United States v. Donnie Atkins , 346 F. App'x 479 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 25, 2009
No. 08-16741 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00010-CR-01-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE ATKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 25, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Donnie Atkins appeals his 308-month sentence for armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a) and (d) and 2, and discharge of a firearm during
a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). On appeal, he
argues that the district court erred by increasing his offense level pursuant to
U.S.S.G. § 2B3.1(b)(7)(C) based on the sum of money stored inside the bank vault
because there was no evidence that he could have accessed the vault before fleeing
the bank. In applying § 2B3.1(b)(7), the district court included the money stored
inside the vault, pursuant to U.S.S.G. § 2X1.1, because it found that Atkins
intended to steal the money stored inside the vault. The government responds that
the district court correctly applied § 2B3.1(b)(7)(C). In the alternative, it argues
that any error was harmless because (1) the court stated that it would have imposed
the same sentence despite the guideline calculation, and (2) the sentence was
reasonable.
As a preliminary matter, we need not determine whether the district court
erred in its assessment of the loss amount under § 2B3.1(b)(7)(C) because, as the
government argues, the district court stated that it would have imposed the same
sentence regardless of the guideline calculation, and the sentence was reasonable.
In United States v. Tampas, we held that any error in the district court’s loss
calculation was harmless error because the loss amount enhancement did not affect
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the defendant’s sentence. 493 F.3d 1291, 1305 (11th Cir. 2007) (reasoning that the
district court stated that it would have imposed the same sentence (regardless of the
loss calculation recommended by the Guidelines), recognized the advisory nature
of the Guidelines, stated that the sentence complied with the 18 U.S.C. § 3553(a)
factors, and imposed a sentence within the statutory maximum). However, we
have also instructed that a district court’s statement that a disputed guidelines issue
was irrelevant because the sentence was imposed in consideration of the 18 U.S.C.
§ 3553(a) factors did not render appellate review moot. United States v. Keene,
470 F.3d 1347, 1349 (11th Cir. 2006). This is so because the sentence imposed,
assuming error in the guideline calculation, still must be substantively reasonable.
Id.Reasonableness review requires the application of an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445(2007). “In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.
2006). “We may find that a district court has abused its considerable discretion if
it has weighed the factors in a manner that demonstrably yields an unreasonable
sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). We have
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held that comparing the sentence imposed against the statutory maximum sentence
is one indication of reasonableness. United States v. Valnor, 451 F.3d 744, 751-52
(11th Cir. 2006).
“[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The
§ 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for
the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or
medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines
range; (8) pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwanted sentencing disparities; and (10) the need to provide restitution
to victims. Id. at 786 (summarizing 18 U.S.C. § 3553(a)).
Atkins’s sentence, even assuming error, was substantively reasonable. The
sentence was well-within the statutory maximum sentence and imposed in
consideration of Atkins’s extensive criminal record, the violent nature of his
offense, and the need to promote deterrence. Thus, any error in the district court’s
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valuation of the loss amount was harmless error.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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