United States v. Danny Antonio Sellers ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 23, 2009
No. 08-16721 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00047-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY ANTONIO SELLERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 23, 2009)
Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Danny Antonio Sellers appeals his 240-month sentence for
convictions of conspiracy to possess with intent to distribute more than 50 grams
of crack cocaine, in violation of 21 U.S.C. § 846, and possession with intent to
distribute less than 5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
On appeal, Sellers argues that the district court incorrectly calculated his
sentencing guideline range because it erroneously attributed to him at least 1.5
kilograms of cocaine base as relevant conduct. Sellers further argues that his
sentence is substantively unreasonable.
When reviewing a sentence imposed by a district court, we ordinarily must
first ensure that the district court correctly calculated the guideline range. United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We review a district
court’s interpretation of the Guidelines de novo, and “its factual findings for clear
error.” United States v. Vance, 494 F.3d 985, 994 (11th Cir. 2007). The quantity
of drugs attributable to a defendant under the Guidelines is a question of fact that
we review for clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th
Cir. 2005).
After determining that the district court correctly calculated the guideline
range, we then review the sentence for reasonableness in light of the factors set
forth in 18 U.S.C. § 3553(a). United States v. Martin, 455 F.3d 1227, 1237 (11th
Cir. 2006). The reasonableness of a sentence is reviewed under a deferential
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abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189 (11th
Cir. 2008) (citing Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597, 169
L. Ed. 2d 445 (2007)). Under the abuse-of-discretion standard, we will only
reverse if the district court made a clear error in judgment. Pugh at 1191. The
party challenging the sentence ultimately “bears the burden of establishing that the
sentence is unreasonable in light of both [the] record and the factors in section
3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
A sentence may be reviewed for procedural or substantive unreasonableness.
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence is
procedurally unreasonable if the district court (1) improperly calculated the
guidelines range, (2) selected a sentence based on clearly erroneous facts, (3)
treated the Guidelines as mandatory, (4) failed to consider the § 3353(a) sentencing
factors, or (5) failed to adequately explain the reasons for the chosen sentence.
Gall, 552 U.S. at ___, 128 S. Ct. at 597; United States v. Williams, 526 F.3d 1312,
1322 (11th Cir. 2008). Where a district court has indicated that it would have
imposed the same sentence regardless of a particular guidelines calculation,
however, we may decline to decide a disputed guideline issue or remand the case
for new sentence proceedings where the guideline error, if any, did not affect the
ultimate sentence imposed. See United States v. Keene, 470 F.3d 1347, 1348–49
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(11th Cir. 2006). Under such circumstances, we will, if necessary, proceed to
examine whether the defendant’s sentence is reasonable in light of the guideline
range calculated without the procedural Guidelines error. Id. at 1349-50.
Substantive reasonableness is determined with reference to the factors listed
in 18 U.S.C. § 3553(a). Williams, 526 F.3d at 1322. The statutory factors include:
(1) the nature and circumstances of the offense; (2) the history and characteristics
of the accused; (3) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (4) the need for
deterrence; (5) the need to protect the public; (6) the kinds of sentences available;
(7) the sentencing guidelines range; and (8) the need to avoid unwarranted
sentencing disparities among similarly situated defendants. 18 U.S.C. § 3553(a);
see also Williams, 526 F.3d at 1322. We have recognized that “there is a range of
reasonable sentences from which the district court may choose,” and the fact that
we might reasonably conclude that a different sentence is appropriate is not
sufficient to warrant reversal. Talley, 431 F.3d at 788; Williams, 526 F.3d at 1322.
Based on our review of the record, we conclude that Sellers has failed to
carry his burden of showing that the district court committed a clear error in
judgment or that his sentence is substantively unreasonable. Because the district
court indicated that it would have imposed the same sentence regardless of a
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particular guidelines calculation, any potential error was rendered harmless.
Accordingly, we decline to address the drug quantity issue. For the above-stated
reasons, we affirm Sellers’s sentence.
AFFIRMED.
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