United States v. Uriah Alfred Rose

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2008
THOMAS K. KAHN
No. 07-12786
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-10032-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URIAH ALFRED ROSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 20, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Uriah Alfred Rose appeals his 188-month sentence for possession
with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1). Rose argues on appeal that his sentence is unreasonable because the
minimum sentence of 188 months, according to the Guidelines range, imposed by
the district court is greater than necessary to comply with the purposes of 18
U.S.C. § 3553(a). Specifically, Rose argues that the district court, in denying Rose
a downward variance, imposed a sentence that was too great in light of Rose’s
post-conviction and pre-sentence rehabilitation. Rose argues that the minimum
Guideline sentence of 188 months “is tantamount to punishing [Rose] for his status
as a drug addict,” rather than for his crimes.
This court reviews the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir.
2005). Specifically, the district court must impose a sentence that is both
procedurally and substantively reasonable. Gall v. United States, 552 U.S. ___,
128 S. Ct. 586, 597 (2007); United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th
Cir. 2006). The Supreme Court has explained that a sentence may be procedurally
unreasonable if the district court improperly calculates the guideline imprisonment
range, treats the Guidelines as mandatory, fails to consider the appropriate
statutory factors, bases the sentence on clearly erroneous facts, or fails to
adequately explain its reasoning. Gall 552 U.S. at ___, 128 S. Ct. at 597. The
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Supreme Court has explained that the substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Id. It has suggested that review
for substantive reasonableness under this standard involves inquiring whether the
statutory factors in § 3553(a) support the sentence in question. Id.
This court's reasonableness review is deferential and requires this court to
“evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in 3553(a).” United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). The party challenging the sentence “bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Id. In arriving at a reasonable sentence, the district
court is required to consider the factors set out in § 3553(a):
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need 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 deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
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avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. 3553(a)).
In considering the § 3553(a) factors and explaining the reasoning behind its
choice of sentence, we have held that the district court need not discuss or state that
it has explicitly considered each factor of § 3553(a). Talley, 431 F.3d at 786.
Instead, we have held that an explicit acknowledgment that the district court has
considered the defendant's arguments and the § 3553(a) factors will suffice.
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005); see also Rita v.
United States, 551 U.S. __, 127 S. Ct. 2456, 2469 (2007) (holding that the
defendant's sentence was reasonable when the district court considered the parties'
arguments and provided a reasoned basis for its choice of sentence).
Here, based on our review of the record, we conclude that Rose’s sentence
was not procedurally unreasonable because the district court heard statements of
the parties, considered Rose’s history contained in the pre-sentence investigative
report, and considered the factors set out in § 3553(a). See Scott, F.3d at 1329;
Hunt 459 F.3d at 1182 n.3; Gall 552 U.S. at ___, 128 S. Ct. at 597. Moreover, we
conclude from the record that Rose's sentence was not substantively unreasonable
because the district court did not abuse its discretion in sentencing him at the low
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end of the applicable guideline range given his criminal history and recidivism.
See 18 U.S.C. §3553(a); Gall 552 U.S. at ___, 128 S. Ct. at 597. Accordingly, we
affirm Rose’s sentence.
AFFIRMED.
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