them, we reject Asante=s argument that the Government failed to present

enough evidence for the district court to find that the firearms actually left the


       4
         Section 2K2.1(b)(6)(A) applies A[i]f the defendant . . . [p]ossessed any firearm or
ammunition while leaving or attempting to leave the United States, or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to believe that it would be
transported out of the United States.@

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United States. Asante argues only that perhaps he was lying to White when Asante

told White the guns were out of the country. But the district court deemed

Asante=s statements during the recorded calls to be credible, and A[w]e accord great

deference to the [sentencing] court=s credibility determinations,@ United States v.

Barsoum, 

, 1333 (11th Cir. 2014) (internal quotation marks omitted)

(addressing credibility of drug quantity witnesses).5

       B. Applying both the trafficking and the exporting enhancements to
       Asante did not amount to impermissible double-counting

       Asante next argues that applying both the trafficking and exporting

enhancements impermissibly double-counted his involvement in shipping the

firearms out of the United States. We review this argument de novo. See United




       5
          To the extent Asante argued for the first time during oral argument that there was
insufficient evidence to establish, by a preponderance, that he “possessed or transferred” the
firearms “with knowledge, intent, or reason to believe that [they] would be transported out of the
United States,” we reject that argument. There was sufficient evidence before the district court
to support the implicit finding that, at the time Asante “possessed or transferred” the firearms, he
knew, intended, or had reason to believe that the firearms would be transported out of the United
States. That evidence included Asante’s statements, during the two recorded calls between
Asante and White, that the guns were hidden in cars and sent out of the United States to Jamaica;
Aevery car that we sent made it safely@; Amy@ (Asante=s) people had been able to take everything
out of the cars; AI have not talked to anybody there in the last week to see if anyone has a
problem@ with the guns, but Asante agreed to check; after checking with his Abrother,@ Asante
assured White that, of the five guns sent to Jamaica, Asante=s brother had four of them and the
brother would check with the person who had the fifth. In a later, unrecorded call, Asante told
White that there was no problem with the fifth gun, either. In addition to these recorded calls
that occurred after the guns were already in Jamaica, at the time Asante was buying guns through
White, Asante told White that Asante was transporting the guns in order to make money.
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States v. Flanders, 

, 1339 (11th Cir. 2014), cert. denied, 

(2015).

      AImpermissible double counting occurs only when one part of the

[Sentencing] Guidelines is applied to increase a defendant=s punishment on account

of a kind of harm that has already been fully accounted for by application of

another part of the Guidelines.@ United States v. Cubero, 

, 894 (11th

Cir.) (internal quotation marks omitted), cert. denied, 

(2014). But

      [d]ouble counting a factor during sentencing is permitted if the
      Sentencing Commission intended that result and each guideline
      section in question concerns conceptually separate notions relating to
      sentencing. We presume that the Commission intended to apply
      separate sections cumulatively unless otherwise specified, and, as a
      result, a defendant asserting a double counting claim has a tough task.

(citations, internal quotation marks omitted).

      Applying both the trafficking and the exporting enhancements to Asante was

not impermissible double-counting. We start with the presumption that the

Sentencing Commission intended that these two enhancements, listed separately in

U.S.S.G. ' 2K2.1, be applied cumulatively. See 

. Next,

adopting the reasoning of United States v. Villa Carvajal, 516 F. App=x 808, 811

(11th Cir. 2013) (per curiam) (unpublished), we conclude that each of these

enhancements addresses Aconceptually separate notions relating to sentencing,@

. Villa-Carvajal reasoned that the trafficking and
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exporting enhancements Aaddress two different kinds of harm.@ 516 F. App=x at

811. The trafficking enhancement increases a firearm offender=s offense level for

conduct that he knows or has reason to believe will result in a firearm being

transferred to someone whose possession or use of that weapon is unlawful,

regardless of whether that unlawful use or possession occurs in or out of the United

States. 

enhancement, on the other hand, is concerned instead

with a firearm offender=s conduct undertaken with the intent to export firearms out

of the United States, even if the offender was not trafficking (meaning he did not

know or have a reason to believe that the weapon would be possessed or used by

another unlawfully). 

two enhancements are aimed at different

harms, neither enhancement Afully account[s]@ for both harms, Cubero, 

, 894. See United States v. White, 

, 1217 (11th Cir. 2011).

Therefore, applying both enhancements to Asante did not amount to impermissible

double-counting. See Villa Carvajal, 516 F. App=x at 811; see also United States v.

Mendoza, 556 F. App=x 326, 327 (5th Cir. 2014) (per curiam) (unpublished)

(rejecting similar double-counting argument).

II. Asante=s sentence is not substantively unreasonable

      Properly including the four-level enhancement for trafficking firearms and

the four-level enhancement for exporting firearms, the district court calculated


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Asante=s offense level to be 21 and his criminal history category to be III, resulting

in an advisory guideline range of forty-six to fifty-seven months in prison. The

district court imposed a sentence at the bottom of that range, forty-six months, for

each of Asante=s two convictions, to run concurrently.

      Asante contends that this sentence was substantively unreasonable. We

review the substantive reasonableness of a sentence for an abuse of discretion. See

United States v. Baldwin, 

, 729 (11th Cir. 2014). In doing so, we will

Anot automatically presume a sentence within the guidelines range is reasonable,@

but we Aordinarily expect a sentence within the Guidelines range to be reasonable.@

United States v. Hunt, 

, 746 (11th Cir. 2008) (internal quotation

marks, alteration omitted). We Awill remand for resentencing only if the district

court committed a clear error of judgment in weighing the [18 U.S.C.] ' 3553(a)

[sentencing] factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.@ 

(internal quotation marks omitted). It is Asante=s burden to show that his sentence

is substantively unreasonable. See 

      Asante has not met his burden. Before sentencing Asante to forty-six

months in prison, the district court considered and discussed the ' 3553(a) factors

and rejected Asante=s request for a sentence below the guidelines advisory range.


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In doing so, the court noted that Asante=s relevant offense conduct, particularly in

exporting firearms outside the United States, was very serious; a significant

sentence was necessary to deter others from sending illegal firearms to poor

countries; Asante=s prior criminal history, though nonviolent, Awas not very

good@6; even though Asante apologized, he did not really appear remorseful; and

the fact that Asante had a wife and two young daughters did not warrant a below-

guideline sentence. The district court, thus, carefully weighed the ' 3553(a)

factors before imposing a sentence within, but at the bottom of, the advisory

guideline range. We cannot say that sentence was the product of a Aclear error of

judgment,@ nor that it was Aoutside the range of reasonable sentences dictated by

the facts of th[is] case,@ 

.

III. The district court did not abuse its discretion in refusing to redact from
the PSR information that Asante threatened the prosecutor and a magistrate
judge

       Lastly, Asante argues that the district court should have redacted information

in the PSR indicating that Asante, during a phone call he made from jail to his

wife, threatened the prosecutor and the magistrate judge who denied Asante

       6
          Asante had five prior convictions: forging coin and bank notes; obtaining money under
false pretenses; two convictions for marijuana possession; and manufacturing a controlled
substance, cocaine. Asante had two additional convictions for driving while his license was
revoked or suspended, and an additional nine traffic citations. Within one year of entering the
United States to study, at age nineteen, Asante had already been convicted of forging coin and
bank notes.


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pretrial release. Although the district court did not consider the threats when it

sentenced Asante, the court nevertheless refused to redact this information, ruling

it was important information for the Bureau of Prisons to have.

      As a general matter, 18 U.S.C. ' 3661 provides that A[n]o limitation shall be

placed on the information concerning the background, character, and conduct of a

person convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.@ Furthermore, Fed.

R. Crim. P. 32(d)(2)(A) requires the PSR to include information about the

defendant=s history and characteristics, including Aany circumstances affecting the

defendant=s behavior that may be helpful in imposing sentence or in correctional

treatment,@ Rule 32(d)(2)(A)(iii). Rule 32(d)(3), on the other hand, excludes only

three narrow categories of information from the PSR: 1) Aany diagnoses that, if

disclosed, might seriously disrupt a rehabilitation program@; 2) Aany sources of

information obtained upon a promise of confidentiality@; and 3) Aany other

information that, if disclosed, might result in physical or other harm to the

defendant or others.@

      The information at issue here, Asante=s threats against the prosecutor and

magistrate judge, does not fall into any of the categories of information that cannot

be included in the PSR. Cf. United States v. Bartlett, 416 F. App=x 508, 510-11


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(6th Cir. 2011) (unpublished) (holding accusation that defendant had sexually

assaulted a child, without more, is too speculative to fall within Rule 32(d)(3)(C)=s

exclusion of information that might harm the defendant). Arguably its falls into

the category of information regarding Asante=s history and characteristics which

Fed. R. Crim. P. 32(d)(2)(A) requires the PSR to contain. But even if the rules do

not require the PSR to contain the information about Asante=s threats, the district

court had discretion to include it in the PSR. See Bartlett, 416 F. App=x at 510-11;

United States v. Bahr, No. 3:11-CR-00028-BR, 

, at *7-*9 (D.

Or. Sept. 15, 2014). And the court did not abuse its discretion here in refusing to

redact from the PSR the information about the threats.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM Asante=s concurrent forty-six-month

sentences and the district court=s decision not to redact from the PSR information

regarding threats Asante made against the prosecutor and a magistrate judge.




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