[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 2, 2006
No. 06-13241 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00043-CR-4-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES D. GORDON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 2, 2006)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
James D. Gordon appeals his sentence following his guilty plea to
conspiracy to distribute and possess with the intent to distribute more than 500
grams of a mixture containing “MDMA” or “ecstasy,” in violation of 21 U.S.C.
§§ 841(b)(1)(B)(ii) and (C) and 846, and possessing a firearm and ammunition as a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Gordon was
sentenced as a career offender based on his prior convictions for aggravated battery
with a deadly weapon and carrying a concealed firearm. On appeal, Gordon argues
that the district court erred in classifying him as a career offender because the
sentence for his aggravated battery conviction was imposed more than 15 years
before commencement of the instant offense. He further argues that three criminal
history points should be deducted from his criminal history score because the
aggravated battery conviction should not have been counted.
A district court’s decision to classify a defendant as a career offender under
U.S.S.G. § 4B1.1 is reviewed de novo. United States v. Gibson, 434 F.3d 1234,
1243 (11th Cir.), cert. denied, 126 S.Ct. 2911 (2006). Pursuant to § 4B1.1, a
defendant is a career offender when:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1(a).
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Prior felony convictions under § 4B1.1 are counted using the definitions and
instructions for computing criminal history in § 4A1.2. U.S.S.G. § 4B1.2,
comment n.3; see United States v. Shannon, 449 F.3d 1146, 1148 (11th Cir. 2006).
A prior conviction is “any sentence previously imposed upon adjudication of guilt .
. . for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1); see
Shannon, 449 F.3d at 1148. A prior conviction counts only if “imprisonment
exceeding one year and one month . . . was imposed within fifteen years of the
defendant’s commencement of the instant offense[.]” U.S.S.G. § 4A1.2(e)(1)
(emphasis added). In the context of a conspiracy, however, we count back from
the date last alleged as part of the conspiracy, unless the district court makes a
specific finding concerning when the co-conspirators reached an agreement.
United States v. Cornog, 945 F.2d 1504, 1509-10 (11th Cir. 1991). A prior
conviction also counts when “any prior sentence of imprisonment exceeding one
year and one month, whenever imposed, . . . resulted in the defendant being
incarcerated during any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1);
see Shannon, 449 F.3d at 1148.
“Sentences imposed upon revocation of probation can affect the time period
under which sentences are counted under section 4A1.2(e)(1).” Shannon, 449 F.3d
at 1148 (internal quotations omitted). “Thus, the court ordinarily should count a
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conviction that is imposed, and on which the defendant is paroled, outside the
window, when the defendant later-within the window- is incarcerated for breaching
the conditions of his parole.” Id. In Shannon, Shannon committed two prior
felony offenses outside the 15-year window, but violated his probation for each
offense, resulting in incarceration for each offense, within the 15-year period. Id.
We held that the district court correctly applied the guidelines in sentencing
Shannon as a career offender because both of Shannon’s prior convictions resulted
in him being incarcerated within the 15-year window for prior offenses. Id.
Here, because the instant offense involved a conspiracy, the 15-year window
for prior offenses opened on the last date of the alleged conspiracy, which was
May 20, 2005. Although Gordon was convicted of the aggravated battery offense
in June 1989, outside the 15-year window for predicate career offender
convictions, Gordon’s probation was revoked, and he was incarcerated until
January 29, 1993, which was within the 15-year window. Therefore, pursuant to
U.S.S.G. § 4A1.2(e)(1), because Gordon was incarcerated within the 15-year
window for violating his probation with respect to his 1989 aggravated battery
conviction, that conviction counts as a prior violent felony for purposes of the
career offender provision. Gordon’s argument concerning the applicable criminal
history points is moot because, as discussed above, the district court correctly
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applied the career offender enhancement and properly included the aggravated
battery conviction in his criminal history score. Accordingly, the district court did
not err in sentencing Gordon as a career offender.
Gordon also argues that the district court erred in imposing a guideline-range
sentence because the sentence does not reflect his true conduct. Gordon further
contends that the district court imposed the sentence under a mandatory guideline
scheme, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005).
We have held that “[i]n reviewing the ultimate sentence imposed by the
district court for reasonableness, we consider the final sentence, in its entirety, in
light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th
Cir. 2006) (brackets in original) (citation omitted). In determining a reasonable
sentence, the district court is to be guided by the § 3553(a) factors. Booker, 543
U.S. at 261, 125 S.Ct. at 765-66; United States v. Winingear, 422 F.3d 1241, 1246
(11th Cir. 2005). Section 3553(a) provides that district courts must consider, inter
alia, (1) the applicable guideline range; (2) the nature and circumstances of the
offense; (3) the history and characteristics of the defendant; (4) the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (5) the need for adequate
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deterrence; (6) protection of the public; and (7) the need to avoid unwarranted
sentencing disparities. 18 U.S.C. § 3553(a)(1)-(7).
Although the district court must be guided by these factors, we have held
that “nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005). “[A]n acknowledgment by the district court that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient under
Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although a
sentence within the advisory guidelines range is not per se reasonable, we
ordinarily expect such a sentence to be reasonable. Id. at 787-88. We recently
held that “a district court may determine, on a case-by-case basis, the weight to
give the Guidelines, so long as that determination is made with reference to the
remaining section 3553(a) factors that the court must also consider in calculating
the defendant’s sentence.” United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.
2006). The burden of establishing that the sentence is unreasonable in light of the
record and the § 3553(a) factors lies with the party challenging the sentence.
Talley, 431 F.3d at 788.
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As a preliminary matter, Gordon’s contention that the district court
sentenced him under a mandatory guideline scheme is without merit. Gordon was
sentenced after Booker, and the court explicitly stated that the guidelines were only
advisory.
Further, Gordon failed to carry his burden of showing that his sentences
were unreasonable. Here, the record reveals that the district court adequately and
properly considered the § 3553(a) sentencing factors as well the advisory guideline
range in sentencing Gordon. First, as in Scott, the district court explicitly stated
that it had considered the § 3553(a) factors. Second, the court demonstrated its
explicit consideration of many of the sentencing factors, including (1) Gordon’s
history and characteristics, (2) the nature and circumstances of the offense, (3) the
need for the sentence imposed to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment and adequate deterrence, and
(4) the policy statements issued by the Sentencing Commission. The court did not
need to state on the record its explicit consideration of every § 3553(a) factor, nor
did it need to address every argument for a variance. Third, Gordon’s assertion
that he has not maintained the life of a career criminal is without merit because his
criminal record is serious and spans many years. Finally, the court imposed
sentences at the low end of the guideline range, and, for the reasons discussed
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above, nothing in the record suggests that the low-end sentences were
unreasonable.
Upon review of the record on appeal and consideration of the parties’ briefs,
we discern no reversible error.
AFFIRMED.
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