United States v. Alexander Russaw , 310 F. App'x 320 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14169 FEB 05, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00216-CR-F-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER RUSSAW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(February 5, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Alexander Russaw appeals from his 71-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Russaw
argues that: (1) his sentence was procedurally unreasonable because the district
court relied too heavily on the advisory sentencing range, did not adequately
explain the basis for the sentence, and speculated as to whether he would be
charged with attempted murder;1 and (2) his sentence was substantively
unreasonable because his sentence was greater than necessary. After thorough
review, we affirm.
Generally, we review a sentence a district court imposes for
“reasonableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). In reviewing sentences for
reasonableness, we perform two steps. Pugh, 515 F.3d at 1190. First, we must
“‘ensure that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).2 If we
1
Russaw also argued in his reply brief that the district court failed to comply with 18
U.S.C. § 3553(c)(1). However, this argument was waived because it was not raised in his initial
brief on appeal. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004).
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
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conclude that the district court did not procedurally err, we must consider the
“‘substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,’” based on the “‘totality of the circumstances.’” Id. (quoting Gall, 128 S.
Ct. at 597). “The party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both th[e] record and
the factors in section 3553(a).” United States v. Thomas, 446 F.3d 1348, 1351
(11th Cir. 2006) (internal quotation omitted). “[W]hen the district court imposes a
sentence within the advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
In complying with § 3553(c), “[t]he sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.”
Rita, 127 S. Ct. at 2468. However, “[t]he appropriateness of . . . what to say,
depends upon [the] circumstances.” Id. Generally, when sentencing inside the
advisory guideline range, the district court is not required to state explicitly that it
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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has considered each of the § 3553(a) factors in open court, or give a lengthy
explanation for its sentence. See United States v. Agbai, 497 F.3d 1226, 1230
(11th Cir. 2007) (citing Rita, 127 S. Ct. at 2468-69).
First, we reject Russaw’s claim that his sentence was procedurally
unreasonable. Our review of the record shows that the district court adequately
considered the § 3553(a)(1) factors, noting that the sentence was based upon the
statutory factors and explaining which factors influenced the sentence. Agbai, 497
F.3d at 1230. In addition, the district court considered Russaw’s mitigating
evidence, including his difficult childhood along with his criminal history, and said
that it was sympathetic towards Russaw’s past and recommended that he receive
mental health treatment. Moreover, the district court did not appear to place undue
weight on the guideline sentencing range because it acknowledged that the range
was advisory, and explained which factors it was considering. Nor did the district
court place undue weight on Russaw’s criminal record because the district court
discussed other sentencing factors when it explained why it considered a sentence
of 71 months’ imprisonment to be appropriate. Finally, any speculation by the
district court as to whether Russaw would be charged with attempted murder did
not appear to be the basis for the sentence. On this record, Russaw has not shown
that his sentence was procedurally unreasonable.
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We likewise do not agree with Russaw that his sentence was substantively
unreasonable. As the record shows, Russaw has an extensive criminal record and
anger-management problems; the offense involved Russaw shooting a firearm at
someone; and there is a need to provide him help and to protect society from him.
Considering these factors, a sentence of 71 months’ imprisonment, which was at
the top of the advisory guideline range, does not appear to be unreasonable. Nor is
there any indication, as discussed above, that the district court considered only one
factor from § 3553(a)(1). Further, Russaw was sentenced within the advisory
guideline sentencing range, and we expect a sentence within the guideline
sentencing range to be reasonable. Talley, 431 F.3d at 788. Accordingly, Russaw
did not carry his burden to show that his sentence was unreasonable. Id.AFFIRMED.
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