EBEL, Circuit Judge:
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
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 a scheme whereby Asante, who could not lawfully possess a firearm, would pay his co-defendant, Johnny White, to buy weapons for Asante.
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.
When, as here, "the 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, 752 F.3d 1291, 1305 (11th Cir.2014) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 990, 190 L.Ed.2d 869 (2015). This court reviews the district court's application of the sentencing guidelines de novo and its factual findings for clear error. See id.
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 ("ATF") questioned White about nine guns he had purchased during an eight-month period. White explained that he had purchased most of those weapons — five to seven guns — for a friend who could not buy firearms himself.
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.
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 "engaged 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).
The Government could first prove that the defendant "[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." Id., app. n. 13(A)(ii)(I). The guidelines narrowly define an "[i]ndividual whose possession or receipt of the firearm would be unlawful" to "mean[] an individual
The second way the trafficking enhancement can apply is if the Government proves that the defendant "[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." Id., app. n. 13(A)(ii)(II). 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 "[k]new or had reason to believe" that his conduct would result in the transfer of a firearm to someone "[w]ho intended to use or dispose of the firearm unlawfully." Id. Critically, in 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 Fed.Appx. 962, 963 (11th Cir. 2014) (per curiam) (unpublished). Those circumstances included the following:
Id. From these circumstances, we held that the sentencing
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 Fed.Appx. 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 "who intended to use or dispose of the firearm unlawfully." Id. at 747. Still, we upheld applying the trafficking enhancement because the evidence established that West "`had reason to believe' that the undercover officers would take the guns to the New York area and resell them to individuals who would dispose of or use them illegally." Id. That evidence included the following:
Id.; see also United States v. McMillar, 518 Fed.Appx. 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 Fed. Appx. 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 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 "make it look legit").
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).
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 States v. Flanders, 752 F.3d 1317, 1339 (11th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1188, ___ L.Ed.2d ___ (2015).
"Impermissible 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, 754 F.3d 888, 894 (11th Cir.) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 135 S.Ct. 764, 190 L.Ed.2d 636 (2014). But
Flanders, 752 F.3d at 1340 (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 Flanders, 752 F.3d at 1340. Next, adopting the reasoning of United States v. Villa Carvajal, 516 Fed.Appx. 808, 811 (11th Cir.2013) (per curiam) (unpublished), we conclude that each of these enhancements addresses "conceptually separate notions relating to sentencing," Flanders, 752 F.3d at 1340. Villa-Carvajal reasoned that the trafficking and exporting enhancements "address two different kinds of harm." 516 Fed.Appx. 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. Id. The exporting 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
Properly including the four-level enhancement for trafficking firearms and the four-level enhancement for exporting firearms, the district court calculated 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, 774 F.3d 711, 729 (11th Cir.2014). In doing so, we will "not automatically presume a sentence within the guidelines range is reasonable," but we "ordinarily expect a sentence within the Guidelines range to be reasonable." United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008) (internal quotation marks, alteration omitted). We "will 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." Baldwin, 774 F.3d at 731 (internal quotation marks omitted). It is Asante's burden to show that his sentence is substantively unreasonable. See id. at 731-32.
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. 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, "was not very good"
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 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 "[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 "any 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) "any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program"; 2) "any sources of information obtained upon a promise of confidentiality"; and 3) "any 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 Fed.Appx. 508, 510-11 (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 Fed.Appx. at 510-11; United States v. Bahr, No. 3:11-CR-00028-BR, 2014 WL 4631198, 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.
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.
U.S.S.G. § 21(2.1, app. n. 13(A).