[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10526 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00016-SCB-EAJ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
NATHAN WINE,
lllllllllllllllllllllDefendant-Appellant.
_______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 14, 2011)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Nathan Wine appeals his thirty-six-month sentence following his guilty plea
to threatening the President-elect, in violation of 18 U.S.C. § 871(a). Wine argues
on appeal that the district court violated the objection-elicitation requirement of
United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other
grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc).
He also argues that his sentence was substantively unreasonable.
I
Wine argues that the district court erred when it failed to give him the
opportunity to object after it sentenced him. Therefore, he asserts that we should
reverse and remand in order to give the parties an opportunity to raise and explain
their objections.
In Jones, we held that “after imposing a sentence, the district court must
give the parties an opportunity to object to the court’s ultimate findings of fact,
conclusions of law, and the manner in which the sentence is pronounced, and must
elicit a full articulation of the grounds upon which any objection is based.” United
States v. Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007). When the district court
fails to comply with Jones, we generally vacate the sentence and remand to
provide the parties an opportunity to present their objections, unless the record on
appeal is sufficient to enable review. Id. While objections not raised before the
district court are usually reviewed only for plain error, when we reach the merits
of an issue despite a Jones error, rather than vacating and remanding, we review
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that claim de novo. See United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir.
2006) (reviewing an Eighth Amendment challenge de novo where a Jones error
had occurred at sentencing).
Here, although the district court failed to elicit objections after sentencing
Wine, the record is sufficiently developed to allow us to review Wine’s arguments.
Wine requested the district court impose a lesser sentence and presented evidence
and argument in mitigation, raising his challenge to the substantive reasonableness
of the sentence. Therefore, rather than vacating Wine’s sentence and remanding,
we will review his arguments for preserved error.
II
Relying on United States v. Harris, 990 F.2d 594 (11th Cir. 1993), 18
U.S.C. § 3582(a), and 28 U.S.C. § 994(k), Wine argues that it was inappropriate
for the district court to consider his rehabilitative needs when choosing his
sentence.
In reviewing the reasonableness of a sentence imposed after conviction, we
review de novo “whether a factor considered by the district court in sentencing a
defendant is impermissible.” United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008) (citation omitted). “A sentence that is based entirely
upon an impermissible factor is unreasonable because such a sentence does not
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achieve the purposes of § 3553(a).” Id. (quotation omitted). “[T]he party
challenging the sentence bears the initial burden of establishing that the district
court considered an impermissible factor at sentencing.” United States v.
Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), abrogated on other grounds by
Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L. Ed. 2d 481
(2007).
Although 18 U.S.C. § 3553(a) provides that a district court shall consider
the need “to provide the defendant with needed . . . medical care, or other
correctional treatment in the most effective manner,” a district court “cannot
impose an initial incarcerative sentence for the purpose of providing a defendant
with rehabilitative treatment.” United States v. Brown, 224 F.3d 1237, 1240 (11th
Cir. 2000). District courts are required to consider the § 3553(a) factors only “to
the extent that they are applicable, recognizing that imprisonment is not an
appropriate means of promoting correction and rehabilitation.” 18 U.S.C.
§ 3582(a); see also 28 U.S.C. § 994(k) (“The Commission shall insure that the
guidelines reflect the inappropriateness of imposing a sentence to a term of
imprisonment for the purpose of rehabilitating the defendant or providing the
defendant with needed . . . medical care, or other correctional treatment.”).
Wine has not met his burden of establishing that the district court
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considered an impermissible factor at sentencing. See Williams, 456 F.3d at 1361.
The district court's consideration of Wine's need for mental health treatment was
not impermissible because the district court did not impose or extend the term of
his imprisonment for the purpose of rehabilitating him. See Harris, 990 F.2d at
595 (holding that it is impermissible for court to impose or extend a period of
incarceration for the purpose of rehabilitating the defendant). The district court
explained at length its reasons for imposing the thirty-six-month, guidelines-range,
sentence of incarceration. At his sentencing hearing, Wine had a number of
witnesses that testified about his mental illness. The district court appropriately
took this into account in ordering mental health and substance abuse treatment
during Wine’s period of incarceration and as conditions of his thirty-six-month
supervised release. See Harris, 990 F.2d at 596 (the prohibition on imposing or
extending incarceration time for the purpose of rehabilitating a defendant relates
only to the imprisonment part of a sentence, not to other terms of a sentence;
indeed, “the precise factors that are not to be considered in imposing
imprisonment are set forth by statute as factors to be considered in imposing
sentence.”). In determining that a thirty-six-month sentence of incarceration was
appropriate, the district court cited a concern for the community and public safety,
rather than an impermissible goal of increasing the duration of incarceration for
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the purposes of rehabilitating Wine.
III
Finally, Wine argues that his sentence was greater than necessary to
achieve the purposes of sentencing. Specifically, he notes that although he timely
pleaded guilty, he did not receive a three-level reduction for acceptance of
responsibility because he wrote threatening letters while he was waiting to be
sentenced. However, his expert witness testified that those letters were the result
of his failure to receive sufficient levels of medication. If he had received the
three-level reduction, his guideline range would have been twenty-one to twenty-
seven months. He argues that there is no clear indication in the record (1) that the
district court considered applying a three-level reduction or (2) whether a sentence
in the range of twenty-one to twenty-seven months would have been sufficient.
We review the final sentence imposed by the district court for
reasonableness. United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008).
The Supreme Court has clarified that the reasonableness standard means review
for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594,
169 L.Ed.2d 445 (2007). We ordinarily expect a sentence within the advisory
guideline range to be a reasonable one. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). The party challenging the sentence bears the burden of
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establishing that it is unreasonable. Williams, 526 F.3d at 1322.
Once we conclude that the district court made no procedural errors, we
consider “the substantive reasonableness of the sentence,” under the totality of the
circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The sentencing court shall
impose a sentence “sufficient, but not greater than necessary” to comply with the
purposes of sentencing. 18 U.S.C. § 3553(a)(2). “[A]fter giving both parties an
opportunity to argue for whatever sentence they deem appropriate, the district
judge should then consider all of the § 3553(a) factors to determine whether they
support the sentence requested by a party.” Gall, 552 U.S. at 49–50, 128 S.Ct. at
596 (footnote omitted).
Although we will look to see whether the district court considered the §
3553(a) factors, “[t]he weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” Williams, 526 F.3d at
1322 (quotation omitted). Moreover, there is no requirement that the district court
explicitly discuss its consideration of each of the § 3553(a) factors on the record,
as long as the sentencing judge “set[s] 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.” Rita v. United States, 551
U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). An
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acknowledgment by the district court that it has considered the defendant’s
arguments and the § 3553(a) factors may be sufficient to meet this requirement in
a straightforward case. See United States v. Scott, 426 F.3d 1324, 1329–30 (11th
Cir. 2005).
Despite Wine’s guilty plea, he was not entitled to a reduction for acceptance
of responsibility because he continued to engage in criminal conduct following the
plea. See United States v. Scroggins, 880 F.2d 1204, 1215–16 (11th Cir. 1989)
(holding that a district court may consider subsequent criminal conduct in deciding
whether a decrease pursuant to U.S.S.G. § 3E1.1 was appropriate); see also
U.S.S.G. § 3E1.1, cmt. n.1(b) (noting that the district court may consider the
defendant’s “voluntary termination or withdrawal from criminal conduct or
associations”). Wine had a full opportunity to object to the Presentence
Investigation Report (“PSI”), and he forfeited that objection before sentence was
imposed. Further, Wine has not identified anything in the record that undermines
our ordinary expectation of reasonableness for a within-guideline-range sentence.
See Talley, 431 F.3d at 788. Therefore, we affirm Wine’s thirty-six-month
sentence.
AFFIRMED.1
1
Appellant’s request for oral argument is denied.
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