United States v. Michael Reed , 391 F. App'x 857 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16062 ELEVENTH CIRCUIT
AUGUST 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00030-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL REED,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 12, 2010)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Michael Reed appeals his 57-month sentence for conspiracy to
distribute, and possession with intent to distribute, a mixture or substance
containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.
On appeal, Reed argues that the district court committed procedural error under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
by failing to explain its sentence adequately and by misapprehending its own
authority to consider his community-support evidence under the statutory factors.
Reed also argues that his sentence is substantively unreasonable because he
presented ample mitigating evidence that, when considered with the statutory
factors, supported a lower sentence. Reed further argues that his sentence was
unreasonable because it resulted in an unwarranted sentencing disparity between
himself and his more culpable codefendant and that sentencing disparities also
existed between himself and similarly situated defendants nationwide. He claims
that the statistics demonstrate the district court engaged in reverse discrimination
by penalizing him more harshly because he was well-educated and had a successful
medical career. Reed finally argues that the district court’s refusal to consider his
community-support evidence rendered his sentence substantively unreasonable.
I.
We review the reasonableness of sentences imposed under the advisory
Sentencing Guidelines under an abuse-of-discretion standard. Gall v. United
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States, 552 U.S. 38, 56, 128 S. Ct. 586, 600, 169 L. Ed. 2d 445 (2007). We first
review a sentence for procedural reasonableness to ensure that the district court
committed no significant procedural error, such as improperly calculating the
guidelines range, treating the guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to explain adequately the chosen sentence. Id. at 51, 128 S. Ct. at 597. In relevant
part, § 3553(a) provides that a sentencing court “shall consider: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant[.]”
18 U.S.C. § 3553(a)(1). The statute specifically provides that “[n]o limitation shall
be placed on the information concerning the background, character, and conduct of
a person . . . which [the sentencing court] may receive and consider for the purpose
of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also United States v.
Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (noting that, “after Booker, ‘courts
may still consider relevant facts concerning a defendant’s background, character,
and conduct’ when imposing a reasonable sentence.”) (quoting United States v.
Faust, 456 F.3d 1342, 1348 (11th Cir. 2006). The burden of establishing
unreasonableness lies with the party challenging the sentence. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In relevant part, 18 U.S.C. § 3553 requires the district court to “state in open
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court the reasons for its imposition of the particular sentence[.]” 18 U.S.C.
§ 3553(c). Accordingly, a 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, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007).
A sentencing judge is not required to state expressly on the record which, if any,
§ 3553(a) factors were considered in determining a sentence. United States v.
Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). Rather, “an acknowledgment
by the district court that it has considered the defendant’s arguments and the
[statutory] factors in section 3553(a) is sufficient under Booker.”
Talley, 431 F.3d at 786; see also Rita, 551 U.S. at 358, 127 S. Ct. at 2469 (holding
that a brief explanation of the sentencing decision was sufficient, in part, because
the record showed that the district court considered the defendant’s supporting
evidence).
However, in order to preserve an issue for appeal, the defendant must “raise
that point in such clear and simple language that the trial court may not
misunderstand it.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006)
(internal quotation marks omitted); see United States v. Reyes-Vasquez, 905 F.2d
1497, 1500 (11th Cir. 1990) (“Plain talk by lawyers is necessary for clear
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understanding by judges.”). We review arguments raised for the first time on
appeal only for plain error. United States v. Spoerke, 568 F.3d 1236, 1244 (11th
Cir. 2009). “Plain error occurs where (1) there is an error; (2) that is plain or
obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity or public
reputation of the judicial proceedings.” Id. at 1244-45 (quoting United States v.
Hall, 314 F.3d 565, 566 (11th Cir. 2002)). In plain-error review, the defendant
bears the burden to prove that his substantial rights were affected.
United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003).
We review Reed’s challenge to the district court’s sentencing explanation
for plain error only. Because Reed did not object in the district court, we thus
conclude from the record that the district court satisfied the requirements of
§ 3553(c), and accordingly, committed no error, plain or otherwise, in its
explanation of Reed’s sentence.
The district court abused its discretion to the extent that it declined to
consider Reed’s evidence of community support, based on a belief that such
evidence could not be considered under the statutory factors. However, the district
court’s misapprehension of its own authority to consider the community-support
evidence is not a “significant procedural error.” Gall, 552 U.S. at 51, 128 S. Ct. at
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597. Accordingly, Reed’s sentence is procedurally reasonable.
II.
If the district court’s sentence is procedurally sound, we next evaluate
whether the sentence imposed by the district court is substantively reasonable and
achieves the purposes of sentencing under 18 U.S.C. § 3553(a). Talley, 431 F.3d
at 788. While a sentence may be substantively unreasonable if the court ignores
relevant factors, it is not necessarily unreasonable because the sentence must be
examined based on the totality of the circumstances. United States v. Pugh, 515
F.3d 1179, 1192, 1192 (11th Cir. 2008). Further, the weight accorded to the
various factors is in the discretion of the district court, and we will not second
guess the exercise of that discretion as long as the sentence imposed is reasonable
under the totality of the circumstances. Id. at 1191. Thus, a defendant’s personal
disagreement with the district court’s assessment of one or more of the factors will
not be sufficient reason to vacate as unreasonable a district court’s careful
consideration of the § 3553(a) factors. See United States v. Valnor, 451 F.3d 744,
752 (11th Cir. 2006). Reasonableness review is deferential, and if a district court
imposes a sentence within the advisory guideline range, “we ordinarily will expect
that choice to be a reasonable one.” Talley, 431 F.3d at 788.
District courts should not use § 3553(a)(6), which states that courts should
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consider the need to avoid unwarranted sentencing disparities among defendants
with similar records who have been found guilty of similar conduct, to adjust the
sentence of a codefendant. United States v. Chotas, 968 F.2d 1193, 1197-98
(11th Cir. 1992). Rather, § 3553(a)(6) applies in order to cure unwarranted
disparities between the defendant and all similar offenders in other cases.
Id. at 1198. Thus, disparity between sentences imposed on codefendants is
generally not an appropriate basis for relief on appeal. United States v. Regueiro,
240 F.3d 1321, 1325-26 (11th Cir. 2001).
We conclude from the record that Reed’s 57-month sentence is substantively
reasonable under the totality of the circumstances. Reed’s 57-month sentence is
within the guideline range, is well below the statutory maximum of 40 years’
imprisonment, and achieves the purposes of sentencing under § 3553(a).
Accordingly, we affirm Reed’s sentence.
AFFIRMED.
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