United States v. Curtis Lee Brasfield ( 2008 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    NOV 21, 2008
    No. 08-11618                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 07-00343-CR-KOB-PWG
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CURTIS LEE BRASFIELD,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (November 21, 2008)
    Before ANDERSON, MARCUS and FAY, Circuit Judges.
    PER CURIAM:
    Curtis Lee Brasfield appeals his 60-month sentence after pleading guilty to
    1 count of being a felon in possession of a firearm, in violation of 18 U.S.C.
    § 922(g)(1). On appeal, he raises the following two arguments: 1) the district court
    violated his due process rights and Fed.R.Crim.P. 32(i)(1)(C) by failing to disclose
    to defense counsel, before the sentencing hearing, a letter upon which it relied at
    sentencing; and 2) the district court’s 60-month sentence, which was the result of
    an upward variance to twice the high-end of the applicable guideline range, was
    unreasonable under 18 U.S.C. § 3553(a).1 For the reasons set forth below, we
    affirm.
    I.
    A federal grand jury returned a single-count indictment against Brasfield,
    charging him with being a felon in possession of a firearm, in violation of 18
    U.S.C. § 922(g)(1). At the plea hearing, the government proffered the following
    facts that it expected to prove at trial. On July 18, 2005, a law enforcement officer
    conducted a traffic stop of Brasfield. When Brasfield was ordered out of the
    vehicle, officers observed a .45 caliber semi-automatic pistol in plain view.
    1
    There was a sentence appeal waiver in this case prohibiting Brasfield from appealing
    his sentence unless, inter alia, the court imposed an “upward departure” from the applicable
    guideline range. Although Brasfield received an upward variance under the 18 U.S.C. § 3553(a)
    factors rather than an upward departure under the Guidelines, we nonetheless review Brasfield’s
    arguments on appeal because the government has not sought application of the waiver, has not
    filed a motion to dismiss the appeal, and has already briefed the case on the merits. United
    States v. Valnor, 
    451 F.3d 744
    , 745 n.1 (11th Cir. 2006).
    2
    Brasfield did not have a permit for the firearm and the authorities later learned that
    it had been reported as stolen. Brasfield had a prior felony conviction in
    Tuscaloosa County, Alabama, for possession of a controlled substance. Brasfield
    pled guilty to the charge in the indictment pursuant to a written plea agreement.
    The probation officer prepared a pre-sentence investigation report (“PSI”)
    and determined that Brasfield’s applicable guideline range was 24 to 30 months’
    imprisonment based on an offense level of 13 and a criminal history category of
    IV. The statutory maximum sentence for his offense was 10 years’ imprisonment,
    and he was not eligible for probation under the Guidelines.
    The PSI contained the following information with respect to Brasfield’s
    criminal history. He had one prior felony conviction for possession of a controlled
    substance in Tuscaloosa County in 2003. In addition to that felony conviction,
    however, Brasfield had several other convictions that were not felonies. In 1996,
    when Brasfield was 17 years old, he was convicted of possession and distribution
    of a small amount of crack cocaine. In 1997, he was convicted of disorderly
    conduct and criminal coercion in connection with a traffic stop, where he
    repeatedly threatened to kill the investigating officers “Texas style.” In 1998, he
    was convicted of forgery. In 1999, he was convicted of driving with a suspended
    license. In 2000, he was convicted of carrying a firearm without a license. Also in
    3
    2000, Brasfield was convicted of possession of marijuana. In 2006, after the
    instant offense occurred, Brasfield was convicted of harassment for threatening to
    kill two law enforcement officers and their families. Brasfield was also convicted
    of various traffic-related offenses, such as reckless driving, “switching tags,” and
    reckless endangerment and resisting arrest. The probation officer also listed the
    following five offenses for which Brasfield was charged but not convicted: assault
    domestic violence, distribution of controlled substances, reckless endangerment,
    carrying a firearm without a permit, and giving a false name and address to law
    enforcement.
    The probation officer then summarized approximately 20 police reports
    describing incidents implicating Brasfield in criminal activity. Several of these
    incidents involved domestic violence against women and, on three occasions, the
    victims declined to press charges. Several incidents involved Brasfield’s use or
    threatened use of a firearm, including: firing a shotgun at an ex-girlfriend,
    threatening to shoot a mother and her infant son, firing shots into an occupied
    building, threatening a couple with a firearm by shooting at their feet, shooting out
    the tires of a woman’s car, shooting into an occupied vehicle, threatening to shoot
    another individual’s car, and threatening to shoot a woman. Other incidents
    included the commission or attempted commission of armed robbery, burglary, and
    4
    kidnaping.
    The probation officer recommended that the court impose a sentence above
    the high-end of the applicable guideline range based on Brasfield’s criminal
    history. The probation officer noted that in many of the reported incidents
    described above, the victim initially agreed to press charges against Brasfield but
    subsequently declined to do so, thus implying that the victim had been threatened.
    He also pointed out that Brasfield was the leader of the Alberta City (“ABC”)
    Boys, a gang in Tuscaloosa. The probation officer noted that, since 1995,
    Brasfield had been listed as a suspect in 33 cases and had been arrested at least 57
    times by the Tuscaloosa Police Department, thus informing the probation officer’s
    view that Brasfield had not been adequately deterred from engaging in criminal
    conduct. Significantly, the probation officer also stated: “It is noteworthy that the
    Tuscaloosa Chief of Police has recognized a drastic decrease in ABC Gang activity
    since the defendant’s absence.” Based on the above analysis, the probation officer
    recommended that the court vary upward to a sentence of 70 months’
    imprisonment.
    Brasfield raised numerous objections to the PSI not relevant here. However,
    he did object to the assertion that he threatened any law enforcement officer in
    connection with the 2006 harassment offense, to which the probation officer
    5
    responded that the government planned to elicit testimony at the sentencing
    hearing in this regard. He also objected to the inclusion in the PSI of the five
    charges for which he was not convicted and the police reports implicating him in
    criminal activity. He did not object to the inclusion of the police chief’s statement
    that there had been a drastic decrease in ABC gang activity since Brasfield’s
    incarceration.
    At sentencing, defense counsel declined the court’s opportunity to offer any
    argument on his objections to the PSI, and the court overruled them. The court
    noted that it had consulted the advisory guidelines and, having overruled
    Brasfield’s objections, adopted the factual findings and guideline calculations in
    the PSI.
    The court stated that it had extensively reviewed the PSI, which was one of
    the longer ones it had seen, and noted that, while Brasfield only had one prior
    felony conviction, he had a very lengthy criminal history dating back to his 1996
    conviction for possession of crack cocaine. The court pointed out that guns had
    been a part of Brasfield’s life for awhile, as he had previously been convicted of
    carrying a firearm without a license. The court also emphasized the reports of
    domestic violence in the PSI for which Brasfield was not convicted and questioned
    whether Brasfield had prevented the victims from pressing charges through
    6
    intimidation. The court then stated that it had reviewed a letter written by the
    Tuscaloosa Chief of Police to the probation officer, where the police chief
    discussed Brasfield’s criminal history and noted “the fact that since he has been
    arrested and incarcerated, the police have seen a drastic decrease in the criminal
    activity from the Alberta City’s gang.”2 The court then noted that the incidents
    described in the PSI indicated that Brasfield had threatened other people and law
    enforcement officers, and the court stated that it could not ignore that conduct. The
    court again reiterated that, although Brasfield had only one prior felony conviction,
    he had engaged in other felonious conduct for which he could have been convicted
    had it not been for his victims’ fear of pressing charges.
    The court stated that it “ha[d] considered the sentencing factors of 18 U.S.C.
    Section 3553(a) and [found] that those factors outweigh[ed] the advisory guideline
    sentence.” The court explained that it had considered the nature and circumstances
    of the offense and the history and characteristics of the defendant, stating that it
    “had just outlined [its] view of the history and characteristics of the defendant
    which, in [its] opinion, call[ed] for a higher sentence than called for under the
    guidelines.” The court also stated that it had taken into account the need to reflect
    2
    In the text of the letter, and after informing the probation officer about Brasfield’s
    extensive criminal history, the chief of police wrote: “Since the arrest and incarceration of Mr.
    Brassfield [sic] we have seen a drastic decrease of criminal activity from the Alberta City’s
    Gang.” He also requested the court to impose the maximum sentence.
    7
    the seriousness of the offense, promote respect for the law, and provide just
    punishment for the offense, emphasizing that Brasfield had a prior firearm
    conviction and that guns were particularly dangerous when “in the hands of people
    who have a propensity to threaten other people.” The court also opined that it was
    clear from Brasfield’s criminal history that he had no respect for the law and that it
    was “time that he learned that he is not above the law.” With respect to deterrence,
    the court stated that Brasfield had long been engaged in criminal conduct for which
    there had been relatively little punishment, and it was therefore “time for him to
    face the consequences.” The court then stated:
    I have also considered that an appropriate sentence is one that is
    necessary to protect the public from further crimes of this defendant.
    And it’s my belief that until this defendant faces substantial
    punishment and reckons with his conduct, that the public needs
    protection from him.
    I cite the letter from the Chief of Police which indicates that the
    community has been much safer since his departure and I intend to
    provide the public with further protection from him.
    Finally, the court stated that a “significant term of imprisonment” was necessary to
    provide Brasfield with effective correctional treatment.
    Based on this analysis of the § 3553(a) factors, the court imposed a sentence
    of 60 months’ imprisonment, finding it to be reasonable and sufficient but not
    greater than necessary to comply with the statutory purposes of sentencing.
    8
    Defense counsel objected to the court’s consideration of the police chief’s letter on
    the ground that he had not received it before the sentencing hearing and, therefore,
    could not challenge its contents. The court overruled the objection, finding the
    letter to be a mere summary of the criminal history contained in the PSI.
    Although the court had already pronounced its sentence, it reconvened the
    hearing because police officers who were scheduled to testify on the government’s
    behalf arrived in the courtroom. The government called two police officers with
    the City of Tuscaloosa Police Department, who testified that, in October 2006,
    upon responding to a report of gunfire, they encountered Brasfield who threatened
    to kill them and their families. After this testimony, the court noted that Brasfield
    had pled guilty to the harassment offense arising out of this incident, and that the
    officers’ testimony added some detail to the PSI and confirmed the reasons the
    court had previously given for imposing its upward variance. The court also noted
    that the statutory maximum penalty was ten years’ imprisonment and that,
    although it could have imposed such a penalty, it decided that five years’
    imprisonment was sufficient.
    II.
    A.    Due Process and Fed.R.Crim.P. 32(i)(1)(C)
    “We review de novo constitutional challenges to a sentence, assuming they
    9
    are properly preserved.” United States v. Brown, 
    526 F.3d 691
    , 708 (11th Cir.
    2008), petition for cert. filed, (U.S. No. 08-5564) (July 28, 2008).3 The provision
    in Rule 32 on which Brasfield relies to support his due process argument provides:
    “At sentencing, the court . . . must allow the parties’ attorneys to comment on the
    probation officer’s determinations and other matters relating to an appropriate
    sentence.” Fed.R.Crim.P. 32(i)(1)(C).
    In this case, defense counsel did not receive the police chief’s letter before
    sentencing and the district court relied on the letter at sentencing. Nonetheless, we
    decline to decide whether this constituted a violation of Rule 32(i)(1)(C) because,
    even if it did, it was harmless error. See Fed.R.Crim.P. 52(a) (“Any error, defect,
    irregularity, or variance that does not affect substantial rights must be
    disregarded.”); United States v. Patrick, 
    988 F.2d 641
    , 647-49 (6th Cir. 1993)
    (applying harmless error where the sentencing court failed to notify the defendant
    before sentencing that it would rely on extraneous evidence).4
    This is so because the information contained in the police chief’s letter was
    3
    There is confusion among the parties as to whether we should review Brasfield’s
    argument for plain error. However, because we reject Brasfield’s argument under a de novo
    standard of review, we do not decide whether Brasfield sufficiently objected to the police chief’s
    letter at sentencing.
    4
    We do note, however, that other circuits have held that this sort of failure to disclose
    violates Rule 32(i)(1)(C). See, e.g., United States v. Warr, 
    530 F.3d 1152
    , 1161-63 (9th Cir.
    2008); United States v. Meeker, 
    411 F.3d 736
    , 741 (6th Cir. 2005); United States v. Nappi, 
    243 F.3d 758
    , 762-68 (3d Cir. 2001).
    10
    also contained in the PSI, which defense counsel admittedly received and
    reviewed before sentencing. Although most of the letter refers to Brasfield’s
    criminal history, the district court relied only on the following sentence in the
    letter: “Since the arrest and incarceration of Mr. Brasssfield [sic] we have seen a
    drastic decrease of criminal activity from the Alberta City’s Gang.” The court
    relied on this statement in analyzing the need to protect the public from further
    crimes by Brasfield. However, this statement is contained in the PSI, where the
    probation officer, in making his sentencing recommendation, states: “It is
    noteworthy that the Tuscaloosa Chief of Police has recognized a drastic decrease
    in ABC Gang activity since the defendant’s absence.” Defense counsel had the
    opportunity to object to this statement in either his written objections or at
    sentencing, but he failed to do so. In this respect, the Sixth Circuit has found
    harmless error under similar circumstances:
    Where the evidence upon which the sentencing court relies without
    previously notifying the defendant is of the same character, allows the
    same inferences, and, most importantly, is subject to the same
    arguments in rebuttal as evidence in the record of which the defendant
    is already aware, it seems logical to conclude that advance notice
    would not give the defendant any additional incentive or ability to
    challenge the evidence. Accordingly, we hold that, because advance
    notice would not have given Patrick any increased incentive or ability
    to introduce evidence or make arguments in rebuttal, the sentencing
    court’s failure to provide advance notice of its intention to rely on
    matters outside the record constitutes harmless error.
    11
    
    Patrick, 988 F.2d at 648-49
    (citations omitted); see also 
    Nappi, 243 F.3d at 771
    -
    72 (concluding that the defendant could not show that his substantial rights were
    affected under the third prong of plain error review in part because the
    information contained in an undisclosed state PSI, upon which the sentencing
    court erroneously relied, was “largely cumulative” to the information contained in
    the federal PSI). In sum, because the contents of the letter upon which the court
    relied were made available to defense counsel before sentencing, any error in
    failing to disclose the letter before sentencing was harmless.
    B.       Reasonableness of the Sentence
    We review a defendant’s sentence for reasonableness under an abuse-of-
    discretion standard. Gall v. United States, 552 U.S. __, __, 
    128 S. Ct. 586
    , 594,
    
    169 L. Ed. 2d 445
    (2007). The party challenging the sentence “bears the burden of
    establishing that the sentence was unreasonable in light of [the] record and the
    factors in section 3553(a).” United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir.
    2005).
    Brasfield essentially raises two arguments in his brief: 1) the district court
    did not adequately explain its variance; and 2) the district court did not consider
    all of the 18 U.S.C. § 3553(a) factors because it relied exclusively on his history
    and characteristics. We address these arguments in turn.
    12
    Brasfield first contends that the district court did not sufficiently explain the
    reasons for its variance. On this point, the Supreme Court in Gall stated:
    If [the district judge] decides that an outside-Guidelines sentence is
    warranted, he must consider the extent of the deviation and ensure that
    the justification is sufficiently compelling to support the degree of the
    variance. We find it uncontroversial that a major departure should be
    supported by a more significant justification than a minor one.
    552 U.S. at __, 128 S.Ct. at 597. As explained below, although the court imposed
    a significant upward variance in this case, the court provided a sufficient and well-
    reasoned justification for it.
    The court stated that it had reviewed Brasfield’s extensive criminal history
    dating back to 1996 when he was 17 years old and convicted of distribution of a
    small amount of cocaine. It noted that Brasfield was previously convicted for
    carrying a firearm without a license and that guns had been part of his life for
    awhile. The court expressed concern over the reports of domestic violence and
    the implication that Brasfield, through intimidation, had prevented the victims
    from pressing charges. In this respect, the court noted that, although Brasfield had
    only one prior felony conviction, there was evidence of other felonious conduct
    for which he could have been convicted. The court highlighted the police chief’s
    letter indicating that there had been a drastic decrease in the criminal activity of
    the ABC gang since his incarceration. The court explained that, in light of the
    13
    above discussion, Brasfield’s history and characteristics called for a sentence
    above the guideline range.
    The court then proceeded to analyze several of the § 3553(a) factors. The
    court emphasized that guns were particularly dangerous when in the hands of
    people who have the propensity to threaten others. The court further found that, in
    light of his criminal history, Brasfield had no respect for the law and had not been
    adequately deterred from engaging in criminal activity. The court highlighted
    again the statement from the police chief about the decrease in the ABC gang’s
    criminal activity since Brasfield’s incarceration and explained how this informed
    the court’s view that substantial punishment was necessary in order to protect the
    public. The court also found that a significant period of imprisonment was
    necessary to provide Brasfield with effective correctional treatment. Finally, the
    court found that the testimony of the two Tuscaloosa police officers regarding the
    details of Brasfield’s harassment offense confirmed its previous reasons for
    imposing an upward variance.
    The court’s above reasoning was specifically tied to the facts of Brasfield’s
    case, namely his history of criminal activity, and was amply supported by the
    record. Although the court imposed a significant upward variance, it thoroughly
    explained why a sentence above the applicable guideline range was appropriate,
    14
    and there is nothing to suggest that the court abused its discretion in this regard.
    Brasfield next argues that the court’s sentence was unreasonable because
    the court relied too heavily on his history and characteristics and did not consider
    all of the § 3553(a) factors. “Gall makes clear that the district court is obliged to
    consider all of the § 3553(a) factors to determine whether they support the
    sentence requested by a party.” 
    Pugh, 515 F.3d at 1191
    (quotation omitted). The
    factors in § 3553(a) that the court must consider are:
    (1) the nature and circumstances of the offense and the history and
    characteristics of the defendant; (2) the need to reflect the seriousness
    of the offense, to promote respect for the law, and to provide just
    punishment for the offense; (3) the need for deterrence; (4) the need
    to protect the public; (5) the need to provide the defendant with
    needed educational or vocational training or medical care; (6) the
    kinds of sentences available; (7) the Sentencing Guidelines range; (8)
    pertinent policy statements of the Sentencing Commission; (9) the
    need to avoid unwanted sentencing disparities; and (10) the need to
    provide restitution to victims.
    
    Talley, 431 F.3d at 786
    (citing 18 U.S.C. § 3553(a)).
    In Pugh, we discussed the argument that Brasfield advances here:
    Moreover, a district court’s unjustified reliance on any one Section
    3553(a) factor may be a symptom of an unreasonable sentence.
    Likewise, a sentence may be substantively unreasonable when the
    district court . . . fails to consider pertinent section 3553(a) factors.
    We hasten to add that while the application of these analyses may
    suggest an unreasonable sentence, they do not necessarily make a
    sentence unreasonable: Gall itself found that the district court did not
    commit reversible error simply because it attached great weight to a
    15
    single factor. However, it remains uncontroverted that a sentence
    suffering from these symptoms may in fact be unreasonable,
    depending on an examination of the totality of the 
    circumstances. 515 F.3d at 1191-92
    (citations, quotations, and alterations omitted).
    As an initial matter, Brasfield ignores the fact that the district court in this
    case expressly stated that it had “considered the sentencing factors of 18 U.S.C.
    Section 3553(a) and [found] that those factors outweigh[ed] the advisory
    guideline sentence.” Moreover, as discussed below, the record confirms that the
    district court did consider the pertinent § 3553(a) factors.
    First, the district court considered the nature, circumstances, and
    seriousness of Brasfield’s offense. 18 U.S.C. § 3553(a)(1), (a)(2)(A). Although
    the court did not discuss the specific facts of his offense, the court emphasized
    Brasfield’s historic involvement with firearms – especially his previous firearm
    conviction – and the fact that guns were particularly dangerous in the hands of
    those who have the propensity to harm others. In this respect, the court’s
    statement was supported by the fact that numerous incidents described in the
    police reports involved Brasfield’s actual or threatened use of firearms. Thus,
    although Brasfield’s offense may have been a standard felon-in-possession
    offense, the court sufficiently considered the nature and seriousness of his offense
    in light of his historic involvement with firearms.
    16
    In addition, and as Brasfield concedes at one point in his brief, the court
    also considered the applicable guideline range. 18 U.S.C. § 3553(a)(4). The court
    stated that it had considered the advisory guidelines, clarified that Brasfield’s
    guideline range was 24 to 30 months’ imprisonment, and explained that it was
    imposing a variance above that range for the reasons explained above.
    The court’s consideration of the advisory guidelines also undermines
    Brasfield’s argument that the court should have discussed the possibility that,
    under § 3553(a)(6), its variance might create sentencing disparities with other
    similarly situated defendants. This is so because the Supreme Court in Gall
    rejected a similar argument:
    As with the seriousness of the offense conduct, avoidance of
    unwarranted disparities was clearly considered by the Sentencing
    Commission when setting the Guidelines ranges. Since the District
    Judge correctly calculated and carefully reviewed the Guidelines
    range, he necessarily gave significant weight and consideration to the
    need to avoid unwarranted disparities.
    552 U.S. at __, 128 S.Ct. at 599. Furthermore, we have held that it is sufficient
    for the district court to acknowledge that it has considered the § 3553(a) factors,
    but it need not explicitly discuss each of them. United States v. Scott, 
    426 F.3d 1324
    , 1329 (11th Cir. 2005). Thus, the court’s failure to specifically discuss the
    sentencing disparity factor is not fatal. In this respect, the present case does not
    represent an extreme situation like the one in Pugh, where the district court
    17
    imposed a non-custodial sentence for a child pornography offense, but failed to
    explain how this sentence would avoid creating “profound disparities with other
    similarly situated defendants” in light of the fact that we were unable to locate
    another child pornography case where the court imposed a non-custodial 
    sentence. 515 F.3d at 1202-03
    .
    With respect to § 3553(a)(5), Brasfield does not identify any “pertinent”
    policy statements that were applicable in this case. It is noteworthy, however, that
    there is a policy statement providing for an upward departure if the defendant
    receives an enhancement for his involvement in a criminal street gang under 18
    U.S.C. § 521. U.S.S.G. § 5K2.18. Although this policy statement is inapplicable
    to Brasfield because he did not receive the § 521 enhancement, it appears to be the
    most relevant policy statement to this case and, due to Brasfield’s involvement in
    the ABC gang, does not work in his favor. Thus, this case is again unlike Pugh,
    where the district court did not impose a period of supervised release, despite the
    fact that the Commission’s applicable policy statement recommended the statutory
    maximum period of supervised release for sex 
    offenders. 515 F.3d at 1199
    .
    Finally, Brasfield does not explain how the court erred by not discussing the
    “kinds of sentences available” under § 3553(a)(3), as a non-custodial sentence of
    probation was not authorized in this case, and the court did find that a “significant
    18
    period of imprisonment” was necessary in order to provide Brasfield with the
    most effective correctional treatment.
    Despite considering all of the pertinent § 3553(a) factors, Brasfield is
    correct that the district court relied primarily on his criminal history to justify its
    variance. However, this reliance was not “unjustified” under the facts of this case.
    See 
    Pugh, 515 F.3d at 1191
    (“Moreover, a district court’s unjustified reliance on
    any one Section 3553(a) factor may be a symptom of an unreasonable sentence.”)
    (emphasis added). The court commented that the PSI was one of the longest ones
    it had ever seen in light of Brasfield’s lengthy criminal history. Similarly, in his
    recommendation, the probation officer explained at length why he believed that
    Brasfield’s criminal history justified an upward variance of up to 70 months’
    imprisonment. Thus, the district court in this case did not ignore relevant factors,
    but rather justifiably focused its attention on the one outstanding aspect of the
    case, namely, Brasfield’s criminal history. See 
    Pugh, 515 F.3d at 1203
    (“[T]he
    district court must give some weight to the factors in a manner that is at least
    loosely commensurate with their importance to the case . . . .”). Indeed, it would
    have been suspect had the district court not focused on Brasfield’s criminal
    history. Furthermore, the government correctly points out that we have stated that
    it is in the district court’s discretion regarding what weight to given to particular
    19
    factors. See United States v. Amedeo, 
    487 F.3d 823
    , 832 (11th Cir.) (“The weight
    to be accorded any given § 3553(a) factor is a matter committed to the sound
    discretion of the district court, and we will not substitute our judgment in
    weighing the relevant factors.”) (quotations and alterations omitted), cert. denied,
    
    128 S. Ct. 671
    (2007). Accordingly, and for the reasons set out above, Brasfield
    has not met his burden to show that his sentence was unreasonable.
    III.
    In sum, any error committed by the district court in failing to disclose the
    police chief’s letter before sentencing was harmless, as the contents of the letter
    upon which the court relied were contained in the PSI. In addition, Brasfield has
    not met his burden to show that his sentence was unreasonable, as the district
    court sufficiently explained the reasons for its variance, considered all of the
    pertinent § 3553(a) factors, and justifiably relied on Brasfield’s lengthy criminal
    history. Accordingly, we affirm Brasfield’s sentence.
    AFFIRMED.
    20