United States v. Kenneth J. Hudson ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15359
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00086-JSM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH J. HUDSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 21, 2013)
Before CARNES, MARCUS, and KRAVITCH, Circuit Judges.
PER CURIAM:
Kenneth J. Hudson appeals the procedural and substantive reasonableness of
his 210-month sentence, imposed following his convictions at trial for possession
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of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1), and possession with intent
to distribute marijuana, 21 U.S.C. § 841(a)(1). Although the district court granted
Hudson a 52-month downward variance from his sentencing guidelines range of
262 to 327 months imprisonment that applied due to his undisputed status as an
armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, Hudson
contends that any sentence above the 15-year statutory minimum would be
unreasonable and greater than necessary to accomplish the goals of sentencing, and
that the court failed to adequately explain its reasons for imposing a sentence
above the statutory minimum. In support of his claims of error, Hudson cites the
age of his prior felony convictions; the small amounts of drugs involved in his past
and current drug offenses; the support he has given to his minor daughters; his
intellectual, psychological, and “emotional handicaps”; and the increased costs to
the government of incarcerating him beyond the 15-year mandatory minimum.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard, Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007), and the party challenging the sentence bears the burden of establishing that
it is unreasonable, United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A
sentence may be procedurally unreasonable if the district court fails to consider the
sentencing factors enumerated in 18 U.S.C. § 3553(a) or fails to “adequately
explain the chosen sentence—including an explanation for any deviation from the
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Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. at 597. In explaining the
chosen sentence, the district court should say enough to satisfy the reviewing court
that it has considered the parties’ arguments and has a reasoned basis for making
its decision, Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007),
though “nothing . . . 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,” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
The substantive reasonableness of a sentence is examined in light of the
totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128
S.Ct. at 597. Under § 3553(a), the district court must impose a sentence that is
sufficient, but not greater than necessary, to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public from future crimes of the defendant. 18 U.S.C. §
3553(a)(2). The court must also consider, among other factors, the nature and
circumstances of the offense, the history and characteristics of the defendant, and
the applicable guidelines range. Id. § 3553(a). We will not vacate a sentence as
substantively unreasonable unless “left with the definite and firm conviction that
the district court committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
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dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc).
Hudson has not demonstrated that his sentence is procedurally or
substantively unreasonable. The district court explained that it had considered the
§ 3553(a) factors and the advisory guidelines range, and, in granting a 52-month
downward variance, specifically cited the age of Hudson’s prior felony
convictions, the small amount of crack cocaine involved in his career-criminal
predicate drug offenses, the fact that Hudson had “lived for substantial periods of
time crime free,” and that his private life had “otherwise been reasonably
conducted.” The court’s explanation for its chosen sentence, including the extent
of the deviation from the guidelines range, was adequate. See Rita, 551 U.S. at
356, 127 S.Ct. at 2468; Scott, 426 F.3d at 1329. The court was not required to
specifically state why it did not further deviate from the guidelines range down to
the statutory minimum.
The sentence is also not unreasonably high. Because we ordinarily expect
within-guidelines sentences to be substantively reasonable, United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), it follows that we would certainly
expect a below-guidelines sentence, such as Hudson’s, not to be unreasonably
severe. Hudson’s sentence is well below the applicable guidelines range and even
further below the statutory maximum of life imprisonment, which itself is
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indicative of a reasonable sentence. See id. It also adequately reflects his long
history of criminal activity, which includes a 1994 conviction for possession of
cocaine; 1995 convictions for aggravated assault with a firearm, possession of
marijuana, and obstructing an officer without violence; 2001 convictions for the
sale and possession of cocaine; a 2008 conviction for carrying a concealed
weapon; and a 2011 conviction for obstructing or resisting an officer without
violence. Hudson’s previous sentences of imprisonment, which totaled over 8
years, have clearly failed to deter him from violating the law, which raises
legitimate concerns about recidivism. We are far from convinced that his
significantly below-guidelines sentence of 210 months imprisonment is
unreasonably high in light of the § 3553(a) factors, particularly his history,
characteristics, and the need to afford adequate deterrence, protect the public from
his criminal conduct, and promote respect for the law. We therefore affirm his
sentence of 210 months imprisonment. See Irey, 612 F.3d at 1190.
AFFIRMED.
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