[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-14932 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ December 21, 2006
THOMAS K. KAHN
D. C. Docket No. 04-00156-CR-T-30-EAJ CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS MCGOWAN,
a.k.a. Shank,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 21, 2006)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
Thomas McGowan was convicted on his guilty plea for possession with
intent to distribute five grams or more of cocaine base (crack cocaine), in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). The district court imposed a sentence of
188 months, and McGowan appealed. Finding statutory error under United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because the district court had
treated the Guidelines as mandatory, we vacated McGowan’s sentence and
remanded for resentencing. United States v. McGowan, 134 Fed. Appx. 359, 362-
63 (11th Cir. 2005). Following a resentencing hearing, the district court imposed
a custody sentence of 180 months. McGowan now appeals this sentence.
I. BACKGROUND
On March 4, 2004, Lakeland police officers, acting on information that
McGowan was a drug dealer, initiated a traffic stop and arrested McGowan for
driving without a license. When questioned at the police station, he ultimately
admitted possession of crack. At sentencing, he was held accountable for 41.3
grams of crack, which he acknowledged to be correct.
II. ISSUES ON APPEAL AND CONTENTION OF THE PARTIES
McGowan raises a number of issues on this appeal. Only two warrant
discussion. He contends: (1) that the district court failed to state its reasons for the
sentence imposed as required by 18 U.S.C. § 3553(c); and (2) that his sentence is
unreasonable.1
1
We rejected McGowan’s constitutional challenges in the prior appeal. And, we also held
that the district court had properly calculated the Guideline sentencing range. We need not revisit
those issues.
2
The Government argues that the issue of the district court’s statement of
reasons for its choice of the sentence imposed was not preserved for review and,
alternatively, that the statement of reasons complied with the statute. As to the
reasonableness of the sentence, the Government first insists that we lack
jurisdiction to review the sentence for reasonableness, and, alternatively, that the
sentence is reasonable.
III. DISCUSSION
A. Statement of Reasons for the Sentence
McGowan contends that 18 U.S.C. § 3553(c)(2) required the district court
to state its specific reasons for imposition of a sentence outside the Guideline
range, either during the sentencing hearing or in the written judgment, and that the
court failed to comply with the statute. The Government contends that McGowan
did not voice this objection in the district court, and therefore this issue was not
preserved for review. Because we necessarily consider the court’s statement of
reasons in our review of the sentence for reasonableness, however, we assume
arguendo that this issue is preserved for our review.
We find the district court’s statement of reasons sufficient. A court is not
obligated to explicitly mention the § 3553(a) factors, but instead can meet this
requirement through the totality of its actions. See United States v. Thomas, 446
3
F.3d 1348, 1357 (11th Cir. 2006) (finding that the district court considered §
3553(a) factors where the parties’ arguments and the PSI’s calculations outlined
them); See also United States v. Wivell, 893 F.2d 156, 158 (8th Cir. 1990) (record
of entire sentencing hearing considered in evaluating district court’s reasons for
imposing particular sentence; reviewing court will not rely exclusively upon
court’s summary statement at closing of sentencing hearing). At the original
sentencing hearing (which we consider in addressing this issue) the court listened
to the arguments of counsel, imposed a sentence of 188 months, and said it would
impose a sentence of 180 months if the Guidelines were not mandatory. The court
said that it had arrived at the 180-month sentence “after considering the factors of
the nature of the crime, the defendant’s criminal history, and the quantity of drugs
involved.” (R.3-33 at 31.) At the resentencing hearing, the court listened to the
arguments of counsel and, following the imposition of sentence, said “The
sentence is 15 years, which the Court determines to be reasonable in light of the
factors of 18 U.S.C., Section 3553.” (R.4-52 at 11.) These statements suffice.
United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).
Nothing in the record supports McGowan’s suggestion that the district court
ignored his arguments in imposing this sentence.
4
B. Reasonableness of the Sentence
The § 3553(a) factors guide courts in determining whether a sentence is
reasonable. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
The “party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in light of both [the] record and the factors in section
3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). District
courts do not need to establish the reasonableness of the imposed sentence by
explicitly considering every § 3553(a) factor. Scott, 426 F.3d at 1329.
Despite McGowan’s claims, the district court imposed a reasonable
sentence. First, the court properly calculated the Guideline range of his sentence
as 188 to 235 months’ imprisonment. The court adopted the facts and sentencing
calculations contained in the PSI, and then sentenced McGowan to 180
months–eight months below the Guideline range and between one-third and one-
half the statutory maximum of 40 years. 21 U.S.C. § 841(b)(1)(B)(iii). Second,
McGowan had two more prior convictions than the two required for the career
offender determination, plus an extensive history of drug dealing and other crimes.
The totality of his criminal history resulted in 24 criminal history points, which is
significantly above the 13 points necessary for Category VI–the highest category
available and the category to which McGowan was assigned. The 180-month
5
sentence is reasonable. United States v. Martinez, 434 F.3d 1318, 1321-22 (11th
Cir. 2006).2
AFFIRMED.
2
McGowan’s crack-to-cocaine and career offender arguments are attacks on the Guidelines
that we have previously rejected. United States v. Williams, 456 F.3d 1353, 1367 (11th Cir. 2006).
6