United States v. Braheen Timothy Earl Whitfield

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 28, 2006
No. 06-12530 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00334-CR-WTM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRAHEEN TIMOTHY EARL WHITFIELD,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(November 28, 2006)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Braheen Timothy Earl Whitfield appeals his sentence of 262 months of

imprisonment imposed after Whitfield pleaded guilty to being a felon in possession
of a firearm. 18 U.S.C. § 922(g). Whitfield argues that the district court violated

the Sixth Amendment when it made factual findings in connection with Whitfield’s

sentence and imposed an unreasonable sentence. We affirm.

I. BACKGROUND

In October 2005, Whitfield, Kareem Abdul Salaam, and a minor female,

were apprehended after a high-speed chase during which they traveled in a stolen

2005 Toyota Camry. Officers found in the Camry the tag from another stolen

vehicle and two firearms. Whitfield and Salaam, both convicted felons, were

indicted by a federal grand jury for possession of a stolen motor vehicle, 18 U.S.C.

§ 2313, and being a felon in possession of a firearm, 18 U.S.C. § 922(g). Whitfield

pleaded guilty to the firearm charge, and the government dismissed the stolen

motor vehicle charge.

The probation officer set Whitfield’s base offense level at 24 because

Whitfield was in possession of a firearm after having at least two violent or drug

related felony convictions. U.S.S.G. § 2k2.1(a)(2). The probation officer added

four levels under section 2k2.1(b)(5) because Whitfield possessed the firearm in

connection with a carjacking. The probation officer then added a two-level

increase because Whitfield attempted to escape while in custody and a two-level

enhancement because of the high-speed chase before Salaam and Whitfield were

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apprehended for a total offense level of 32. Because Whitfield was an armed

career criminal and that offense level exceeded the calculated offense level, the

probation officer set Whitfield’s offense level at 34. With a criminal history

category of VI, the resulting guideline range was 262 to 327 months of

imprisonment. The probation officer denied Whitfield a reduction for acceptance

of responsibility because Whitfield denied involvement in the carjacking and

because of Whitfield’s escape attempt.

Whitfield filed objections to the report of the probation officer. Specifically,

Whitfield objected to the denial of a reduction for acceptance of responsibility, the

four-level enhancement for possession of a firearm in connection with the

carjacking, and the two-level enhancement for obstruction of justice.

After considering Whitfield’s objections, the district court adopted the

guideline calculations of the probation officer except for the enhancement for the

high-speed chase because Whitfield was not driving the vehicle. The district court

expressly adopted the findings of the probation officer with respect to Whitfield’s

objections. The district court sentenced Whitfield to 262 months of imprisonment.

II. STANDARD OF REVIEW

We review the application of the sentencing guidelines by the district court

de novo and review findings of fact for clear error. United States v. Crawford, 407

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F.3d 1174, 1177-78 (11th Cir. 2005). We review sentences for reasonableness.

United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). Review for

reasonableness is deferential, United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005), and “when the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Id.

III. DISCUSSION

Whitfield makes two main arguments on appeal. First, Whitfield argues that

the district court violated his rights under the Sixth Amendment when it enhanced

his sentence using judicially found facts. Second, Whitfield argues that his

sentence is unreasonable. Both arguments fail.

Whitfield’s first argument is based on a misapprehension of law. After

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district court does

not err when it makes findings of fact at sentencing. United States v. Chau, 426

F.3d 1318, 1324 (11th Cir. 2005). Whitfield’s Sixth Amendment rights were not

violated when the district court made enhancements to his sentence or denied him a

reduction based on factual findings made at sentencing.

Whitfield’s second argument is belied by the record. Whitfield argues that

the district court failed to rule on his objections to the presentence investigation

report, the sentence does not accurately reflect the gravity of his crime, and the

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district court failed to take into account the mitigating evidence of Whitfield’s

bipolar disorder and drug use. The transcript of the sentencing proceeding reflects

that the district court ruled on Whitfield’s objections when it expressly adopted the

response of the probation officer to those objections; the district court stated that it

had considered the mitigating evidence, which was presented at sentencing; and the

district court stated several reasons why the sentence, which was at the low-end of

the guideline range, was appropriate. In the light of this record, Whitfield has

failed to establish that his sentence is unreasonable.

IV. CONCLUSION

Whitfield’s sentence is

AFFIRMED.

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