United States v. Brentis Hendrix , 284 F. App'x 733 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 03, 2008
No. 07-15917 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00026-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENTIS HENDRIX,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 3, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Brentis Hendrix appeals his 144-month sentence after pleading
guilty to conspiracy to possess with intent to distribute and to distribute crack and
powder cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and 18 U.S.C. § 2.
On appeal, he first argues that the court erred by failing to depart downward under
the Guidelines on the ground that his criminal history was substantially over-
represented. Second, he argues that his sentence was unreasonable because:
application of the career offender enhancement was “arbitrary”; the court did not
adequately consider his substantial-assistance efforts; the court did not adequately
consider his family support, educational background, and drug addiction; the court
imposed a sentence greater than necessary by making his sentence run
consecutively to a sentence imposed in connection with the revocation of his
parole; and the court gave the Guidelines too much weight.
I. Downward Departure
We lack “jurisdiction to review a sentencing judge’s denial of a downward
departure unless it was made based upon belief that he or she did not possess the
discretionary authority to depart downward.” United States v. Liss, 265 F.3d 1220,
1227 (11th Cir. 2001); accord United States v. Calderon, 127 F.3d 1314, 1342
(11th Cir. 1997) (refusing to review the denial of a downward departure where
there was nothing to indicate that the court misapprehended the scope of its
authority).
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After reviewing the record and reading the parties’ briefs, we conclude that
we lack jurisdiction to consider Hendrix’s argument that the court erred by failing
to depart under U.S.S.G. § 4A1.3(b) because there is nothing in the record to
indicate that the court believed that it lacked the authority to depart. In addition,
Hendrix does not sufficiently argue on appeal that the court erred by failing to
depart downward under U.S.S.G. § 5K2.0, and, therefore, has abandoned the issue.
See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006), cert. denied,
127 S. Ct. 2446 (2007).
II. Reasonableness
We review a defendant’s sentence for reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. __, __, __, __, 128 S. Ct. 586,
591, 594, 597, 169 L. Ed. 2d 445 (2007); United States v. Pugh, 515 F.3d 1179,
1190 (11th Cir. 2008). “[A]fter giving both parties an opportunity to argue for
whatever sentence they deem appropriate, the district judge should then consider
all of the § 3553(a) factors to determine whether they support the sentence
requested by a party.” Gall, 552 U.S. at __, 128 S. Ct. at 596. Pursuant to §
3553(a), the sentencing court shall impose a sentence “sufficient, but not greater
than necessary, to comply with the purposes set forth in paragraph (2) of this
subsection,” namely, to reflect the seriousness of the offense, promote respect for
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the law, provide just punishment for the offense, deter criminal conduct, protect the
public from future crimes of the defendant, and provide the defendant with needed
educational or vocational training or medical care. See 18 U.S.C. § 3553(a)(2).
The sentencing court must also consider the following factors in determining a
particular sentence: the nature and circumstances of the offense and the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
It is sufficient for the district court to acknowledge that it has considered the
§ 3553(a) factors, but it need not explicitly discuss each of them. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). After considering the § 3553(a)
factors, the court “must make an individualized assessment based on the facts
presented.” Gall, 552 U.S. __, 128 S. Ct. at 597. We have recognized that “there
is a range of reasonable sentences from which the district court may choose.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We conclude from the record that the district court did not abuse its
discretion in this case because it considered the § 3553(a) factors, conducted an
individualized analysis of Hendrix’s personal history and characteristics, and did
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not give the Guidelines too much weight. Hendrix has provided no authority to
support his arguments that his sentence was unreasonable on the grounds that the
career offender guideline was “arbitrary,” the court did not adequately consider his
substantial-assistance efforts, and the court did not adequately consider his pending
state parole revocation. Accordingly, we affirm Hendrix’s sentence.
AFFIRMED.
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