United States v. Gregory Eugene Walker , 426 F. App'x 763 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11411 MAY 11, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 5:09-cr-00017-HL-CWH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
GREGORY EUGENE WALKER,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 11, 2011)
Before BARKETT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Gregory Eugene Walker appeals his 70-month within-guideline sentence
imposed after he pleaded guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). Walker challenges the
procedural and substantive reasonableness of his sentence. After thorough review,
we affirm.
I.
“We review sentencing decisions only for abuse of discretion, and we use a
two-step process.” United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
2010) (quoting United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009)).
We first must “ensure that the district court committed no significant procedural
error . . . [and] then consider the substantive reasonableness of the sentence
imposed.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quotation
marks omitted). Procedural errors include: “failing to calculate (or 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 adequately explain the chosen sentence.” Id. (quotation marks
omitted). We look to the § 3553(a) factors to guide our substantive
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reasonableness review. United States v. Winingear, 422 F.3d 1241, 1246 (11th
Cir. 2005).
II.
Walker first argues that the district court committed procedural error by
failing to acknowledge his request for a non-custodial sentence and neglecting to
explain its reasons for imposing Walker’s sentence. “[T]he party who challenges
the sentence bears the burden of establishing that the sentence is unreasonable in
the light of both th[e] record and the factors in section 3553(a).” United States v.
Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007) (quoting United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005)). When the district court imposes a sentence
within the guideline range “doing so will not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468
(2007). The district court need only make “an acknowledgment . . . that it has
considered the defendant’s arguments and the factors in section 3553(a).” Talley,
431 F.3d at 786. “[N]othing . . . 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).
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The district court did not commit procedural error. Before imposing
Walker’s within-guideline sentence, the court stated it had considered the
guidelines and that Walker’s sentence was “an appropriate sentence in this case,
complies with the factors that are to be considered as set forth at 18 U.S.C.
§ 3553(a) and adequately addresses the totality of the circumstances.” Moreover,
the district court gave Walker’s counsel an opportunity to argue in support of
Walker’s request for a non-custodial sentence. Given that Walker’s counsel
reported to the district court that Walker had no technical objections to the
presentence investigation report (“PSR”) but merely requested a variance based on
the § 3553(a) factors, the district court’s explanation of Walker’s sentence was
sufficient.1
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Walker argues for the first time on appeal that the district court failed to
confirm, pursuant to Fed. R. Crim. P. 32(i)(1)(A), that Walker and his counsel had
reviewed and discussed the PSR. Rule 32(i)(1)(A) requires the sentencing court to
“verify that the defendant and the defendant’s attorney have read and discussed the
presentence report.” The district court did not plainly err in violation of Rule 32.
See United States v. Gerrow, 232 F.3d 831, 833 (11th Cir. 2000) (plain error
review applies to arguments raised for the first time on appeal). At the beginning
of Walker’s sentencing hearing, Walker’s counsel informed the district court that
he had filed an objection to the PSR based on “certain 3553(a) factors that warrant
a departure” but reported that he had “no technical objections to the PSR.”
Walker’s counsel then described in detail the contents of the PSR and conceded
that the guidelines calculation in the PSR was correct. The court noted on the
record that the PSR had been considered and accepted. Additionally, Walker does
not contend that any changes should have been made to the PSR and therefore
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III.
Walker next argues that his sentence is substantively unreasonable because
the circumstances of his case warranted less severe punishment in light of the 18
U.S.C. § 3553(a) factors. When reviewing a sentence for substantive
reasonableness, we examine the totality of the circumstances and determine
whether the sentence achieves the sentencing goals stated in 18 U.S.C. § 3553(a).
United States v. Culver, 598 F.3d 740, 753 (11th Cir. 2010); Pugh, 515 F.3d at
1191. We ordinarily expect a sentence within the guidelines range to be
reasonable. Talley, 431 F.3d at 788. Further, it is within the district court’s
discretion to weigh the § 3553(a) factors, and “[w]e will not substitute our
judgment in weighing the relevant [statutory] factors.” United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007) (quotation marks omitted).
Walker’s sentence is substantively reasonable. It is at the bottom of the
applicable guideline range, which was 70 to 87 months. See Talley, 431 F.3d at
788. It is also well below the ten-year statutory maximum sentence for possession
of a firearm by a convicted felon. See 18 U.S.C. § 924(a)(2). It was within the
cannot show prejudice.
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district court’s discretion to weigh the § 3553(a) factors, especially in light of
Walker’s criminal history, and select a sentence at the bottom of the guideline
range. See Amedeo, 487 F.3d at 832.
AFFIRMED.
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