United States v. Dakota Harris, Jr. , 266 F. App'x 841 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 21, 2008
No. 07-12412 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00048-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAKOTA HARRIS, JR.,
a.k.a. June,
a.k.a. John,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 21, 2008)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Dakota Harris appeals his 188-month sentence for conspiracy to
manufacture, distribute and possess with intent to distribute less than 500 grams of
cocaine, in violation of 18 U.S.C. § 846. Harris contends that his sentence is
procedurally unreasonable because the district court did not state that the sentence
it imposed was “not greater than necessary” to comply with the purposes of 18
U.S.C. § 3553(a).1
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), we
review a defendant’s sentence for reasonableness. United States v. Winingear, 422
F.3d 1241, 1244 (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). When reviewing the sentence for procedural reasonableness, 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 [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S.___, 128 S. Ct. 586,
597 (2007).
1
Harris also mentioned in his brief that his sentence was “substantively unreasonable,”
but provided no support for this argument. A party seeking to raise a claim or issue on appeal
must raise it “plainly and prominently” or the issue is deemed abandoned. United States v.
Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003). Since Harris makes only a passing reference
to the substantive unreasonableness of his sentence, we deem the issue abandoned and will not
address it here. See id.
2
“The 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 v. United States,
___U.S.___, 127 S. Ct. 2456, 2468 (2007). Generally, when sentencing inside the
advisory guideline range, the district court is required neither to state explicitly that
it has considered each of the § 3553(a) factors in open court, nor to give a lengthy
explanation for its sentence. See United States v. Agbai, 497 F.3d 1226, 1230
(11th Cir. 2007) (citing Rita, ___U.S. at___, 127 S. Ct. at 2468–69); see also
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (“[N]othing in Booker
or elsewhere requires 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.”).
18 U.S.C. § 3553(a) provides that the district court “shall impose a sentence
that is sufficient, but not greater than necessary,” to comply with 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 educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.
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18 U.S.C. § 3553(a). Other factors that the sentencing court should consider under
§ 3553(a) include the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guidelines range, and policy statements of the Sentencing Commission. See
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C. §
3553(a)).
Harris contends that his sentence was procedurally unreasonable because the
district court failed to state that the sentence it imposed was “not greater than
necessary” to comply with the purposes of 18 U.S.C. § 3553(a). In deciding to
sentence Harris to 188 months imprisonment, at the bottom of the guidelines range,
the district court specifically stated that it had considered the § 3553(a) factors, the
advisory guidelines range, and the Sentencing Commission’s policy statements.
The court then announced that it had “tailored the sentence to take into account the
facts and circumstances surrounding this particular case.” The court’s failure to
explicitly mention the “not greater than necessary” language in § 3553(a) alone
does not demonstrate that the court imposed a sentence in a procedurally
unreasonable manner. See Agbai, 497 F.3d at 1230; Scott, 426 F.3d at 1329.
Harris has therefore failed to show that the sentence was not the product of
reasoned decision making, and we affirm the sentence as procedurally reasonable.
4
AFFIRMED.
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