United States v. Arick Graham Dail , 277 F. App'x 881 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 12, 2008
No. 07-15343 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00001-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARICK GRAHAM DAIL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 12, 2008)
Before DUBINA, BLACK and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Arick Graham Dail appeals his 151-month sentence
for possession with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1). After review, we affirm.
I. BACKGROUND
Dail was charged with (1) possession of a firearm as a convicted felon, 18
U.S.C. §§ 922(g), 924(a)(2); (2) possession with intent to distribute cocaine, 21
U.S.C. § 841; (3) possession with intent to distribute hydropmorphone, 21 U.S.C.
§ 841; and (4) possession of a firearm in furtherance of a drug trafficking offense,
18 U.S.C. § 924(c)(1). Dail pled guilty to possession with intent to distribute
cocaine in exchange for dismissal of the other three counts.
According to the presentence investigation report (“PSI”), Dail sold cocaine
to a confidential informant. Police searched Dail’s residence and discovered a
loaded 9mm handgun, a box of ammunition, and small quantities of marijuana,
cocaine, and pills. Dail later confessed to purchasing and selling one-quarter of a
kilogram of cocaine and to distributing illegal drugs for approximately four years
in the area where he was arrested.
The PSI calculated a base offense level of 20, U.S.S.G. § 2D1.1(c)(10), and
applied a 2-level enhancement for possession of a firearm, U.S.S.G. § 2D1.1(b)(1).
The PSI reported that Dail was a career offender based on four prior 1999
convictions for possession with intent to sell marijuana involving drug quantities
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ranging from 23.2 to 53.5 grams. Under U.S.S.G. § 4B1.1, the career-offender
enhancement increased his offense level from 22 to 32 and his criminal history
category from IV to VI. After applying a 3-level reduction for acceptance of
responsibility, U.S.S.G. § 3E1.1(a)-(b), the PSI calculated a total offense level of
29 and an advisory guidelines range of 151 to188 months’ imprisonment.
Dail objected that the career-offender enhancement resulted in an excessive
sentence in light of his prior convictions that involved less than two ounces of
marijuana and occurred over a 10-month period. Dail noted that his advisory
guidelines range would be only 46 to 57 months’ imprisonment if not for the
career-offender enhancement, which would have been a more appropriate
sentencing range.
At sentencing, the district court adopted the PSI’s guidelines calculations. In
mitigation, Dail presented a letter from his employer and stated that he had not
violated his pre-trial parole, had been employed since his arrest, and would
continue to work and help raise his children. Dail contended that he was not a
career criminal, although he had “done some things in the past.” Dail stated that he
knew that he had to take responsibility for what he had done, but he felt that it was
cruel to place him in prison until he was 40 years’ old for this offense.
In response to Dail’s argument that the career-offender enhancement
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overstated his prior criminal record, the government argued that Dail had “page
after page after page” of criminal history and had “far more than what is needed to
qualify as a career offender.” The government stated that it was “a mercy” for Dail
to be sentenced at the low end of the guidelines range.
The district court stated that it had considered Dail’s and his attorney’s
statements, the 18 U.S.C. § 3553(a) factors and the advisory guidelines and
sentenced Dail to 151 months’ imprisonment. The district court noted that it saw
“no reason to depart from the sentence called for by the application of the advisory
guidelines since the facts justify it.” The district court stated that “sentencing
[Dail] at the bottom of the advisory guidelines will take into consideration what
[Dail] has said to the Court this morning.” This appeal followed.
II. DISCUSSION
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and
Gall v. United States, 552 U.S. __, 128 S. Ct. 586 (2007), a district court still must
correctly calculate the advisory guidelines range. See United States v. Pugh, 515
F.3d 1179, 1189 (11th Cir. 2008). The district court then must consider the 18
U.S.C. § 3553(a) factors and “‘make an individualized assessment based on the
facts presented’” in determining its sentence. Id. at 1190 (quoting Gall, 552 U.S. at
__, 128 S. Ct. at 597).
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A sentencing judge is not required to discuss each § 3553(a) factor. 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.’” United States v. Agbai, 497 F.3d 1226, 1230 (11th
Cir. 2007) (quoting Rita v. United States, 551 U.S. __, __, 127 S. Ct. 2456, 2468
(2007)). Generally, when sentencing within the advisory guidelines range, the
district court is not required to give a lengthy explanation for its sentence if the
case is typical of those contemplated by the Sentencing Commission. See id.(citing Rita, 551 U.S. at __, 127 S. Ct. at 2468).
Appellate courts review all sentences under a deferential abuse-of-discretion
standard. Pugh, 515 F.3d at 1189 (citing Gall, 552 U.S. at __, 128 S. Ct. at 591).
Under Gall, we must engage in a two-step process of sentencing review. Id. at
1190. First, we must “‘ensure that the district court committed no significant
procedural error, such as 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–including an explanation for any deviation
from the Guidelines range.’” Id. (quoting Gall, 552 U.S. at __, 128 S. Ct. at 597).
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Second, we must consider the “‘substantive reasonableness of the sentence
imposed, under an abuse-of-discretion standard.’” Id. (quoting Gall, 552 U.S. at
__, 128 S. Ct. at 597). Our review for substantive reasonableness is also guided by
the § 3553(a) factors, taking into account the totality of the circumstances. Id. at
1191. The party challenging the sentence bears the burden to shown on appeal that
the sentence is unreasonable. Id. at 1189.
Here, there was no procedural error at Dail’s sentencing. The district court
properly stated that it had treated the guidelines as advisory, and there is no
indication that the district court misapprehended its authority to vary from the
advisory guidelines range. The district court also stated that it had considered the
arguments raised by Dail and his counsel at sentencing and the § 3553(a) factors.
Because the district court imposed a sentence within the advisory guidelines range
after indicating that it saw “no reason to depart from the sentence called for by the
application of the advisory guidelines since the facts justify it,” the district court’s
explanation of its chosen sentence was sufficient. See Agbai, 497 F.3d at 1230;
Scott, 426 F.3d at 1329.
Furthermore, we cannot say that Dail’s 151-month sentence, at the low end
of the advisory guidelines range, was substantively unreasonable. The district
court sentenced Dail well below the 20-year statutory maximum sentence. Despite
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Dail’s argument that the prior convictions used to enhance his sentence involved
small drug quantities and occurred within a narrow time frame, Dail’s criminal
history demonstrates a long-term involvement in drug distribution. Further, Dail
confessed that he had been dealing drugs from approximately 2002 through his
arrest his 2006. In light of these facts and our deference to the district court’s
advantage in weighing the § 3553(a) factors, Dail has failed to carry his burden to
show that the district court abused its discretion in imposing a 151-month sentence.
AFFIRMED.
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