United States v. Kenneth Jadon Brown

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13290
Non-Argument Calendar
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D.C. Docket No. 7:16-cr-00040-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH JADON BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 21, 2018)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Kenneth Brown appeals his 36-month sentence, imposed above his advisory
guideline range, following his conviction for distribution of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). He contends that the district court
erred by imposing an upward departure without providing him with the required
notice of its intent to depart, and that his sentence was procedurally and
substantively unreasonable.
We will address each point in turn.
I. Departure or Variance
We review questions of law as to the Guidelines de novo. United States v.
Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009). However, where a defendant
raises a sentencing argument for the first time on appeal, we review only for plain
error. United States v. Prouty, 303 F.3d 1249, 1251-52 (11th Cir. 2002). To
establish plain error, a defendant must show (1) an error, (2) that is plain, and
(3) that affects the defendant’s substantial rights. Id. If these three conditions are
satisfied, the court has discretion to recognize the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. “An error is plain
if it is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d
938, 948 (11th Cir. 2006)
Rule 32(h) of the Federal Rules of Criminal Procedure, which applies to
“Sentencing and Judgment,” provides that “[b]efore the court may depart from the
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applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating such a departure.” Fed. R. Crim.
P. 32(h). The Supreme Court has held that the notice requirement of Rule 32(h)
applies only to departures, and does not apply to variances. Irizarry v. United
States, 553 U.S. 708, 714-16 (2008).
The Supreme Court has described “departure” as “a term of art under the
Guidelines” and stated that it “refers only to non-Guidelines sentences imposed
under the framework set out in the Guidelines.” Id. at 714. To determine whether
the district court applied a departure under the Guidelines or a variance under the
§ 3553(a) factors, we consider “whether the district court cited to a specific
guideline departure provision and if the court’s rationale was based on its
determination that the Guidelines were inadequate.” Kapordelis, 569 F.3d at 1316.
In Kapordelis, we held that the district court imposed a variance because (1) it did
not cite to a specific guideline departure provision and (2) its rationale was based
on the § 3553(a) factors and a finding that the Guidelines were inadequate. Id.
Here, the district court imposed a variance, not a departure, because it did
not cite to any specific departure provision and concluded that the Guideline range
was inadequate, explaining that the “Court determines that a sentence within the
advisory sentencing range is inappropriate in this case, and, therefore, the Court
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will impose a sentence outside the advisory guideline range.” The court discussed
Brown’s criminal history in the context of the need to promote respect for the law,
to deter future criminal conduct, and other § 3553(a) factors. Thus, the court was
not required to provide notice before imposing a sentence that exceeded Brown’s
guideline range.
II. Procedural and Substantive Reasonableness
An appellate court reviews the reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The court first ensures
that the district court made no significant procedural error, then examines whether
the sentence was substantively reasonable in light of the totality of the
circumstances. Id. at 51. However, we review objections to procedural
unreasonableness of a sentence for plain error when the objection was not raised at
sentencing. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014).
A sentence is procedurally unreasonable if the district court erred in
calculating the guideline range, treated the Sentencing Guidelines as mandatory,
failed to consider the § 3553(a) factors, selected a sentence based on clearly
erroneous facts, or failed to adequately explain the sentence, including any
deviation from the guideline range. United States v. Rodriguez, 628 F.3d 1258,
1264 (11th Cir. 2010). The district court sufficiently addresses the § 3553(a)
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factors when it acknowledges that it has considered the factors and the defendant’s
arguments. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
When imposing a sentence, the court need not “articulate [its] findings and
reasoning with great detail.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.
2010) (en banc). A challenge to the sufficiency of the district court’s explanations
is a “classic procedural issue, not a substantive one.” Id. at 1194.
In analyzing the substantive reasonableness of a sentence, we review “the
totality of the circumstances, including an inquiry into whether the statutory factors
in § 3553(a) support the sentence in question.” Gonzalez, 550 F.3d at 1324. The
district court must impose a sentence that is “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2). 18 U.S.C.
§ 3553(a). The § 3553(a) factors include: (i) the nature and circumstances of the
offense and history and characteristics of the defendant; (ii) the need for the
sentence to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, deter criminal conduct, protect the public, and provide the
defendant with training, medical care, or correctional treatment; and (iii) the
Sentencing Guidelines range for the offense. Id. § 3553(a)(1)-(2), (4). The district
court must evaluate all of the § 3553(a) factors, but it may attach great weight to
one factor over the others. United States v. Dougherty, 754 F.3d 1353, 1361 (11th
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Cir. 2014). A sentence imposed well below the statutory maximum penalty is an
indicator of a reasonable sentence. See Gonzalez, 550 F.3d at 1324.
“Impermissible double counting occurs when one part of the Guidelines is
applied to increase a defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines.”
United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006) (quotation
omitted). Distinct from the guidelines, the § 3553(a) factors are mandatory
statutory considerations the court is to contemplate in ensuring that “a sentence [is]
sufficient, but not greater than necessary, to comply with the purposes” of
sentencing. See 18 U.S.C. § 3553(a). While some of the factors are reflected in
the guidelines, they are still distinct from the guidelines, and may be used to tailor
the sentence. See 18 U.S.C. § 3553(a) (2); United States v. Booker, 543 U.S. 220,
245 (2005).
Brown’s sentence was procedurally reasonable. As noted, supra, the court
was not required to provide notice of its intent to sentence him above his guideline
range, because it did not impose a departure. Moreover, the court acknowledged
the § 3553(a) factors, stated that it had made an individualized assessment based
on the facts of Brown’s case, and discussed a number of the factors with regard to
Brown’s prior drug convictions.
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Brown’s sentence was also substantively reasonable. The court considered
the § 3553(a) factors and was entitled to attach great weight to the factors that it
deemed appropriate. The court did not impermissibly double count by considering
his history as it applied to the § 3553(a) factors. Finally, his 36-month sentence
was significantly lower than the statutory maximum term of 20 years’
imprisonment, providing further evidence that the sentence was reasonable.
Accordingly, we affirm Brown’s 36-month sentence.
AFFIRMED.
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