United States v. Gilliam

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 17, 2011
No. 10-12828 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:10-cr-14004-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
ROLLIE GILLIAM, JR.,
a.k.a. Rollie Gilliam,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 17, 2011)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
The district court sentenced Rollie Gilliam, Jr., a career offender, to a prison
term of 327 months after he pled guilty (pursuant to a plea agreement) to
conspiracy to possess with intent to distribute 5 or more grams of cocaine base,
i.e., “crack cocaine”, in violation of 21 U.S.C. § 846. Gilliam’s sentence was at
the top of the applicable Guidelines sentence range, 262 -327 months’
imprisonment. Gilliam appeals his sentence, contending (1) that the district court
did not adequately explain its reasons for denying his motion for a downward
variance from the sentence range, and (2) that his sentence was unreasonable and
excessive because the court allegedly believed that it could not consider the
crack/powder cocaine disparities in sentencing him.
In the sentencing regime existing after United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing decisions are reviewed on
appeal for reasonableness. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586,
594, 169 L.Ed.2d 445 (2007). A review for reasonableness requires an appellate
court to apply a deferential abuse-of-discretion standard to the defendant’s
sentence, whether the sentence is inside or outside the Guidelines sentence range.
Id. at 41, 128 S.Ct. at 591. The familiar abuse-of discretion standard “allows a
range of choice for the district court, so long as that choice does not constitute a
clear error of judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc) (quotation omitted), petition for cert. filed, (U.S. Nov. 24, 2010)
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(No. 10-727). Specifically, such a review requires that we invoke the following
two-step process to evaluate procedural and substantive reasonableness:
It must first 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. Assuming that the district
court’s sentencing decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of the sentence
imposed . . . .
Gall, 552 U.S. at 51, 128 S.Ct. at 597.
Procedural soundness assumes that the sentencing judge must “properly
calculate the Guidelines range . . . .” United States v. Pugh, 515 F.3d 1179, 1190
(11th Cir. 2008). After Booker, “the district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take them into account when
sentencing.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(quotation and alteration omitted). “This consultation requirement, at a minimum,
obliges the district court to calculate correctly the sentencing range prescribed by
the Guidelines[.]” Id. The sentencing judge’s explanation for the chosen sentence
may be brief and is to be evaluated in conjunction with the record and context of
the case. Rita v. United States, 551 U.S. 338, 358-59; 127 S.Ct. 2456, 2469, 168
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L.Ed.2d 203 (2007). “The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.” Id. at 356, 127 S.Ct.
at 2468.
In arriving at a reasonable sentence, the district court shall impose a
sentence that is “sufficient, but not greater than necessary,” to comply with the
need for the sentence imposed:
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.
18 U.S.C. § 3553(a). Other factors that the sentencing court should consider are
the following: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the
Sentencing Guidelines range; (4) pertinent policy statements of the Sentencing
Commission; (5) the need to avoid unwanted sentencing disparities among
similarly situated defendants; and (6) the need to provide restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.
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§ 3553(a)).
On appeal, the “highly deferential” review for substantive reasonableness
does not involve the consideration of each individual decision the court makes
during sentencing. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007).
Instead, it requires a review of only the final sentence for reasonableness in light
of the § 3553(a) factors. Id. “[T]here is a range of reasonable sentences from
which the district court may choose,” and ordinarily, we expect a sentence within
the guidelines range to be reasonable. Talley, 431 F.3d at 788. “The district court
must evaluate all of the § 3553(a) factors when arriving at a sentence, but is
permitted to attach great weight to one factor over others.” United States v. Shaw,
560 F.3d 1230, 1237 (11th Cir.) (quotation and citation omitted), cert. denied, 129
S.Ct. 2847 (2009). We do “not reweigh relevant factors nor do we remand for
re-sentencing unless the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence outside the range of
reasonable sentences.” United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.
2009). Rather, we determine if the sentence “fail[ed] to achieve the purposes of
sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788.
After review of the record and consideration of the parties’ briefs, we
conclude that the district court adequately explained its reasoning to rely on
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Gilliam’s status as a career offender and his past criminal history for its refusal to
effect a downward variance. Further, a review of the record reveals that the
district court did not believe that it could not consider the crack/powder cocaine
disparities, but instead confirmed its belief that the policies regarding the need to
prevent recidivism warranted the sentence imposed. In light of Gilliam’s
recidivist history, a sentence at the top of the Guidelines sentence range was not
unreasonable.
AFFIRMED.
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