United States v. Vincent Ferguson , 156 F. App'x 175 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 28, 2005
No. 05-12671 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60296-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT FERGUSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 28, 2005)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Vincent Ferguson appeals his 168-month sentence for conspiracy to import
cocaine, in violation of 21 U.S.C. § 963. On appeal, Ferguson argues that the
Supreme Court’s decision in United States v. Booker, 543 U.S. ___, ___, 125 S.Ct.
738, 765, 160 L.Ed.2d 621 (2005), requires that district courts use the Sentencing
Guidelines as one of several factors of 18 U.S.C. § 3553(a) in determining a
sentence’s reasonableness, with no one factor bearing more weight then another.
He contends that the district court’s claim that it considered all of the § 3553(a)
factors in sentencing him is not supported, and the district court stating that the
guidelines were advisory did not equal the § 3553 analysis required by Booker.
Ferguson also argues that the district court did not consider whether the statutory
minimum sentence of 120 months’ imprisonment would be sufficient. He states
that the district court relied too heavily on § 3553(a)(4), the Sentencing Guideline
range factor, and the court’s only analytical comment was with regard to the large
amount of cocaine involved, which Ferguson points out was seized, and so never
ruined anyone’s life. He contends that a sentence within the proper guideline range
is not per se reasonable and that judges need to “provide a reasoned explanation”
for their decisions. Finally, Ferguson argues that Booker suggests that a sentence
would be unreasonable without a substantive § 3553(a) analysis.
In Booker, the Supreme Court held that "[a]ny fact (other than a prior
2
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at
756. Further, to best preserve Congress’s intent in enacting the Sentencing Reform
Act of 1984, two specific sections of the Act were excised—18 U.S.C.
§ 3553(b)(1) and 18 U.S.C. § 3742(e)—thereby effectively rendering the
Sentencing Guidelines advisory. Id. at 764. After Booker, we review sentences
under the advisory guideline regime for “unreasonable[ness].” Id. at 765.
Under the new advisory guidelines scheme, the Supreme Court directed
sentencing courts to consider the following factors in imposing sentences:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed [treatment]; (3)the kinds of sentences available; (4) the
kinds of sentence and the sentencing range. . .;(6) the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and (7) the
need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); Booker, 543 U.S. at , 125 S.Ct. at 765-66. There is no
requirement, however, that the district court engage in a detailed, step-by-step
analysis of every factor, as we have held, “nothing in Booker or elsewhere requires
3
the district court to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.
Scott, No. 05-11843, man. op. at 11-12 (11th Cir. Sept. 27, 2005).
Upon review of the record and the sentencing transcripts, and upon
consideration of the briefs of the parties, we discern no reversible error.
At sentencing, Ferguson noted that he had no objections to the calculation of
the guideline range, but argued that, since § 3553 states that “a sentence should be
sufficient but not greater then necessary to promote the purpose of sentencing,” as a
41 year old, first time offender, he should receive the statutory minimum term of
imprisonment of 120 months, which was “very stiff,” despite the fact that it was
below what the guidelines recommended. He also emphasized that, based on his
lack of a criminal history there was no likelihood of recidivism and that, as an alien,
he would not be able to take advantage of the Bureau of Prison’s drug program or
community confinement, which typically reduce incarceration time. The district
court, upon considering the advisory guideline range and the § 3553 factors,
rejected the lower statutory minimum requested by Ferguson, stating:
The court recognizes that this defendant had no criminal history, and
on its face the request would appear to be reasonable. But the court is
troubled by the amount of cocaine that was involved in this case, 600
kilograms...that amount of cocaine can certainly ruin a lot of
lives...The court finds it difficult to go below that 168 month bottom
[of the guideline range] even in spite of the very persuasive argument
4
made by [defense counsel]. . . The court feels that a sentence at the low
end of the guidelines would sufficiently punish Mr. Ferguson and also
deter others....
Accordingly, the district court sentenced Ferguson to 168 months’ imprisonment.
In light of (1) caselaw from this Court, which does not require a district court
to discuss or explicitly state that it has considered each § 3553(a) factor, and (2) the
district court’s implicit consideration of most of the § 3553 factors, Ferguson’s
sentence was not unreasonable. Accordingly, we conclude that the district court did
not impose an unreasonable sentence. We, therefore, affirm.
AFFIRMED.
5