[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14594 FEBRUARY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00379-CR-1-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JACKSON,
a.k.a. Nap,
a.k.a. Jake,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 17, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Robert Jackson appeals his concurrent sentences of twenty-one months
imprisonment for the following charges: (1) conspiracy to make and possess false,
forged, and counterfeit obligations and securities of the United States, 18 U.S.C. §§
371, 472; (2) making false, forged, and counterfeit Federal Reserve Notes,
18 U.S.C. § 471; (3) two counts of possession of falsely made, forged, and
counterfeit Federal Reserve Notes with intent to defraud, 18 U.S.C. § 472; and (4)
transferring and delivering falsely made, forged, and counterfeit Federal Reserve
Notes, 18 U.S.C. §§ 472, 473. We affirm.
Jackson’s first contends that the district court erred because it failed to
consider the factors in 18 U.S.C. § 3553 in determining his sentence. We “review
for unreasonableness” a sentence imposed post-Booker. United States v. Booker,
543 U.S. 220, ___, 125 S. Ct. 738, 745 (2005) (internal quotation marks and
alteration omitted); see also United States v. Crawford, 407 F.3d 1174, 1178 (11th
Cir. 2005) (noting that “Booker established a ‘reasonableness’ standard for the
sentence finally imposed on a defendant”). Nonetheless, we have held that the
district court is obligated “to calculate correctly the sentencing range prescribed by
the Guidelines.” Crawford, 407 F.3d at 1178. The requirement to calculate
correctly the guideline range applies to upward departures. See United States v.
Ellis, 419 F.3d 1189, 1193 (11th Cir. 2005).
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In determining whether a sentence is reasonable, the district court should be
guided by the factors in § 3553(a). See Booker, 125 S. Ct. at 765–66; 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.” Winingear, 422
F.3d at 1246. Although the 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).
We may not correct an error that the defendant failed to raise in the district
court unless there is “(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) cert.
denied, 125 S. Ct. 2935 (2005) (internal quotation marks and citation omitted). “If
all three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
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marks and citation omitted). Where a defendant knowingly waives an objection at
sentencing, we will not review the issue even for plain error. See United States v.
Masters, 118 F.3d 1524, 1526 (11th Cir. 1997) (holding that although the court did
commit error, the plain error doctrine was inapplicable because the defendant was
fully aware of the error the court was going to make during sentencing and
nonetheless agreed to be bound by it); see also United States v. Olano, 507 U.S.
725, 733–34, 113 S. Ct. 1770 (1993) (explaining that in criminal cases, plain error
review under Rule 52(b) extends to forfeited errors, in which the defendant fails to
make a timely objection, but not to waived errors, in which the defendant
intentionally relinquishes or abandons a known right).
Jackson was sentenced after Booker and was well aware that the district
court was not bound to sentence him within the guideline range. Nonetheless, he
did not argue to the district court that a sentence below the guideline range was
appropriate. Instead, he requested a sentence at the low end of the range. The
court honored this request, imposing the lowest possible sentence within the
guideline range. For these reasons, Jackson has waived even plain error review of
the reasonableness of his sentence, and we will not review whether the district
court erred in failing to consider the factors in 18 U.S.C. § 3553. Even if Jackson’s
argument was open to plain error review, it would fail. He cannot show that the
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district court failed to consider the factors in 18 U.S.C. § 3553. The district court
considered the applicable guideline range and imposed the sentence Jackson
requested. The court was not required to state on the record that it explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.
See Scott, 426 F.3d at 1329. Finally, Jackson cannot establish that if the district
court failed to consider the § 3553(a) factors, there is a reasonable probability of a
lesser sentence had it considered them.
Jackson next contends that the district court erred in applying an
enhancement to his advisory guideline range based upon a finding that he
manufactured counterfeit obligations. He argues that his guilty plea to conspiring
to make, forge, and counterfeit Federal Reserve Notes was insufficient to support
the enhancement because the court did not find that there was sufficient evidence
to show that Jackson himself actually participated in the creation of the counterfeit
obligations. Additionally, he argues that the testimony presented at the sentencing
hearing and the unproven assertions in the PSI were not sufficient to show that he
actually created the counterfeit notes.
A challenge to the application of the guidelines is a mixed question of law
and fact. United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir. 2003). We
review the district court’s findings of fact for clear error. Id. “The Government
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bears the burden of establishing by a preponderance of the evidence the facts
necessary to support a sentencing enhancement.” United States v. Askew, 193
F.3d 1181, 1183 (11th Cir. 1999). Pursuant to U.S.S.G. § 2B5.1(b)(2), a
defendant’s offense level is increased by two points if the defendant “manufactured
or produced any counterfeit obligation or security of the United States.” U.S.S.G.
§ 2B5.1(b)(2).
The district court’s finding that Jackson manufactured counterfeit
obligations was supported ample evidence: (1) he admitted that he was guilty of
manufacturing counterfeit Federal Reserve Notes; (2) the evidence showed that he
recruited a co-conspirator to help him cut up and process the counterfeit currency
and told another co-conspirator that he had printed counterfeit notes and was in the
process of cutting up the notes. Accordingly, the district court did not commit
clear error in applying the U.S.S.G. § 2B5.1(b)(2) enhancement.
Finally, Jackson contends that the district court erred in applying an
enhancement to his advisory guidelines range based upon his use of a dangerous
weapon in connection with the counterfeit currency offense. He argues that the
court did not adequately address the fact that he legally owned and possessed the
handgun at the time of his arrest. Jackson argues that he provided the court with
undisputed evidence that he possessed the gun for a legal alternative—personal
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protection—and, thus, because there was equal evidence on both sides of the
argument, it was unreasonable for the court to find the government met its burden.
Pursuant to U.S.S.G. § 2B5.1(b)(4), a defendant’s offense level is increased
by two points if the defendant possessed a firearm in connection with the offense.
U.S.S.G. § 2B5.1(b)(4). We review the district court’s findings of fact for clear
error. Anderson, 326 F.3d at 1326.
During the guilty plea hearing, Jackson admitted that he intended to use the
counterfeit currency to purchase drugs and that when he met Miller in anticipation
of going to make the drug deal, he was carrying a handgun in his waistband. The
evidence also showed that Jackson stated that he was not worried about the drug
deal going badly because he was “strapped,” meaning that he was carrying a
firearm. This evidence was sufficient for the district court to find that Jackson
possessed a handgun in connection with the counterfeit currency offense.
Accordingly, the district court did not commit clear error in applying the U.S.S.G.
§ 2B5.1(b)(4) enhancement.
AFFIRMED.
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