United States v. Sanders

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15958 AUG 17, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:10-cr-00150-WTM-GRS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ANTONIO LENARD SANDERS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 17, 2011)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Antonio Lenard Sanders appeals his 92-month sentence imposed after pleading
guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). On appeal, he argues that the district court clearly erred in finding that this
conviction was his fourth firearm conviction, and thus that, because the court
sentenced him based on this erroneous factual finding, his sentence is procedurally
unreasonable. After thorough review, we affirm.
We review the sentence a district court imposes 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, 551 U.S. 338,
351 (2007)). In reviewing sentences for reasonableness, we typically perform two
steps. Id. at 1190. First, we “‘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, 552 U.S. 38, 51
(2007)).1 “A factual finding is clearly erroneous when although there is evidence to
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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
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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support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d
1322, 1330 (11th Cir. 2007) (quotation omitted). “Although review for clear error is
deferential, a finding of fact must be supported by substantial evidence.” Id. The
district court “may base its factual findings on undisputed statements found in the PSI
[presentence investigation report], because they are factual findings to which the
defendant has assented.” United States v. Beckles, 565 F.3d 832, 843 (11th Cir.
2009). “It is the law of this circuit that a failure to object to allegations of fact in a
PSI admits those facts for sentencing purposes and precludes the argument that there
was error in them.” Id. at 844 (quotations omitted).
If we conclude that the district court did not procedurally err, we typically
consider the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,
515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). “The party challenging the sentence
bears the burden to show it is unreasonable in light of the record and the § 3553(a)
factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131
S.Ct. 674 (2010).
Here, the district court did not clearly err with regard to Sanders’s criminal
history. First, to the extent that Sanders argues that his sentence was based on the
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court’s erroneous factual finding that he had four “firearm convictions,” this
argument lacks support in the record. The district court did state initially that the
instant conviction was the “fourth firearm conviction involving Mr. Sanders,” but the
court then described each of the previous three convictions as offenses “involving”
firearms. The court’s description of those offenses, as well as the court’s assertion
that it had heard the parties’ arguments and reviewed the PSI, indicates that the court
was aware of the nature of the previous convictions. Furthermore, when Sanders
objected to the court’s characterization of his 2002 offense as being a “firearm
conviction,” the court’s response -- that the 2002 offense “involved” a firearm, that
the court was aware that Sanders was not “charged with a firearm” for that offense,
and that the instant firearm conviction was his “fourth offense involving a firearm” --
shows that the court was aware that he had not actually been convicted of firearm
offenses in the past, and that the court’s sentencing decision was based on the fact
that each of those previous convictions “involved” firearms.
Moreover, the record supports the court’s factual finding that the instant
conviction was Sanders’s fourth conviction that involved firearms. According to the
PSI, Sanders had three previous convictions involving firearms: (1) in 1995, he used
a firearm to forcibly take money from another person, which resulted in a conviction
in 1998 for robbery by force; (2) in 2002, he possessed drugs and a loaded firearm,
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which resulted in a 2003 conviction for drug possession and forgery; and (3) in 2004,
he used a firearm when he entered a house and held the occupants at gun point, which
resulted in convictions in 2005 for burglary and aggravated assault. To the extent that
Sanders attempts to argue that the court should not have relied on these statements
from the PSI, he failed to object to the PSI’s factual statements regarding his prior
convictions and, thus, cannot now challenge these undisputed statements. See
Beckles, 565 F.3d at 843-44.
Finally, as to Sanders’s argument that the prosecution misrepresented his 1998
conviction for “robbery by force” by characterizing it incorrectly as an “armed
robbery,” it is notable that Sanders admitted during the sentencing hearing that he
initially was charged with armed robbery but then pled guilty to robbery by force, and
also that the PSI said that the charge of armed robbery was dismissed. Given that he
was charged with armed robbery and that the offense involved the use of a gun to rob
someone, Sanders cannot show that the government’s statement was a
misrepresentation of his offense. Furthermore, there is no indication in the record
that the court was misled at sentencing into believing that Sanders actually was
convicted of armed robbery. Accordingly, because Sanders has failed to show that
his sentence is procedurally unreasonable, we affirm.2
AFFIRMED.
2
Sanders has not argued that his sentence was substantively unreasonable.
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