United States v. Kenyon Gresham

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11235 APRIL 7, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 5:06-cr-00089-CAR-CWH-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
KENYON GRESHAM,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 7, 2011)
Before CARNES, PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Kenyon Gresham appeals the district court’s imposition of a 36-month
sentence, which was the statutory maximum and above the applicable guidelines
range, following its revocation of supervised release. Gresham contends that his
36-month sentence was unreasonable because the district court either ignored or
misapplied the 18 U.S.C. § 3553(a) factors that must be considered under 18
U.S.C. § 3583(e).1
We review the reasonableness of a defendant’s sentence only for an abuse
of discretion. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010). The
party challenging the sentence bears the burden of establishing that the sentence
was unreasonable. Id. at 1191 n.16. When imposing a sentence for a revocation
of supervised release, the district court must consider (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence to deter criminal conduct, protect the public from
future criminal conduct, and provide the defendant with needed educational or
vocational training or medical care; (3) the applicable guideline range; (4) the
pertinent policy statements of the United States Sentencing Commission; (5) the
need to avoid unwarranted sentencing disparities; and (6) the need to provide
restitution to any victims of the defendant’s offense. See 18 U.S.C. § 3583(e).
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Gresham also contends that his 57-month sentence for his separate offense of conspiracy
to possess with intent to distribute was unreasonable. But that contention is outside the scope of
this appeal because we dismissed his appeal of that sentence due to a valid appeal waiver.
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We engage in a two-step process when reviewing a sentence for
reasonableness. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
First we ensure that the district court properly calculated the guidelines range,
treated the guidelines as advisory, considered the § 3553(a) factors, did not select
a sentence based on clearly erroneous facts, and adequately explained the chosen
sentence—including an explanation for any deviation from the guidelines range.
Id. When the district court “listen[s] to the evidence and arguments and [is] aware
of the various factors [a] defendant put forward for a lesser sentence” while stating
that it has considered the § 3553(a) factors, it does not procedurally err by failing
to give a detailed explanation of the sentence. See Irey, 612 F.3d at 1194–95. If
we are satisfied that the proper procedure has been followed, we evaluate the
substantive reasonableness of the sentence imposed and do so by considering “the
totality of the facts and circumstances.” Id. at 1189.
In this case the district court properly calculated Gresham’s guidelines range
of 12 to 18 months because Gresham committed a Grade A violation of supervised
release with a criminal history category of I. See U.S.S.G. §§ 7B1.1(a)(1)(A)(ii),
7B1.4. The court treated the guidelines range as advisory because it varied from
that range and instead imposed a sentence at the statutory maximum. The court
also adequately explained its consideration of the § 3553(a) factors and Gresham’s
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circumstances in sentencing him because it heard and considered Gresham’s
arguments in mitigation and his allocution; it stated that the sentence “complied
with the factors that are to be considered as set forth at [§] 3553(a)” and
adequately addressed the totality of the circumstances; and it stated that it had
varied from the guidelines range in part because of Gresham’s continued
involvement in the drug trade. Accordingly, Gresham has not shown that his
sentence was procedurally unreasonable. And while his sentence was above the
guidelines range and at the statutory maximum, the district court did not abuse its
discretion by selecting that sentence under the facts and circumstances because
Gresham, while on supervised release, continued to participate in the drug trade
despite his recent completion of a lengthy sentence for another felony drug
trafficking conviction.
AFFIRMED.
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