United States v. Michael Anthony Bailey

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2010
No. 09-12439 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________

D. C. Docket No. 08-00480-CR-2-IPJ-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL ANTHONY BAILEY,
a.k.a. Jimmy Macdougle,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(January 4, 2010)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
 Michael Anthony Bailey appeals his 46-month sentence, imposed within the

applicable guideline range, after pleading guilty to alien reentry into the United

States without consent, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal,

Bailey contends his sentence is substantively unreasonable. Specifically, he argues

his sentence is longer than necessary to accomplish the sentencing goals of

§ 3553(a). He asserts a reasonable sentence would have either given him credit for

27 months served in state custody during prosecution on a state charge, or

acknowledged the time served through a downward departure.

We examine the reasonableness of a sentence under an abuse of discretion

standard. United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008). The

standard is deferential, taking into account the totality of the circumstances. Gall

v. United States, 128 S. Ct. 586, 591, 597 (2007). The party challenging the

sentence carries the burden of establishing unreasonableness. United States v.

Flores, 572 F.3d 1254, 1270 (11th Cir.), cert. denied, 130 S. Ct. 568 (2009).

Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary,” to comply with the purposes of

sentencing listed in § 3553(a)(2). 18 U.S.C. § 3553(a)(2). The sentencing court

must also consider the § 3553(a) factors in fashioning a particular sentence. See 18

U.S.C. § 3553(a)(1), (3)-(7). A sentence is substantively unreasonable “if it does

2
not achieve the purposes of sentencing stated in § 3553(a).” United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). We have held “when

the district court imposes a sentence within the advisory Guidelines range, we

ordinarily will expect that choice to be a reasonable one.” United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). A 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.” United

States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation omitted).

The record demonstrates Bailey has not met his burden to demonstrate his

sentence was greater than necessary to achieve the goals listed in § 3553(a). Bailey

cites no authority to support the proposition that a reasonable sentence compels a

federal court, imposing a federal sentence, to credit a defendant with time served

while in state custody during the course of a state prosecution. He has thus failed

to satisfy his burden of establishing his guideline sentence was unreasonable.

Flores, 572 F.3d at 1270. Moreover, the district court considered Bailey’s

argument and provided a reasoned basis for exercising its authority. Livesay, 525

F.3d at 1090. Therefore, the district court did not abuse its discretion in declining

to impose a sentence below the guideline range.

AFFIRMED.

3