[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10564 SEPTEMBER 26, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00293-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONYELLE CHILDS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 26, 2006)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Donyelle Childs appeals his 262-month sentence for possession with intent
to distribute fifty grams or more of cocaine base and for being a felon in possession
of a firearm, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii), and 18
U.S.C. § 922(g)(1). We AFFIRM.
I. BACKGROUND
Based on intelligence regarding an ongoing narcotics distribution
investigation, the Sheriff’s Office of Pinellas County, Florida, executed a search
warrant at Childs’s apartment on 22 June 2005. The officers seized 122 grams of
crack cocaine and three grams of cocaine powder as well as two firearms, all of
which Childs admitted were his.1 Childs pled guilty.
Because Childs was at least eighteen years of age when he committed the
crimes, one of which was a controlled-substance offense, and he had at least two
prior felony convictions for controlled substance offenses, the probation officer
determined that Childs was a “career offender” as defined by U.S.S.G.
§ 4B1.1(Nov. 2005). Based on this determination, the probation officer placed
Childs’s total offense level at 37, the level for career offenders convicted of an
1
On a table next to Childs, officers found 32 grams of crack cocaine cut into small block
pieces, half of a crack cocaine “cookie” weighing 36 grams, razor blades, $1000 in cash, and a
box containing an additional “cookie” weighing 54 grams. In the kitchen, the officers found a
drug scale, marijuana, a sauce pot with cocaine residue, plastic bags, a .32 caliber handgun, four
rounds of ammunition, and an additional three grams of cocaine powder. In Childs’s bedroom,
the officers found a Ruger .223 rifle loaded with a full ammunition magazine holding 30 rounds
of .223 ammunition.
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offense for which the maximum penalty is life imprisonment.2 The officer
deducted three points as an adjustment for acceptance of responsibility and for
assisting authorities by providing timely notification of intent to plead guilty,
resulting in the final offense level determination of 34. Because Childs was
classified as a career offender, his criminal history category was placed at VI.
Based on an offense level of 34 and a criminal history category of VI, the
Sentencing Guidelines range for Childs’s crimes was 262-327 months of
imprisonment. U.S.S.G. Ch. 5, Pt. A.
At the sentencing hearing, the district judge considered Childs’s objections
to the Presentence Investigation Report (“PSI”). Childs's attorney argued that the
calculations made by the probation officer were based on an “over-representation”
of Childs’s criminal history. R3 at 7. The judge listened to defense counsel’s
arguments about past convictions involving the sale of “fake,” rather than actual,
drugs, and about Childs’s troubled past. Id. at 8-10. Overruling these objections,
the judge concluded that the probation officer’s evaluation in the PSI was
“unquestionably correctly scored” and, further, that “the considerations that trigger
that policy are clearly present.” Id. at 11.
The district judge also heard testimony from several members of Childs’s
2
There is a statutory minimum of ten years and a maximum of life for possession with
intent to distribute fifty grams or more of cocaine base. 21 U.S.C. § 841(b)(1)(A).
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family, as well as his girlfriend, regarding Childs’s difficult upbringing, his
struggle with criminal activities, his religious faith, and his good character. Childs
testified regarding his remorse, his acceptance of responsibility, and his difficult
childhood. The government declined to offer additional evidence in aggravation or
mitigation of the offense.
Childs's attorney asked for the statutory mandatory minimum sentence of ten
years. The judge acknowledged the “impressive group of people” who spoke on
Childs’s behalf and the “difficulty” presented by Childs’s case. Id. at 32. After
noting the “great threat” of Childs’s activities, the seriousness of Childs’s offenses,
Childs’s mature age, and Childs’s past of “systematically violating the law, and
spreading substances widely regarded as poison in the community,” id. at 33, the
judge sentenced Childs to 262 months as to Count 1, and 120 months as to Count
2, to run concurrently, id. at 35, and noted that this sentence satisfied the
requirements of 18 U.S.C. 3553(a), id. at 37.
Childs argues on appeal that his sentence is unreasonable because of
mitigating circumstances relating to his prior convictions. Specifically, Childs
contends that his classification as a career offender was inappropriate, since one of
his prior convictions had been for sale of a counterfeit substance, when he was
only eighteen years old. Moreover, Childs argues that the district judge gave
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inadequate consideration to his good character and difficult upbringing.
II. DISCUSSION
“In 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)
(citations and alteration omitted). The § 3553(a) factors include:
1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam); see 18
U.S.C. § 3553(a).
We have held that a district judge need not state on the record that he or she
explicitly has considered each factor or discuss the factors individually. Talley,
431 F.3d at 784. An acknowledgment by a district judge that he or she has
considered the defendant’s arguments and the § 3553(a) factors will suffice. Id. In
reviewing a sentence for reasonableness, “'we must be mindful of the factors to be
considered in imposing a sentence, as set forth in [18 U.S.C. § 3553(a)], and
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evaluate these in light of the reasons for the imposition of the particular sentence as
stated by the district court'”; we further consider the district judge’s statements
over the entire sentencing hearing. United States v. Williams, 435 F.3d 1350, 1355
(11th Cir. 2006) (per curiam) (citation omitted) (alteration in original). The burden
of proving that the sentence is unreasonable in view of the record and the § 3553(a)
factors is on the challenger. Talley, 431 F.3d at 788.
Although a sentence within the Sentencing Guidelines range will not be
considered per se reasonable, the Guidelines remain central to the sentencing
process. Id. at 787. “[O]rdinarily we would expect a sentence within the
Guidelines range to be reasonable.” Id. at 788. We previously have rejected a
defendant’s argument that a low-end sentence was unreasonable based on the
defendant’s assertion “that the district court had failed to place sufficient weight on
his personal characteristics and history.” United States v. Scott, 426 F.3d 1324,
1330 (11th Cir. 2005). In Talley, we rejected a reasonableness challenge where the
district judge had considered the defendant’s arguments in mitigation and then
sentenced the defendant at the low end of the Guidelines range. 431 F.3d at 788.
At the sentencing hearing, the district judge considered Childs’s objections
to the PSI but concluded that the probation officer’s evaluation was correct and
that “the considerations that trigger that policy are clearly present.” R3 at 11.
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Because the district judge considered Childs’s arguments in light of the factors
outlined in § 3553(a) and imposed a sentence at the low end of the Sentencing
Guidelines recommendation for Childs’s crimes, it did not impose an unreasonable
sentence. Before issuing the sentence, the district judge solicited evidence in
mitigation of the sentence and considered the testimony of several witnesses, who
testified as to Childs’s good character, difficult upbringing, struggle with criminal
activities, and religious faith. Additionally, the judge considered Childs’s
testimony regarding his remorse, his acceptance of responsibility, and his religious
faith. After this testimony, Childs’s attorney asked the judge to impose the ten-
year mandatory minimum sentence.
The judge rejected defense counsel's request that Childs be sentenced to the
statutory minimum of ten years and decided instead to impose a sentence of 262
months in prison, a sentence at the low end of the Guidelines range. The judge
noted that this sentence was being made “pursuant to the Sentencing Reform Act
of 1984, and to the extent it is applicable after United States vs. Booker[, 543 U.S.
220, 125 S.Ct. 738 (2005)] and pursuant to 18 U.S.C. 3553.” R3 at 35.
Explaining his reasoning for the sentence, the district judge found that Childs had a
history of violating the law, particularly, distributing controlled substances. The
judge further noted Childs’s mature age and observed that Childs was “getting on
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toward 30.” Id. at 33. The judge recognized that Childs’s activities had been a
“great threat . . . to the community” and that his was a “serious offense,” which
required a “serious penalty.” Id. at 34. The judge was satisfied that Childs’s
sentence complied with the requirements of § 3553(a). Id. at 37.
Based on this record, Childs has not met his burden of showing that his
sentence was unreasonable. The district judge considered all of defense counsel’s
arguments and specifically found that the sentence imposed was in compliance
with § 3553(a). The district judge’s findings related to the concerns of
§ 3553(a) with “the nature and circumstances of the offense and the history and
characteristics of the defendant,” “the seriousness of the offense,” the need “to
protect the public,” and the Guidelines “sentencing range.” 18 U.S.C. § 3553(a).
Accordingly, Childs's sentence was reasonable.
III. CONCLUSION
After pleading guilty to crimes involving possession and distribution of
cocaine base and possession of firearms by a convicted felon, Childs challenged
the reasonableness of his sentence on appeal. As we have explained, Childs's
sentence was reasonable.
AFFIRMED.
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