United States v. Pavis Levar Gray , 284 F. App'x 775 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 8, 2008
No. 08-10045
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00165-CR-ORL-31DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAVIS LEVAR GRAY,
a.k.a. Chiz, etc.
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Pavis Levar Gray appeals his 188-month sentence imposed after he pled
guilty to conspiracy to possess with the intent to distribute 5 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(iii), possession
with the intent to distribute 5 grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2, being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
(e)(1), and possession with the intent to distribute and distribution of 5 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). Gray
asserts his sentence was procedurally unreasonable because the district court
erroneously concluded it could not consider his arguments concerning alleged
inappropriate Government conduct and sentence manipulation, which he argues
related to the nature and circumstances of his offense.
We review the final sentence imposed by the district court for
reasonableness. United States v. Booker, 125 S. Ct. 738, 767 (2005). Specifically,
the district court must impose a sentence that is both procedurally and
substantively reasonable. Gall v. United States, 128 S. Ct. 586, 597 (2007). A
sentence may be procedurally unreasonable if the district court improperly
calculates the Guidelines range, treats the Sentencing Guidelines as mandatory
rather than advisory, fails to consider the appropriate statutory factors, selects a
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sentence based on clearly erroneous facts, or fails to explain adequately the chosen
sentence. Gall, 128 S. Ct. at 597. After an appellate court has determined the
sentence is procedurally sound, Gall directs that the appellate court review the
substantive reasonableness of a sentence under an abuse-of-discretion standard. Id.
The review for substantive reasonableness involves examining the totality of the
circumstances, including an inquiry into whether the statutory factors in § 3553(a)
support the sentence in question. Id. at 597-600.
In its consideration of the § 3553(a) factors, the district court does not need
to discuss or state each factor explicitly. United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005). However, “[t]he 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, 127 S. Ct. 2456, 2468 (2007). We defer to the judgment of the
district court in the weight given to the § 3553(a) factors unless the district court
has made “a clear error of judgment” and has imposed “a sentence that lies outside
the range of reasonable sentences dictated by the facts of the case.” United States
v. McBride, 511 F.3d 1293, 1297-98 (11th Cir. 2007) (quotations omitted).
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
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paragraph (2) of this subsection,” namely to reflect the seriousness of the offense,
promote respect for 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 Guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentence disparities, and the need to
provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7). We ordinarily
expect a sentence within the Guidelines range to be reasonable, and the appellant
has the burden of establishing that the sentence is unreasonable in light of the
record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
Sentencing factor manipulation focuses on government conduct and invites
us to consider “whether the manipulation inherent in a sting operation, even if
insufficiently oppressive to support an entrapment defense, or due process claim,
must sometimes be filtered out of the sentencing calculus.” United States v.
Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998) (quotations and alterations
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omitted). “Such a claim points to the opportunities that the sentencing guidelines
pose for prosecutors to gerrymander the district court’s sentencing options and
thus, defendant’s sentences.” Id. (quotation omitted). We have “considered
sentencing manipulation as a viable defense,” but we have not decided explicitly
whether the doctrine is viable. See United States v. Ciszkowski, 492 F.3d 1264,
1270 (11th Cir. 2007).
Gray cannot show the district court imposed a procedurally unreasonable
sentence. Gray does not contest the district court’s calculation of his Guidelines
range, treatment of the range as advisory, or explanation of the chosen sentence.
See Gall, 128 S. Ct. at 597. He asserts the court failed to consider the statutory
factors appropriately because it did not consider his arguments regarding the
alleged improper Government conduct or sentence manipulation as bearing on the
nature and circumstances of the offense, as he argues the court was required to do
under 18 U.S.C. § 3553(a). The record shows the court heard the arguments Gray
offered in mitigation, considered all the statutory factors, and concluded Gray did
not offer any mitigating circumstances justifying a sentence below the Guidelines
range. Even assuming this Court recognizes sentence factor manipulation as a
valid defense or mitigating consideration, Gray cannot show that the court failed to
consider the statutory factors appropriately. See Gall, 128 S. Ct. at 597.
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To the extent the district judge indicated he could not consider Gray’s
arguments, the record shows the judge understood that he could not consider the
arguments only to the extent Gray was challenging the Congressional policy
behind the mandatory minimum sentences. The district court correctly recognized
it was bound by the statutory minimums. See Ciszkowski, 492 F.3d at 1270 (“Even
after Booker, the district court is bound by the statutory mandatory minimums.”).
While this Court has recognized that “[c]onceptually,” a finding of
sentencing factor manipulation could result in the application of a different
statutory minimum in circumstances where the manipulated factor that triggered
the mandatory minimum would be filtered out of the sentencing calculation, id.,
Gray does not argue the alleged sentencing manipulation should result in the
application of a different statutory minimum, but merely that the court should have
considered the alleged sentencing manipulation as part of the nature and
circumstances of his offense under § 3553(a)(1). Additionally, the doctrine is
inapplicable to Gray because he pled guilty to Count Four, which provided for a
15-year statutory minimum, such that he could not challenge the application of the
mandatory minimum without challenging the conviction itself. 18 U.S.C.
§ 924(e)(1). Accordingly, the court did not err in determining it could not consider
his sentencing manipulation arguments to the extent they related to a request to
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disregard the statutory mandatory minimum penalties for his offense. See
Ciszkowski, 492 F.3d at 1270 (“Even though sentencing factor manipulation by the
government may occur during the course of an investigation, a district court still
cannot disregard a mandatory minimum, because Congress has only authorized
departures from statutory mandatory minimums in limited circumstances.”).
To the extent Gray’s sentence-manipulation arguments related to the nature
and circumstances of the offense, there is no indication in the record the court felt
it could not consider Gray’s arguments as mitigating factors. The judge stated,
“Here, other than the harsh mandatory minimum that’s self-imposed by Congress, I
really don’t see any mitigating circumstances” and “I really don’t see any
mitigation here that would compel me or convince me to impose a sentence below
the Guidelines.” Both statements indicate the court considered the arguments Gray
offered in mitigation but did not find them persuasive. Therefore, Gray has not
shown the court failed to consider appropriately the § 3553(a) factors or imposed a
procedurally unreasonable sentence.
To the extent Gray asserts his sentence is substantively unreasonable, his
argument fails. The court imposed a sentence at the lowest point in Gray’s
Guidelines range, after indicating it was concerned with Gray’s long criminal
history. Given that Gray had been convicted of multiple crimes, many of which
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involved the use of violence, the court could properly conclude a sentence within
Gray’s Guidelines range was necessary given his history and characteristics and
the need for the sentence to afford adequate deterrence, to promote respect for the
law, and to protect the public from further crimes of Gray. 18 U.S.C. § 3553(a)(1),
(2)(A)-(C). Although Gray would have put more weight on the Government’s
allegedly inappropriate conduct in the determination of his sentence, the court was
permitted to place more weight on certain factors than on others. See McBride,
511 F.3d at 1297-98. Therefore, Gray cannot show his sentence, at the lowest
point in the Guidelines range and supported by the statutory factors, was
unreasonable. See Gall, 128 S. Ct. at 597. Accordingly, we affirm Gray’s
sentence.
AFFIRMED.
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