United States v. Frederick Grant Ballard ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 3, 2008
No. 07-11181 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14070-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK GRANT BALLARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 3, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Frederick Grant Ballard appeals his sentence, imposed after he pled guilty to
possession with intent to distribute methamphetamine and possession of a firearm
by a convicted felon, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 922(g)(1). Ballard argues that (1) the district court violated Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny in
determining the amount of methamphetamine for which he was responsible;
(2) used an amount of methamphetamine not supported by the evidence; and
(3) imposed a procedurally unreasonable sentence. For the reasons set forth more
fully below, we affirm.
Ballard was charged by information that was silent as to the amount of
methamphetamine involved in his offense. At his change-of-plea hearing, the
government indicated that it could prove that 1.9 grams of actual
methamphetamine were confiscated from Ballard’s home. In a presentence
investigation report (“PSI”), the probation officer indicated that a Drug
Enforcement Agency (“DEA”) lab report showed that 31.5 grams of a substance
containing methamphetamine, namely 1.9 grams of actual methamphetamine, were
confiscated from Ballard’s home. Accordingly, the PSI set Ballard’s base offense
level at 22. In his objections to the PSI, Ballard argued that he should not be
sentenced according to the total weight of the substance confiscated, since he pled
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guilty only in reference to the amount of actual methamphetamine found therein,
such that his base offense level should be set at 18. Ballard alternatively objected
that the substance confiscated weighed less than 30 grams.
At his sentencing hearing, Ballard indicated that his was “purely a legal
objection” based on Apprendi and did not pursue any alternative argument that the
substance confiscated weighed less than 30 grams. The district court overruled the
legal objection and adopted the PSI. Also at this hearing, Ballard indicated that he
was addicted to methamphetamine and requested drug treatment while
incarcerated. The district court acknowledged that it had considered these
statements, the PSI, the advisory Sentencing Guidelines, and “other factors” and
imposed a 57-month sentence. The district court also ordered that Ballard receive
substance abuse counseling while incarcerated.
I. Apprendi
Pursuant to 21 U.S.C. § 841(b), a defendant found guilty of an offense
involving 50 grams or more of methamphetamine or 500 grams or more of a
mixture containing methamphetamine is subject to a term of imprisonment
between 10 years and life. 21 U.S.C. § 841(b)(1)(A)(viii). A defendant found
guilty of an offense involving 5 grams or more of methamphetamine or 50 grams
or more of a mixture containing methamphetamine is subject to a term of
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imprisonment between 5 and 40 years. 21 U.S.C. § 841(b)(1)(B)(viii). A
defendant found guilty of an offense involving any other amount of
methamphetamine or a mixture containing methamphetamine is subject to a term
of imprisonment no greater than 20 years. 21 U.S.C. § 841(b)(1)(C).
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490-93, 120 S.Ct. at 2362-64. In Blakely v. Washington, 542
U.S. 296, 301, 303-04, 124 S. Ct. 2531, 2536, 2537, 159 L. Ed. 2d 403 (2004), the
Supreme Court clarified that the relevant “statutory maximum for Apprendi
purposes is the maximum a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
In United States v. Booker, 543 U.S. 220, 243-44, 125 S. Ct. 738, 755-56,
160 L. Ed. 2d 621 (2005), the Supreme Court applied Blakely to the Guidelines and
reaffirmed that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant or proved to a
jury beyond a reasonable doubt.” The Booker Court also held that the Guidelines
are advisory. Id. at 261, 125 S.Ct. at 765. Accordingly, after Booker, there are two
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types of error that a district court might commit in sentencing a defendant:
constitutional error, which “occurs when extra-verdict enhancements are used to
reach a result under [the Guidelines] that is binding on the sentencing judge,” and
statutory error, which “consists in sentencing a defendant under the Guidelines as
if they were mandatory and not advisory, even in the absence of a Sixth
Amendment violation.” United States v. Lee, 427 F.3d 881, 891 (11th Cir. 2005),
cert. denied, 126 S. Ct. 1447 (2006).
In United States v. Burge, 407 F.3d 1183, 1191 (11th Cir.), cert. denied, 546
U.S. 981 (2005), we considered whether the district court had violated Blakely by
applying a firearm-enhancement. We noted that, while the defendant had
challenged the enhancement in his objections to the PSI, he had abandoned the
challenge at his sentencing hearing and, therefore, had impliedly admitted the facts
necessary for the enhancement. Id. We concluded that application of the
enhancement was not unconstitutional. Id.
The district court did not commit constitutional error under Apprendi and its
progeny. The district court did not impose a sentence beyond that authorized by
the facts established by Ballard’s guilty plea. See Apprendi, 530 U.S. at 490-93,
120 S. Ct. at 2362-64; Booker, 543 U.S. at 243-44, 125 S.Ct. at 755-56. In
pleading guilty to possession with intent to distribute any quantity of
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methamphetamine, Ballard became subject to up to 20 years’ imprisonment. See
21 U.S.C. § 841(b)(1)(C). Ballard’s ultimate 57-month sentence did not exceed
this statutory maximum. Moreover, Ballard admitted his responsibility for 31.5
grams of methamphetamine. See Burge, 407 F.3d at 1191. At his sentencing
hearing, Ballard expressly stated that his was a legal objection based on Apprendi.
Therefore, he abandoned any objection to the PSI’s factual drug-amount finding.
See Burge, 407 F.3d at 1191.1 The district court also did not commit statutory
error under Apprendi and its progeny. At the sentencing hearing, the district court
expressly stated that it had treated the Guidelines as advisory. Accordingly, we
affirm Ballard’s sentences as to this issue. See Booker, 543 U.S. at 243-44, 261,
125 S. Ct. at 755-56, 765.
II. Drug Amount
When a defendant raises a sentencing objection for the first time on appeal,
as here, we review for plain error. United States v. Dorman, 488 F.3d 936, 942
(11th Cir.), cert. denied, 128 S. Ct. 427 (2007). The Guidelines’ drug quantity table
sets the base offense level for offenses involving at least 30 grams, but less than 40
1
While Ballard did raise an alternative objection that he was responsible for less than 30
grams of methamphetamine in response to the PSI, he expressly stated at the sentencing hearing
that he had only a legal objection and did not pursue any arguments as to the alternative
objection. In any event, as noted above, Ballard was sentenced well within the statutory
maximum of 20 years’ imprisonment applicable to an offense involving any quantity of
methamphetamine. See 21 U.S.C. § 841(b)(1)(C).
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grams, of methamphetamine, or at least 3 grams, but less than 4 grams of
methamphetamine (actual), at 22. U.S.S.G. § 2D.1(a)(3). The drug quantity table
sets the base offense level for offenses involving at least 10 grams, but less than 20
grams, of methamphetamine, or at least 1 gram, but less than 2 grams, of
methamphetamine (actual), at 18. Id. Pursuant to the commentary to the drug
quantity table, the term “Methamphetamine (actual)” refers to the weight of the
controlled substance contained in the mixture or substance in question. U.S.S.G.
§ 2D1.1, Drug Quantity Table, comment. (n. B). Also pursuant to the commentary,
when an offense involves a mixture or substance of methamphetamine, the district
court should “use the offense level determined by the entire weight of the mixture
or substance, or the offense level determined by the weight of the
. . . methamphetamine (actual), whichever is greater.” Id. When a defendant fails
to object to a finding of fact contained in the PSI, the district court is entitled to
rely upon that finding. United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th
Cir. 1994).
The evidence supports the district court’s finding that Ballard was
responsible for 31.5 grams of methamphetamine. The PSI stated that a DEA lab
report indicated that the substance confiscated from Ballard’s home weighed 31.5
grams. Ballard has conceded that the lab report included this amount and has not
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argued that the report was not credible. Furthermore, Ballard has provided no
argument as to why he should be held responsible for less than 31.5 grams of
methamphetamine. Moreover, to the extent the district court relied on the PSI’s
factual finding as to drug amount, it was entitled to do so, as Ballard had
abandoned any objection to this finding of fact. See Perez-Tosta, 36 F.3d at 1564.
The record also supports the district court’s decision to hold Ballard responsible
for 31.5 grams of methamphetamine, rather than 1.9 grams of actual
methamphetamine. The base offense level for a defendant responsible for 31.5
grams of methamphetamine is higher than that for a defendant responsible for 1.9
grams of actual methamphetamine. See U.S.S.G. § 2D1.1(c). Accordingly, the
district court did not commit plain error in determining the appropriate drug
amount, and we affirm Ballard’s sentences as to this issue. See Dorman, 488 F.3d
at 942.
III. Procedural Reasonableness
We can review a sentence for procedural or substantive unreasonableness.
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may
be procedurally unreasonable if it is the product of a procedure that does not
follow Booker’s requirements, regardless of the actual sentence. Id. A sentence
may be substantively unreasonable, regardless of the procedure used. Id.
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In determining if the district court imposed a reasonable sentence, we refer
to the factors set out in § 3553(a). United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006). Pursuant to § 3553(a), the sentencing court shall impose a
sentence “sufficient, but not greater than necessary” to comply with the purposes
of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the
offense, promoting respect for the law, providing just punishment for the offense,
deterring criminal conduct, protecting the public from future criminal conduct by
the defendant, and providing the defendant with needed educational or vocational
training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the
sentencing court to consider certain factors, including the nature and circumstances
of the offense, the history and characteristics of the defendant, the guideline
imprisonment range, and the need to avoid unwarranted sentencing disparities. See
18 U.S.C. § 3553(a)(1), (4), and (6).
We do not require the district court to discuss or to state that it has explicitly
considered each factor of § 3553(a). United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005). Instead, an explicit acknowledgment that the district court has
considered the defendant’s arguments and the § 3553(a) factors will suffice.
United States v. Scott, 436 F.3d 1324, 1329-30 (11th Cir. 2005). Also, we have
upheld a sentence as reasonable, even though the district court failed to articulate
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that it had considered any of the § 3553(a) factors, because the record made clear
that the district court had considered the relevant factors, as it had considered the
defendant's objections and a motion for downward departure filed by the
dependant. Dorman, 488 F.3d at 944. Indeed, the Supreme Court recently
explained that, “when the record makes clear that the sentencing judge considered
the evidence and arguments,” the district court need not explain its choice of
sentence beyond a brief statement, especially when a case is conceptually simple.
Rita v. United States, - - U.S. - -, 127 S. Ct. 2456, 2469, 168 L. Ed. 2d 203 (2007).
While the district court did not expressly acknowledge that it had considered
the § 3553(a) factors, the record indicates that the district court considered all
relevant evidence. See Dorman, 488 F.3d at 944; Rita, - - U.S. at - -, 127 S. Ct. at
2469. The district court explicitly acknowledged that it had considered the PSI and
the Guidelines. The district court also explicitly acknowledged that it had
considered Ballard’s explanation that he was addicted to methamphetamine and
request of drug treatment. Accordingly, the district court considered the need to
provide medical care and the nature and characteristics of Ballard. See 18 U.S.C.
§ 3553(a)(1), (2). Moreover, Ballard has not argued, and the record does not
demonstrate, that any factor of this case was complex, such that an extensive
explanation of the district court's choice of sentence was required. See Rita, - -
U.S. at - -, 127 S. Ct. at 2469. Accordingly, Ballard’s sentence was not
procedurally unreasonable, and we affirm his sentences as to this issue.
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AFFIRMED.
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