United States v. Quinton D. Gibson ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 24, 2010
No. 09-10518 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00053-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINTON D. GIBSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(May 24, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Quinton D. Gibson appeals his concurrent 18-month sentences1 for 9 counts
of passing and uttering with intent to defraud counterfeit Federal Reserve notes, in
violation of 18 U.S.C. § 472. Gibson asserts two issues on appeal, which we
address in turn.2 After review, we affirm Gibson’s sentences.
I.
Gibson first contends the district court erred in calculating his criminal
history by counting a prior uncounseled misdemeanor conviction and the fact he
was still on probation for that conviction when he committed the instant offenses.
Gibson, however, failed to object to the facts of his prior convictions as contained
in his PSI either in writing or at his sentencing; thus, he is deemed to have admitted
those facts. See United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006)
(holding failure to object to allegations of fact in a PSI admits those facts for
sentencing purposes). Thus, the district court did not err in relying on the
1
Gibson completed his prison term on December 18, 2009. He is currently on
supervised release, however, and his appeal is not moot. See Page v. United States, 69 F.3d 482,
487 n.4 (11th Cir. 1995).
2
The Government contends Gibson waived appeal of his sentences, except to the extent
the district court varied upward from his advisory Guidelines range. However, Gibson’s plea
agreement states “in the event that the District Court imposes a sentence that exceeds the
advisory Guidelines range as determined by the District Court, then the defendant shall retain the
right to pursue a timely appeal of the sentence directly to the Court of Appeals . . . .” The appeal
waiver provision does not limit the appeal to the variance, as the Government asserts. Because
the district court varied upward, Gibson is entitled to appeal all issues regarding his sentence, not
just the upward variance.
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undisputed facts in Gibson’s PSI to count these convictions in his criminal history.
See id.3
II.
Next, Gibson asserts his sentences, which exceeded the top-end of the
applicable advisory guidelines range by 8 months, were otherwise procedurally and
substantively unreasonable because the district court failed to consider the 18
U.S.C. § 3553(a) factors or adequately explain his sentences, and those sentences
were more than quadruple and almost twice the length of the low- and top-ends of
the Guidelines range, respectively.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard, whether the sentence falls “inside, just outside, or significantly
outside” the advisory Guidelines range. Gall v. United States, 128 S. Ct. 586, 591
(2007). Reasonableness review involves a two-step process. United States v.
Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct. 2847 (2009). We
first look at whether the district court committed any significant procedural error,
and then at whether the sentence is substantively reasonable under the totality of
3
To the extent Gibson attempts to raise an ineffective-assistance-of-counsel claim with
regard to the calculation of his criminal history category, we do not address that argument on
direct appeal. “[E]xcept in the rare instance when the record is sufficiently developed, we will
not address claims for ineffective assistance of counsel on direct appeal.” United States v.
Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008) (quotation omitted). “Instead, an ineffective
assistance of counsel claim is properly raised in a collateral attack on the conviction under 28
U.S.C. § 2255.” Id. (quotation omitted).
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the circumstances, “including the extent of any variance from the Guidelines
range.” Id. (quotation omitted).
A district court commits a significant procedural sentencing error if it, for
example, (1) improperly calculates the Guidelines range; (2) treats the Guidelines
as mandatory; (3) fails to consider the 18 U.S.C. § 3553(a) sentencing factors;
(4) selects a sentence based on clearly erroneous facts; or (5) fails to explain the
chosen sentence. Gall, 128 S. Ct. at 597. The district court need not “recite a
laundry list of the § 3553(a) factors” however, and it is enough if it “explicitly
acknowledge[s] that it ha[s] considered [the defendant’s] arguments at sentencing
and . . . the factors set forth in § 3553(a).” United States v. Scott, 426 F.3d 1324,
1329-30 (11th Cir. 2005). Additionally, the district court “should set forth enough
to satisfy the appellate court that [it] has considered the parties’ arguments and has
a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.
United States, 127 S. Ct. 2456, 2468 (2007). “Sometimes the circumstances will
call for a brief explanation; sometimes they will call for a lengthier explanation.”
Id. at 2468.
A sentence is substantively unreasonable if, under the totality of the
circumstances, it fails to achieve the purposes of sentencing listed in § 3553(a).
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). “[T]he party who
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challenges the sentence bears the burden of establishing that the sentence is
unreasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We
“recognize that there is a range of reasonable sentences from which the district
court may choose.” Id. Moreover, in reviewing the substantive reasonableness of
a sentence, we have compared the actual sentence imposed to the applicable
statutory maximum term of imprisonment. See, e.g., United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008), cert. denied, 129 S. Ct. 2848 (2009).
The district court explained it imposed sentences outside the Guidelines
range because, in its view, the Guidelines range was “too lenient.” Moreover,
given that Gibson, other than stating he was relatively young and had no prior
felony convictions, never really raised any arguments at sentencing, it was not
incumbent on the district court to discuss every conceivably relevant issue sua
sponte. See Gall, 128 S. Ct. at 599 (stating “it [is] not incumbent on the District
Judge to raise every conceivably relevant issue on his own initiative.”). Finally, to
the extent that Gibson’s statements he was young and had no prior felony
convictions required a rebuttal, Gibson himself provided it by noting he had
pending charges in Bibb County, two of which involved robberies. In sum, given
that the upward variance involved the relatively short term of eight months, and
given Gibson’s relative silence at sentencing, it does not appear the circumstances
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called for a lengthy explanation, and the district court’s short explanation did not
render Gibson’s sentences procedurally unreasonable.
Gibson also cannot satisfy the burden of establishing his sentences were
substantively unreasonable. First, Gibson’s concurrent 18-month sentences were
less than one-tenth of the statutory maximum of 20 years’ imprisonment. See 18
U.S.C. § 472. Second, the district court justified the upward variance by
explaining the Guidelines range was “too lenient.” While the district court did not
elaborate, its earlier colloquy with Gibson showed its awareness that Gibson, rather
than his two codefendants, spearheaded the fraudulent scheme. Finally, Gibson’s
sole specific argument regarding the substantive unreasonableness of his sentences
lacks merit because quantifying the upward variance, as Gibson does, as a certain
percentage of the various points in the Guidelines range is unhelpful since the
advisory Guidelines range, from four to ten months’ imprisonment, was low. See
Gall, 128 S. Ct. at 595 (stating “quantifying the variance as a certain percentage of
the maximum, minimum, or median prison sentence recommended by the
Guidelines” is unhelpful because “deviations from the Guidelines range will
always appear more extreme–in percentage terms–when the range itself is low”).
AFFIRMED.
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