[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11413 January 23, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01051-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME WILLIAM GUTIERREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 23, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jaime William Gutierrez appeals his concurrent 86-month sentences for
conspiracy to possess and possession with intent to distribute 3,4-
methylenedioxymethamphetamine (MDMA), in violation of 21 U.S.C.
§§ 841(a)(1), 846. Gutierrez asserts his sentence is unreasonable because at his
first sentencing hearing, during which he was sentenced on these convictions and
on a failure to appear conviction, the district court imposed a 48-month sentence1
for the drug convictions.
The Government contends we should not review Gutierrez’s sentence
because he invited the error by recommending a sentence at the low end of the
applicable 78 to 97 month Guideline range at the second sentencing hearing. “The
doctrine of invited error is implicated when a party induces or invites the district
court into making an error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir.
1998). Where a party invites error, we will not reverse the district court based on
plain error. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.), cert.
denied, 126 S. Ct.772 (2005).
The Government recommended a 78-month sentence, and Gutierrez
concurred with this recommendation. However, the district court expressed its
dissatisfaction with a 78-month sentence, and ultimately rejected Gutierrez’s
1
Although the district court initially mentioned a 47-month sentence, it
ultimately imposed a 48-month sentence.
2
assertion that a 78-month sentence was appropriate. Therefore, Gutierrez did not
induce the district court’s decision to impose an 86-month sentence, and we will
review the reasonableness of his sentence.
Our reasonableness inquiry is deferential, recognizing “there is a range of
reasonable sentences from which the district court may choose.” United States v.
Talley, No. 05-11353, 2005 WL 3235409, at *4 (11th Cir. Dec. 2, 2005). Our
inquiry is guided by the factors outlined in 18 U.S.C. § 3553(a). United States v.
Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). “These factors include the
available sentences, the applicable Guideline range, the nature and circumstances
of the offense, and the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, and
provide the defendant with needed medical care.” Id.
Once the district court has accurately calculated the Guidelines range,2 it
must consider the factors outlined in 18 U.S.C. § 3553(a) to determine a reasonable
sentence. See Talley, 2005 WL 3235409, at *2. A district court need not explain
its logic for every § 3553(a) factor before announcing its sentence. United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
2
Gutierrez does not challenge the accuracy of the Guideline calculations on
appeal, and has thus abandoned any argument thereunder. United States v.
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998).
3
At the first sentencing hearing, the district court concluded a total sentence
of 97 months was reasonable, and selected a 48-month sentence on the drug
charges in the exercise of its “unfettered discretion.” The district court was not
bound by this sentence because it had the authority to conduct an entire
resentencing, and revisit its previous determinations. See Unites States v. Yost, 185
F.3d 1178, 1181 (11th Cir. 1999). Although the district court did not specifically
explain why it was increasing Gutierrez’s original sentence on the drug convictions
from 48 months, it sufficiently explained the basis for the 86-month sentence,
noting that a sentence at the low end of the Guideline range was inappropriate in
light of the advisory Guidelines, § 3553(a) factors, and Gutierrez’s failure to
appear. See Scott, 426 F.3d at 1329.
In addition, there is no evidence the district court imposed a 48-month
sentence because it considered a longer sentence to be unreasonable. Although
Gutierrez’s sentence on the drug convictions was similar to that of his codefendant,
when allocating the 97 months, the district court expressed its concern that the
sentence send a message about failing to appear. Because district courts have a
range of reasonable sentences to chose from, Talley, 2005 WL 3235409, at *4,
allotting 48 months for Gutierrez’s drug convictions did not make 48 months the
only reasonable sentence. Therefore, the district court’s subsequent 86-month
4
sentence on the drug convictions was not unreasonable just because it apportioned
48 months of a 97-month sentence on that sentence during the first sentencing
hearing. We conclude the district court’s resentencing of Gutierrez to a higher
sentence on his drug convictions did not render his 86-month concurrent sentences
unreasonable.
AFFIRMED.
5