United States v. Charles E. Daniels , 170 F. App'x 102 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 7, 2006
No. 05-14034 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00087-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES E. DANIELS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 7, 2006)
Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Charles Daniels appeals his sentences of concurrent terms of 168 months’
imprisonment for possession with intent to distribute five grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and possession
with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). Because we find that the district court properly
considered the sentencing guidelines and the factors set forth in 18 U.S.C §
3553(a) in arriving at a reasonable sentence, we affirm.
I. Background
Daniels pleaded guilty to two counts of possession with intent to distribute
crack cocaine and cocaine.1 After his plea hearing, but prior to sentencing, the
district court issued an arrest warrant for Daniels for violation of the terms of his
pretrial release.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the offenses together and assigning a base offense level of 26 given the
amount of crack cocaine, cocaine and marijuana involved. The PSI also reflected
the probation officer’s determination that Daniels was a career offender pursuant to
U.S.S.G. § 4B1.1, increasing his offense level to 34. The probation officer then
recommended a three-level reduction for acceptance of responsibility, resulting in
an adjusted offense level of 31.
1
Although police also found marijuana with the crack cocaine and cocaine at the
residence where they arrested Daniels, he was not charged with possession of marijuana.
2
Noting Daniels’s prior offenses dating back to age 16, the probation officer
placed him in criminal history category VI.
At sentencing, Daniels made three objections: (1) he argued that, pursuant to
United States v. Booker, 543 U.S. 220 (2005), the district court need not consider
the sentencing guidelines and should instead base its sentence on the factors set
forth in 18 U.S.C § 3553(a); (2) he objected to a reference in the PSI to the
marijuana the police found upon his arrest, as he was not charged with marijuana
possession; and (3) he objected to being sentenced as a career offender, arguing
that, as a result, he would be given an unreasonable sentence, i.e., a sentence
greater than necessary to achieve the purposes set forth in § 3553(a). Finally,
Daniels requested leniency based on his efforts at post-offense rehabilitation, his
role as a low-level street dealer, and his remorse.
In light of the above factors, the district court departed downward to a
criminal history category of V. However, the court declined further downward
departures, noting that Daniels had tested positive for marijuana while out on bond
and had otherwise violated the terms of his release. The court concluded that, in
light of the absence of exceptional remorse or extraordinary rehabilitation efforts, a
sentence of 168 months’ imprisonment, which was at the low end of the guidelines
range, was sufficient but not greater than necessary to meet the sentencing goals of
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§ 3553(a).
II. Discussion
The government first argues that this court lacks jurisdiction to review
Daniels’s sentences pursuant to 18 U.S.C. § 3742(a) because the sentences were
not “imposed in violation of the law” or “as a result of an incorrect application of
the sentencing guidelines,” and each sentence is within the applicable guidelines
range. Id. As this court recently explained in United States v. Martinez, No. 05-
12706, slip op. (11th Cir. Jan. 9, 2006), however, “a post-Booker appeal based on
the “unreasonableness” of a sentence, whether within or outside the advisory
guidelines range, is an appeal asserting that the sentence was imposed in violation
of law pursuant to § 3742(a)(1).” Id. at 8-9. Accordingly, we have jurisdiction to
consider the reasonableness of Daniels’s sentences.
After Booker, we review a defendant’s sentence for reasonableness. United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). First, the district court
must correctly calculate the applicable guidelines range. See United States v. Lee,
427 F.3d 881, 892 (11th Cir. 2005). Second, the court must consider the advisory
guidelines as well as the factors set forth in § 3553(a). See United States v.
Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005).
The court need not “conduct an accounting of every § 3553(a) factor . . . and
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expound upon how each factor played a role in its sentencing decision,” however.
United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005). “[O]rdinarily we
would expect a sentence within the Guidelines range to be reasonable;” Daniels
bears the burden of showing that his sentence was unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Here, Daniels’s sentences were reasonable. First, Daniels was sentenced at
the low end of the guidelines range. Second, the court departed downward in the
criminal history category because it found that a criminal history category of VI
over-represented Daniels’s criminal history. Third, Daniels received a three-level
reduction for his acceptance of responsibility. Finally, the court considered
Daniels’s attempts at rehabilitation, although it concluded that Daniels’s inability
to abide by the terms of his supervised release demonstrated that his rehabilitation
efforts were not extraordinary.
Because the district court both correctly calculated the applicable guidelines
range and considered the guidelines, the § 3553(a) factors, the circumstances of the
offense and Daniels’s arguments, we hold that the sentences imposed by the
district court were reasonable. Accordingly, we AFFIRM.
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