United States v. Amarrio Grissom

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 8, 2008
No. 08-10863 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00011-CR-TWM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMARRIO GRISSOM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 8, 2008)
Before TJOFLAT, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Amarrio Grissom appeals from his 151-month sentence imposed after he
pled guilty to possession with intent to distribute a quantity of cocaine base in
violation of 21 U.S.C. § 841. On appeal, Grissom argues that his sentence was
unreasonable because the district court: (1) did not properly consider the factors in
18 U.S.C. § 3553(a), specifically § 3553(a)(1), the nature of the offense and his
history and personal characteristics; and (2) did not consider the disparities in the
Guidelines’ treatment of crimes involving crack cocaine as opposed to cocaine
powder. After thorough review, we affirm.
We review the ultimate sentence imposed by a district court for
“reasonableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting
Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).
Our reasonableness review consists of two steps. Pugh, 515 F.3d at 1190.
First, we must “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence -- including an explanation for any deviation from the
Guidelines range.’” Id. (quoting Gall v. United States, 128 S. Ct. 586, 597
(2007)).1 If we conclude that the district court did not procedurally err, we must
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
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consider the “‘substantive reasonableness of the sentence imposed, under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.
(quoting Gall, 128 S. Ct. at 597). “The party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both th[e]
record and the factors in section 3553(a).” United States v. Thomas, 446 F.3d
1348, 1351 (11th Cir. 2006) (internal quotation omitted).
We are unpersuaded by Grissom’s argument that the district court
procedurally erred in failing to properly consider the § 3553(a) factors. At
sentencing, the court stated that it had “listened to the defendant and defendant’s
counsel . . . reviewed the presentence investigation report . . . and considered the
factors set forth in [§ 3553(a)].” The record thus reflects the district court’s
adequate consideration of the § 3553(a) factors. Indeed, “the district court need
only acknowledge that it considered the § 3553(a) factors, and need not discuss
each of these factors in either the sentencing hearing or in the sentencing order.”
United States v. Amedeo, 487 F.3d 823, 833 (11th Cir.), cert. denied, 128 S. Ct.
671 (2007) (internal quotation and punctuation omitted); United States v. Talley,
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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431 F.3d 784, 786 (11th Cir. 2005) (stating that “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. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005) (“nothing in Booker or elsewhere requires the district court
to state on the record that it has explicitly considered each of the § 3553(a) factors
or to discuss each of the § 3553(a) factors”).
We likewise reject Grissom’s argument that his sentence is unreasonable in
light of Kimbrough v. U.S., 128 S. Ct. 558 (2007). In Kimbrough, the Supreme
Court recognized that the Guidelines recommend harsher sentences for conduct
involving crack cocaine than for conduct involving powder cocaine, and held that,
given the advisory nature of the Guidelines, a district court may consider this
disparity when determining an appropriate sentence. Id. at 575-76. Here,
however, Grissom pled guilty to possession of a quantity of cocaine base, a charge
which specifies neither the amount nor type of cocaine he possessed. Further, his
offense level was based on his status as a career offender, which similarly does not
distinguish between crack and powder cocaine. Thus, the range suggested by the
Guidelines -- and adopted by the district court -- was not the result of the disparity
discussed in Kimbrough. In addition, although Kimbrough allows a district court
to deviate from the Guidelines’ recommendation because of policy concerns, it
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does not mandate such deviation, nor does Kimbrough change the standard of
review on appeal. See id. at 576.
In short, Grissom’s within-Guidelines sentence is neither procedurally nor
substantively unreasonable, and the district court did not abuse its discretion in
imposing it.2
AFFIRMED.
2
See Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a presumption
of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491 F.3d 1306, 1314
n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-Guidelines
sentence a presumption of reasonableness, the Rita decision calls that policy into question).
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