United States v. Paul Makos

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 20, 2009
No. 08-15654 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20032-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL MAKOS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 20, 2009)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Paul Makos appeals his 37-month sentence for being a convicted felon in
possession of firearms and ammunition in violation of 18 U.S.C. § § 922(g)(1),
924(e)(2). On appeal, Makos argues that his sentence was substantively
unreasonable because the district court failed to adequately consider 18 U.S.C. §
3553(a) factors prior denying his request for a downward variance below the
United States Sentencing Guidelines (“Guidelines”) range.
I. BACKGROUND
Makos, a prior convicted felon, pled guilty to the charged offense for
possession of one or more firearms and ammunition. During the sentencing
hearing, the district court assigned Makos a base offense level of 21 and found the
applicable Guideline range to be between 37 and 46 months. Doc. 87 at 59.
Makos however, requested that the district court give him a more lenient sentence
by granting him a downward variance from the Guidelines range. The government
recommended a sentence at the low end of the Guidelines range. The district court
agreed and sentenced Makos to 37 months. After review of the record and the
briefs, we affirm.
II. STANDARDS OF REVIEW
We review the district court’s decision not to grant Makos a downward
variance from the Guidelines range for reasonableness in light of the sentencing
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factors set forth in 18 U.S.C. § 3553(a). See United States v. Johnson, 485 F.3d
1264, 1272 (11th Cir. 2007). We review the reasonableness of a sentence imposed
on a defendant for a deferential abuse of discretion. United States v. Beckles, 565
F.3d 832, 845 (11th Cir. 2009).
III. DISCUSSION
As an initial matter, the government’s argument that Makos did not object to
his sentence on procedural or substantive grounds, and that Makos is only entitled
to relief if he can establish plain error affecting his substantial rights, is meritless.
In his sentencing memorandum, Makos explicitly asked the district court for a
below-Guideline sentence, arguing that such a sentence was justified by the §
3553(a) factors.1 During the sentencing hearing, Makos again asked the district
court for a downward variance. Therefore, Makos has properly preserved the issue
on appeal. Thus, the central issue is whether the district court erred in its
determination not to lower Makos’ sentence below the Guidelines range.
Turning to the merits of the case, Makos does not challenge the procedural
1
In addition to the applicable Guidelines range, Section 3553(a) provides that district
courts must consider, inter alia, (1) the nature and circumstances of the offense; (2) the history
and characteristics of the defendant; (3) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (4) the need for adequate deterrence to criminal conduct; (5) protection of the public
from further crimes of the defendant; and (6) the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).
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measures taken by the district court when fashioning his sentence.2 Rather, Makos
argues that although his 37-month sentence is at the low end of the Guidelines
range, his sentence is substantively unreasonable. In support of this argument, he
contends that the district court failed to consider whether a downward variance was
appropriate based on a totality of the circumstances which includes consideration
of the § 3553(a) factors prior to imposing his sentence. Gall v. United States, 552
U.S. 38, 128 S. Ct. 586, 597 (2007); see 18 U.S.C. § 3553(a) (permitting variance
pursuant to sentencing factors). Makos explained to the district court that his prior
felony conviction occurred twenty-eight (28) years ago. He added that most of the
firearms at issue in this case were inherited from his father, and they were not
intended to further unlawful conduct. Based on this, Makos argued that it would
be unfair to severely penalize him for something that happened so long ago, so a
sentence below the Guidelines range is warranted. The district court found this
2
Generally, if a defendant challenges the reasonableness of the overall sentence, we must
consider the correctly calculated advisory Guidelines range and the 18 U.S.C. § 3553(a) factors.
Johnson, 485 F.3d at 1272. Therefore, our review for reasonableness consists of two steps.
Beckles, 565 F.3d at 845; United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we
must verify that the district court did not commit a procedural error, such as failing to properly
calculate the Guidelines range, failing to adequately explain the chosen sentence including an
explanation for any deviation from the Guidelines, or selecting a sentence based on clearly
erroneous facts. Beckles, 565 F.3d at 845. Second, “[i]f the district court did not procedurally
err, then we must consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard, based on the totality of the circumstances.” Id. (internal quotes and
citations omitted). In the instant case, Makos does not contend that his 37-month sentence is
procedurally unreasonable.
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argument unpersuasive.
Review of a district court’s decision regarding downward variances is
subject to deference so long as it is reasonable in light of the § 3553(a) factors.
See United States v. Willis, 560 F.3d 1246, 1251 (11th Cir. 2009). Consequently,
this Court grants deference to a district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of any variance, or its decision to refrain from
granting a downward departure. See Gall, 552 U.S. 38, 128 S. Ct. at 597.3
Moreover “the weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court, and [this Court] will not
substitute [its] judgment in weighing the relevant factors.” United States v.
Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotations omitted). Since
we review the “totality of the circumstances,” a district court need not discuss each
§ 3553(a) factor if the judge imposes a sentence within the Guidelines range.
Pugh, 515 F.3d at 1191 n. 8. The burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors is on the party
challenging the sentence. Johnson, 485 F.3d at 1272.
3
In Gall, the Supreme Court advised that an appellate court “may consider the extent of
the deviation, but must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” See Gall, 552 U.S. 38, 128 S. Ct. at 597.
Although the court did not deviate from the Guidelines range in the instant case, Gall makes
clear that district court’s decision whether to grant such a variance and its consideration of the §
3553(a) factors is afforded deference.
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After review, we conclude that Makos has not met this burden. Contrary to
Makos’ argument, the record reflects that the district court explicitly considered a
number of § 3553(a) factors prior to imposing a sentence. To begin with, the
district court expressly stated that it “considered” the “statutory factors,” finding
that the most “appropriate and reasonable sentence” was 37 months. Doc. 87 at 90.
The district court then engaged in an examination of those factors as it applied to
Makos’ offenses.
Pursuant to the § 3553(a) factors, the district court examined “the history
and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The district court
found that Makos: (1) had been convicted, in 1980, of aggravated assault,
kidnaping, and possession of a weapon to commit an offense, and (2) had been
convicted, in 2004, of brandishing a firearm. The district court, therefore,
observed that Makos had continuously been in possession of firearms in defiance
of the law for the past twenty-eight (28) years. This discussion emphasizes the
district court’s uneasiness with Makos’ repetitive history for possessing destructive
devices as a prior convicted felon, and the necessity promote respect for the law
pursuant to 18 U.S.C. § 3553(a)(2)(A). As such, the district court properly deduced
that there was a “real issue here about acceptance of responsibility,” and that
Makos was devoid of an “appreciation of the danger” to which he exposed others.
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Doc. 87 at 86. Consequently, it properly concluded that even though there are
people who “love him and respect him and appreciate him,” Makos’ history
prompted the district court’s concern that his character appeared to be “someone
who is willing to endanger the other people living in his condominium to this
degree.” Id. at 92. This is especially true when the convicted felon exposes the
weapon, threatening people in their community.
Indeed, as a matter of principle, it is well settled that convicted felons are not
permitted to be in possession of firearms, explosive chemicals, or to brandish
firearms. Therefore, the district court did not abuse its discretion when it
determined that there is a necessity to “protect the public from further crimes of the
defendant” pursuant to 18 U.S.C. § 3553(a)(2)(C). In doing so, the district court
acknowledged Makos’ arguments for a sentence below the Guidelines range.
Additionally, at the sentencing hearing, the district court stated that it was
“really worried that Mr. Makos is a danger to the community.” Doc. 87 at 90. The
district court also noted that because Makos was found to have dangerous
chemicals, “the whole building [c]ould have gone up like a bomb, not to speak of
the buildings nearby. It’s inexplicable. I don’t understand it, but it makes me very
fearful that Mr. Makos is a danger to the community.” Id. at 93. In view of the
district court’s findings, it appropriately rationalized that it could not “in good
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conscious to the community” grant Makos a downward variance from the
Guidelines range. Id. In light of the scope and severity of Makos’ offenses, we
cannot say that the district court imposed an unreasonable sentence by denying
Makos’ request for a downward variance from the Guidelines.
IV. CONCLUSION
The record thus reflects the district court’s adequate consideration of the §
3553(a) factors. Accordingly, the district court has not abused its discretion, and
we affirm its decision.
AFFIRMED.
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