United States v. Corey Dukes

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16410 ELEVENTH CIRCUIT
JUNE 2, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00054-CR-1-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY DUKES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 2, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Corey Dukes appeals his 20-month above-guidelines-range sentence for a
single count of passing and uttering, with intent to defraud, counterfeit Federal
Reserve notes, in violation of 18 U.S.C. § 472. On appeal, he contends that the
district court’s imposition of an upward variance over the 6 to 12 month guideline
imprisonment range rendered his sentence substantively unreasonable and violative
of 18 U.S.C. § 3553(a). Specifically, he asserts that the district court’s application
of the § 3553(a) factors to justify the upward variance was unreasonable because
the guidelines range already accounted for the same § 3553(a) factors.
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 applicable advisory guidelines range. Gall v. United States, 552 U.S.
38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).
“[T]he party who 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). 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).
The § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence
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imposed–(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct; (C) to protect
the public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available; (4) [the sentencing guidelines
range;] (5) any pertinent policy statement [of the Sentencing
Commission;] (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any victims
of the offense.
18 U.S.C. § 3553(a). In addition, the district court must impose a sentence that is
“sufficient, but not greater than necessary, to comply with the purposes set forth in
[§ 3553(a)(2)].” Id.
“[W]e recognize that there is a range of reasonable sentences from which the
district court may choose.” Talley, 431 F.3d at 788. 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); United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005).
More particularly, “[i]n reviewing the reasonableness of a sentence outside
the Guidelines range, appellate courts may [ ] take the degree of variance into
account and consider the extent of a deviation from the Guidelines.” Gall, 552
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U.S. at 47, 128 S.Ct. at 594-95. Generally, “a major departure [, i.e., variance,]
should be supported by a more significant justification than a minor one.” Id. at 50,
128 S.Ct. at 597. Nevertheless, no “presumption of unreasonableness” attaches to
a sentence outside the guidelines range. Id. at 47, 128 S.Ct. at 595. Likewise,
“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.” Id. at 48, 128 S.Ct. at 595.
In sum, “[b]ecause of its institutional advantage in making sentence
determinations, a district court has considerable discretion in deciding whether the
§ 3553(a) factors justify a variance and the extent of one that is appropriate.”
United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.) (quotations and citation
omitted), cert. denied, 129 S.Ct. 2847 (2009). Stated differently,
[w]e may vacate a sentence because of the variance only if we are left
with the definite and firm conviction that the district court committed
a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.
Id. (quotation omitted). “[T]hat we might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal.” Id. (quotation
omitted).
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In sentencing the appellant, the district court gave this explanation:
Now the court has conducted an upward variance here pursuant to the
factors identified in 18 U.S.C. 3553(a).
As I said on two or three occasions here in the last few minutes, this is
not the Defendant’s first criminal endeavor. He has two prior felony
convictions: burglary of a conveyance and delivery of cocaine. Now
granted, the Defendant’s convictions occurred when he was several
years younger. But the treatment of those offenses that are in a
Category I gives him great benefit and leniency and does not, in the
Court’s opinion, adequately reflect the history and characteristics of
this Defendant.
As the prosecutor pointed out, he had opportunities to withdraw. He
made one previous criminal excursion in this area. And so, the
advisory sentence in this case, the Court finds, does not adequately
address the offense.
Upon consideration of the record on appeal, and after review of the parties’
briefs, we hold that the district court’s imposition of the upward variance did not
amount to an abuse of discretion. Specifically, Dukes’s sentence was well below
the statutory maximum term of imprisonment and exceeded the top end of the
guidelines range by only eight months. Additionally, the district court, in
justifying the upward variance, applied the 18 U.S.C. § 3553(a) factors in a
reasonable fashion, even if the guidelines range itself already accounted for many
of the same factors. As a result, we cannot say that Dukes’s sentence was
substantively unreasonable. We therefore affirm.
AFFIRMED.
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