United States v. William D. Cook

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 1, 2007
No. 07-10647 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00404-CR-T-24-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM D. COOK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 1, 2007)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
William Cook appeals his 235-month sentence for distribution of cocaine
base, in violation of 21 U.S.C. § 841. On appeal, Cook makes two arguments.1
First, he argues that the imposition of harsher sentences for crack cocaine as
opposed to powder cocaine is fundamentally unfair, without rational basis and
discriminatory in its application. Cook raises this argument for the first time on
appeal and therefore, we review only for manifest injustice or plain error. See
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). We have
previously held that a sentencing scheme providing for harsher penalties for
cocaine base than for powder cocaine is constitutional. United States v. King, 972
F.3d 1259, 1260 (11th Cir. 1992). As such, we find that the district court did not
err in its sentencing calculation.
Second, Cook argues that the sentence imposed by the district court was
greater than necessary and unreasonable. When, as here, the district court correctly
calculates the Sentencing Guidelines and indicates that it has considered the factors
set forth in § 3553(a), our review of the final sentence is for reasonableness.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
1
Cook also lists the issue of whether the district court erred in failing to grant “an
additional” downward departure based on the over-representation of his criminal history.
However, he fails to present any arguments regarding this issue. Accordingly, he has waived the
issue. See Fed. R. App. P. 28(a)(9)(A); Transamerica Leasing, Inc. v. Inst. of London
Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005).
2
unreasonable in the light of both [the] record and the factors in section 3553(a).”
Id. at 788. We find that Cook has failed to satisfy this burden with regard to his
final sentence, which was 57 months below the low end of the guideline range.
Accordingly, we affirm.
AFFIRMED
3