[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 2, 2005
No. 05-10432 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00038-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH DANIELS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 2, 2005)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Keith Daniels appeals his 135-month sentence for conspiracy to
distribute and possess with intent to distribute more than 5 kilograms of a mixture
containing cocaine and more than 50 grams of a mixture containing crack cocaine.
On appeal, he raises two main arguments based upon United States v. Booker, 543
U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Specifically, Daniels claims
that the district court imposed an unreasonable sentence (1) based upon
consideration of the factors enumerated at 18 U.S.C. § 3553(a), and (2) by failing
to consider the assistance he provided to law enforcement.1 Each argument is
discussed in turn.
I.
Under Booker, we review a defendant’s ultimate sentence for
“unreasonableness.” See Booker, 543 U.S. at ___, 125 S. Ct. at 765-66.
Sentencing courts are to consider the following factors, set forth at 18 U.S.C. §
3553(a), in determining sentences under the advisory Guidelines scheme:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) 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
1
Daniels also argues that his sentence was unreasonable based upon the Sentencing
Guidelines’ disparate treatment of powder and crack cocaine offenses. This argument is
foreclosed by our precedent, and therefore, is without merit. See United States v. Hanna, 153
F.3d 1286, 1288-89 (11th Cir. 1998).
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adequate deterrence to criminal conduct; (C) to protect
the public from further crimes of the defendant; and
(D) to provide the defendant with needed [treatment]; ...
(4) the kinds of sentence and the sentencing range
established for ... (B) in the case of a violation of
probation or supervised release, the applicable guidelines
or policy statements issued by the Sentencing
Commission ...; (5) any pertinent policy statement – (A)
issued by the Sentencing Commission.
18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 765-66.
We have clarified that sentencing courts must first correctly interpret and
apply the Guidelines to determine the appropriate advisory Guideline range. See
United States v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005).
Because Daniels does not argue on appeal, and the record does not show,
that the district court erred in calculating his offense level under the Guidelines,
there is no error in this respect. See Id.
The district court in this case purported to understand the requirement, in
light of Booker, that it apply the Guidelines in an advisory fashion. Although it
sentenced him within the Guideline range, it acknowledged that it was not required
to do so, but believed that Daniels’s unique circumstances warranted a sentence at
the low end of the Guideline range. In reaching that conclusion, the court
considered the nature and circumstances of Daniels’s cooperation with the
government, the nature of the offense, the drug involved, and “all of the
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circumstances” particular to him. It specifically noted that Daniels had been
involved in the “drug business” prior to the offense for which he was being
sentenced, and that he did not cooperate with the government prior to signing the
plea and cooperation agreement, but did cooperate afterward. The district court
expressly considered the factors set forth at § 3553(a),2 such that Daniels’s
sentence is not “unreasonable.” See Booker, 125 S. Ct. at 765-66; 18 U.S.C. §
3553(a). We, therefore, find no error in this respect.
II.
A district court may not depart pursuant to U.S.S.G. § 5K1.1 based upon a
defendant’s substantial assistance to the government absent a motion by the
government requesting departure on that basis. See Wade v. United States, 504
U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992); United States v.
Forney, 9 F.3d 1492, 1499 (11th Cir. 1993). Federal courts have authority to
review a prosecutor’s refusal to file a substantial assistance motion only if the
refusal was based upon an unconstitutional motive, such as racial or religious
discrimination. Wade, 504 U.S. at 185-86, 112 S. Ct. at 1843-44. The defendant
must make a “substantial showing” of an unconstitutional motive before having a
2
To the extent that the Sentencing Guidelines themselves take into account the factors set
forth at § 3553(a), the district court also implicitly considered them during the course of
calculating his applicable Guideline range.
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right to discovery or an evidentiary hearing. Wade, 504 U.S. at 186.
In this case, the district court did not err by failing to depart on the basis of
Daniels’s assistance to the government because the government did not file a
motion to that end. See Id. at 185. Daniels does not allege - much less make a
“substantial showing” - that the refusal to file the motion was based upon a specific
unconstitutional motive. See id. at 185-86. Rather, he contends only that the
government’s failure to file that motion violated the plea and cooperation
agreement. In fact, the plea agreement specifically stated that the government
retained “sole discretion” to determine whether to file a substantial assistance
motion. Accordingly, this argument fails.
Similarly, Daniels’s argument that the district court’s sentence was
unreasonable because it failed to consider the assistance he provided to the
government is also without merit. Specifically, the district court indicated that,
pursuant to Booker, it considered his cooperation in determining his sentence
although no substantial assistance motion was filed.
Based upon the foregoing, we affirm Daniels’s sentence.
AFFIRMED.
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