[DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13229
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cr-00391-SDM-JSS-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

CHRISTOPHER BOWEN BALFREY,
a.k.a. Bo,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 19, 2017)

Before HULL, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:
      Christopher Bowen Balfrey appeals the 151-month sentence he received

after pleading guilty to weapons and drug-trafficking charges. After careful

review, we affirm.

                                          I.

      On February 8, 2016, Christopher Balfrey pled guilty to one count of

conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

and 846; two counts of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e); and one count of possessing a firearm in

furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).

      The presentence investigation report (“PSR”) determined Balfrey should be

sentenced as a career offender because of his prior Florida felony convictions for

robbery and delivery of cocaine. See United States Sentencing Guidelines

§ 4B1.1(a) (“A defendant is a career offender if . . . the defendant has at least two

prior felony convictions of either a crime of violence or a controlled substance

offense.”). Based on his career-offender status, the PSR calculated a base offense

level of 32, which it reduced by three levels for acceptance of responsibility,

resulting in a total offense level of 29. The PSR assigned Balfrey a criminal

history category of VI, as required for all defendants subject to the career-offender

enhancement. 

Based on his offense level and criminal history

category, Balfrey’s guideline range was 151 to 188 months imprisonment. In


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addition, the PSR determined Balfrey was subject to a consecutive, mandatory-

minimum sentence of 60 months for his conviction for possession of a firearm in

furtherance of a drug-trafficking crime. See 18 U.S.C. §§ 924(c)(1)(A)(i), (D)(ii)

(imposing a consecutive “term of imprisonment of not less than 5 years” for any

person convicted of possessing a firearm in furtherance of a drug-trafficking

crime).

      At sentencing, the district court adopted the PSR’s calculation of Balfrey’s

guideline range. Balfrey argued for a below-guideline sentence “in the range of 10

years or less.” Balfrey said his career-offender status overstated his actual criminal

history and risk of recidivism because he was a minor when he committed both of

the prior felonies that resulted in these convictions. In response, the government

argued for a sentence of 151-months imprisonment plus the 60-month consecutive

term required under § 924(c). The government emphasized that Balfrey was not a

“low level dealer” and is “a violent person,” as evidenced by his prior conviction

for robbery. The government also mentioned Balfrey’s refusal to enter into a plea

agreement or otherwise cooperate with the government. The government said that

Balfrey’s decision not to cooperate is the reason “why . . . [he is] looking at the

guideline terms that he is.” The district court then continued the sentencing for

several weeks to allow Balfrey a chance to reconsider whether he wanted to

cooperate with the government.


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      When sentencing resumed, Balfrey told the court he still did not wish to

cooperate with the government. Balfrey’s counsel stressed that Balfrey did not

want the court to think he had been insincere in reconsidering whether to

cooperate. In response to this, the district court said:

      Actually, I give no consideration to any of it one way or the other.
      And I don’t have any part and don’t accept any part in any of the
      discussions between [the] United States and the defense or make any
      speculations or any findings about who was trying to do what to
      whom.

The court then proceeded with sentencing. The court “considered the [sentencing]

factors at 18 U.S.C. [§] 3553.” The court found that Balfrey’s convictions were for

“serious offenses that represent an example of a serious and persistent form of

conduct that threatens the community.” But the court also recognized that

Balfrey’s only prior convictions were for crimes he committed “as a younger

person,” and that he “had some number of adult years of improved conduct” since

committing those earlier crimes. In light of these “extenuating circumstances,” the

court sentenced Balfrey to a below-guideline sentence of 91 months, plus the 60-

month mandatory consecutive term, for a total sentence of 151-months

imprisonment.

                                           II.

      Balfrey first argues the district court erred in finding that his prior Florida

conviction for robbery, Fla Stat. § 812.13(1), is a predicate offense for the career-


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offender enhancement. As Balfrey acknowledges, he did not raise this objection

below, so our review is for plain error. See United States v. Aguillard, 

, 1320 (11th Cir. 2000) (per curiam).

       This Court has already considered whether Florida robbery constitutes a

“crime of violence” for purposes of the career-offender enhancement, and we held

that it does. United Sates v. Lockley, 

, 1241–45 (11th Cir. 2011).

We are bound by Lockley. 1

       In arguing that Florida robbery is not a “crime of violence,” Balfrey cites the

Supreme Court’s decision in Johnson v. United States, 576 U.S. ___, 

(2015). Johnson struck down as unconstitutionally vague the so-called

“residual clause,” which gave one definition of what a “violent felony” is under the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). 

Balfrey

appears to argue that, in light of Johnson, Florida robbery is no longer a “crime of

violence” under the identical residual clause in the Sentencing Guidelines. See

USSG § 4B1.2(a)(2) (2014). However, the Supreme Court held in Beckles v.

United States, 580 U.S. ___, 

(2017), that “the advisory Guidelines

are not subject to vagueness challenges under the Due Process Clause.” 

Because Balfrey’s career-offender enhancement was imposed under the advisory
       1
         We have noted that “the prior panel precedent rule does not bind us to follow” an earlier
decision “[i]f state law changes or is clarified in a way that is inconsistent with the state law
premise” of that decision. United States v. Johnson, 

, 1320 (11th Cir. 2008), rev’d
and remanded on other grounds, 

, 

(2010). Balfrey does not argue
that Lockley is inconsistent with intervening state law.
                                                5
guidelines, he cannot bring a vagueness challenge. See 

result, his Florida

robbery conviction remains a valid predicate for the career-offender enhancement

under Lockley.

                                         III.

      Next, Balfrey argues his sentence is both procedurally and substantively

unreasonable. We review the reasonableness of a sentence for an abuse of

discretion. United States v. Turner, 

, 573 (11th Cir. 2010) (per

curiam).

      Balfrey says his sentence was procedurally unreasonable because the district

court, in determining his sentence, took his failure to cooperate with the

government into consideration. The record shows otherwise. In discussing

Balfrey’s decision not to cooperate, the district court expressly said: “I give no

consideration to any of it one way or the other.” But, even if the district court had

considered Balfrey’s refusal to cooperate, this Court has held that “a court is

absolutely entitled to consider a defendant’s failure to cooperate at the time of

sentencing.” United States v. Malekzadeh, 

, 1498 (11th Cir. 1988).

Therefore, Balfrey’s sentence was not procedurally unreasonable.

      Finally, Balfrey challenges his sentence on the ground that it was

substantively unreasonable. The district court must “impose a sentence sufficient,

but not greater than necessary, to comply with the purposes” listed in 18 U.S.C.


                                          6
§ 3553(a)(2), including the need to reflect the seriousness of the offense, deter

criminal conduct, and protect the public from the defendant. 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

nature and circumstances of the offense, and the history and characteristics of the

defendant, among other things. See 

(3)–(7). The weight given

to any specific factor “is committed to the sound discretion of the district court.”

United States v. Dougherty, 

, 1361 (11th Cir. 2014). However, “[a]

district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 

, 1189 (11th

Cir. 2010) (en banc) (quotation omitted).

       Balfrey says his sentence is substantively unreasonable because the district

court failed to properly consider the fact that his prior offenses were committed

when he was a teenager and he had no criminal activity for ten years after those

offenses early in his life.2 But the record shows the district court did take these

factors into account. The court recognized that Balfrey’s only prior convictions

were for crimes he committed “as a younger person.” The court also recognized


       2
          It is not clear whether Balfrey also raises the district court’s alleged reliance on his
decision not to cooperate as a claim of substantive unreasonableness. To the extent he does, we
reject that argument for the same reasons set out above.
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that he had “some number of adult years of improved conduct.” It was precisely

because of these “extenuating circumstances” that the court sentenced Balfrey to a

below-guideline sentence.

      Because the district court did consider these mitigating factors, Balfrey is

essentially arguing that the district court did not accord enough weight to them.

However, the weight given to any particular factor under § 3553(a) is “committed

to the sound discretion of the district court.” 

.

Therefore, on this record, we cannot say the district court abused its discretion.

      AFFIRMED.




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