[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 5, 2006
No. 05-15411
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60152-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ALLEN STUMPNER
a.k.a. Richard Allen Anthony,
a.k.a. Romie Addison Crawley,
a.k.a. Jack Cady,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
___________________
(April 5, 2006)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Appellant Richard Allen Stumpner appeals his 292 month sentence for
conspiracy, possession, and intent to distribute cocaine, and possession of a
firearm by a convicted felon and fugitive, in violation of 21 U.S.C. §§ 963, 846,
841(a)(1), and 18 U.S.C. §§ 922(g)(1) and (2), and argues it was unreasonable
under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005). Specifically, Stumpner argues that his sentence is excessive and
unreasonable and because he is an elderly, 74-year old, man who suffered from
long-term drug addiction, the purposes of sentencing would be satisfied by a much
shorter term of custody.1 Stumpner also argues that his sentence is unreasonable
because the district court did not analyze the sentencing factors set forth in 18
U.S.C. § 3553(a). Stumpner further argues that the district court focused on one
factor set forth in 18 U.S.C. § 3553(a)(4), the sentencing range, but did not
analyze his argument that a lengthy sentence below the advisory guideline range
was sufficient. In addition, Stumpner argues that the district court did not mention
a second factor, § 3553(a)(1) (the nature and circumstances of the offense and
history and characteristics of the defendant), in pronouncing his sentence.
1
On appeal, Stumpner does not challenge the district court’s denial of his motion for a minor
role adjustment; therefore, such claim is abandoned. See United States v. Scott, 426 F.3d 1324,
1328 (11th Cir. 2005).
2
We have “jurisdiction under §3742(a)(1) to review sentences for
unreasonableness.” United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.
2006).
Sentences imposed under an advisory guidelines system are reviewed for
reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765,
160 L. Ed. 2d 621 (2005). Following the Booker decision, we stated that the
district court must first correctly calculate the defendant’s guideline range, then,
using the 18 U.S.C. § 3553(a) sentencing factors, the court can impose a more
severe or more lenient sentence as long as it is reasonable. United States v.
Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005). Furthermore, “[r]eview for
reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both th[e] record and
the factors in section 3553(a).” Id. A sentence within the advisory guidelines
range is not per se reasonable, but is expected to be reasonable. Id.
The specific factors to be taken into consideration under a reasonableness
review are those found in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 261, 125
S. Ct. at 765. The factors to be considered include:
3
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
--(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the
defendant with needed [treatment]. . . .
18 U.S.C. § 3553(a).
We have held, “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). Accordingly, we do not review for the specific
enumeration of the § 3553(a) factors; rather we use those factors to determine if a
sentence is reasonable. Id. Furthermore, we have held that a district court’s
statement that it has considered the § 3553(a) factors is alone sufficient in
post-Booker sentences to indicate that it considered the factors. Id. We have held
that the defendant’s sentence was reasonable when the district court accurately
calculated the guideline range, stated that it had considered the § 3553(a) factors,
and sentenced the defendant at the low end of the range which reflected the court’s
consideration of his evidence in mitigation. See Scott, 426 F.3d at 1330.
The sentencing guidelines present policy statements suggest that “[a]ge may
be a reason to depart downward in a case in which the defendant is elderly and
4
infirm. . . .” U.S.S.G. § 5H1.1. In addition, the policy statements provide that
“[d]rug or alcohol dependence or abuse is not a reason for a downward departure.”
U.S.S.G. § 5H1.4.
Here, the record demonstrates that the district court considered the
§ 3553(a) factors, accurately calculated the guideline range, and sentenced
Stumpner at the low end of the guidelines range. See Scott, 426 F.3d at 1330.
First, the district court explicitly mentioned its consideration of the § 3553(a)
factors when it stated, “[t]he Court . . . has consulted and taken into account the
advisory sentencing guidelines as well as the sentencing factors enumerated in
[§ 3553(a)], including the need for the sentence in this case to reflect the
seriousness of the offense, to promote respect for the law and to provide just
punishment, adequate deterrence and to protect the public.” See Winingear, 422
F.3d at 1246.
Second, the district court explicitly mentioned its consideration of
Stumpner’s arguments when it stated, “[t]he Court has considered the statements
of the parties . . . .” The district court rejected Stumpner’s argument that he should
receive a lesser sentence because he was 74-years old and the recommended
guideline range would practically impose a life sentence. The district court
concluded that Stumpner’s criminal history and the seriousness of the instant
5
offenses outweighed his elderly status and warranted a sentence within the
recommended guideline range. See U.S.S.G. § 5H1.1. Moreover, Stumpner did
not present any evidence to show that he was infirm or unable to handle
incarceration.
Stumpner’s argument that he should receive a reduced sentence because he
has suffered from long-term drug addiction fails because even under the
sentencing guidelines policy statements, drug or alcohol dependence or abuse is
not a valid reason for departure.
For the foregoing reasons, we affirm Stumpner’s sentence.
AFFIRMED.
6