United States v. Cynthia Latrease Johnson ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11887 SEPTEMBER 12, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00157-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CYNTHIA LATREASE JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 12, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Cynthia Latrease Johnson appeals her 97-month sentence, imposed
following her guilty plea, for possessing with intent to distribute 5 grams or more
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iii),
conspiracy to possess with intent to distribute 50 grams or more of crack cocaine,
in violation of 21 U.S.C. §§ 846 & 841(b)(1)(A)(iii), and possessing with intent to
distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1) & (b)(1)(A)(iii). On appeal, Johnson argues that the district court treated
the Sentencing Guidelines range of 97 to 121 months’ imprisonment as mandatory
and imposed an unreasonable sentence, which did not reflect the court’s expressed
concerns about the disparity between sentences for comparable amounts of crack
cocaine and powder cocaine. She also contends the district court failed to consider
mitigating facts such as her limited criminal history, her limited role in the instant
offenses, and that she is responsible for her five children. After careful review, we
affirm.
This Court has held that “[i]n reviewing the ultimate sentence imposed by
the district court for reasonableness, we consider the final sentence, in its entirety,
in light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006) (citation omitted). In determining whether a sentence is
reasonable, the district court should be guided by the § 3553(a) factors. United
States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Section 3553(a)
provides that district courts must consider, inter alia, (1) the applicable guideline
range; (2) the nature and circumstances of the offense; (3) the history and
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characteristics of the defendant; (4) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (5) the need for adequate deterrence; (6) protection of
the public; and (7) the need to avoid unwarranted sentencing disparities. 18
U.S.C. § 3553(a)(1)-(6).
A district court need not explicitly consider every single § 3553(a) factor in
order for the sentence to be reasonable. See United States v. Scott, 426 F.3d 1324,
1329-30 (11th Cir. 2005). Rather, “an acknowledgment by the district court that it
has considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir.
2005). In United States v. Rita, 551 U.S. __, 127 S. Ct. 2456 (2007), the Supreme
Court recently held that, in reviewing sentences for reasonableness under 18
U.S.C. § 3553(a), a federal appellate court may apply a presumption of
reasonableness to a district court sentence that is within the Guidelines range and
reflects a proper application of the Guidelines. Id. at 2463; 127 S.Ct. at 2463-68.
After the Rita decision, this Court noted that this circuit does not “presume
reasonable a sentence within the properly calculated Guidelines range.” United
States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007) (citation omitted).
Instead, this Court has held that a within-range sentence may ordinarily be
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expected to be reasonable, but it is not reasonable per se. Talley, 431 F.3d at 786-
88. Moreover, “the party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both that record and
the factors in section 3553(a).” Id. at 788.
Although the Sentencing Guidelines are advisory, a district court must still
calculate the correct Guidelines range, and in so doing it “may not disregard
individual Guidelines or construe them in a manner inconsistent with Congress’s
intent as expressed in the Guidelines, even if the ultimate range based on those
Guidelines is advisory in nature.” United States v. Pope, 461 F.3d 1331, 1337
(11th Cir. 2006). Notably, we have expressly held that a district court’s
disagreement with the penalties for crack cocaine offenders relative to powder
cocaine offenders is not a proper basis upon which to depart from a properly
calculated Guidelines range under 18 U.S.C. § 3553(a). Id. at 1336 (citing United
States v. Williams, 456 F.3d 1353 (11th Cir. 2006)).
In the instant case, our review of the transcript from the sentencing hearing
makes clear that the district court understood the Sentencing Guidelines to be
advisory only. Indeed, on numerous occasions, the district court expressly stated
that the Guidelines were advisory, noting that it had considered the “advisory
sentencing guidelines” in determining the sentence and that the “advisory
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sentencing guidelines” treat crack cocaine differently from powder cocaine. After
making the latter observation, the court correctly noted that our decision in
Williams precluded it from reducing Johnson’s sentence based only on a
disagreement behind the policy of the powder versus crack cocaine disparity. See
456 F.3d at 1369.
The record also shows that the district court adequately considered the
§ 3553(a) factors. The sentence imposed in this case was the lowest possible
sentence under the Guidelines, and Johnson admits that the sentencing range was
properly calculated. Therefore, this Court expects such a sentence to be
reasonable, and Johnson bears the burden of establishing that it is not. Talley, 431
F.3d at 786-88.
Here, Johnson has not met her burden. At the sentencing hearing, the
district court elicited input from both parties regarding mitigating factors. Johnson
requested a sentence below the Guidelines range, citing her short criminal record
and noting that she is a single mother of five children. Following this request for a
lower sentence and hearing the arguments from both sides, the district court
specifically acknowledged taking the § 3553(a) factors into consideration. The
court found that Johnson’s 97-month sentence was “sufficient but not greater than
necessary to comply with the statutory purposes of sentencing.”
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On this record, Johnson has not shown that her sentence is unreasonable in
the light of both the record and the factors in section 3553(a). Accordingly, we
affirm.
AFFIRMED.
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