[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 31, 2007
No. 06-14144 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00194-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS DEON WILLIAMS,
a.k.a. Bodacious,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 31, 2007)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Carlos Deon Williams appeals his 96-month sentence, which was a 159
percent upward variance from the high-end of the guideline range, imposed after
remand, for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 924(g)(1). In Williams’s first appeal, we held that the district court erred in
cross-referencing the offense of aggravated assault in determining the applicable
offense level for Williams’s offense because the assault was not relevant conduct
under U.S.S.G. § 1B1.3(a)(2).
On appeal after remand, Williams argues that (1) the district court did not
meaningfully consider the correctly calculated guideline range because it imposed
the same sentence on remand that it had applied initially; (2) the district court
essentially sentenced Williams for the aggravated assault again, even though it was
contrary our decision in Williams’s first appeal; (3) his 96-month sentence does
not promote respect for the law; and (4) the district court erroneously relied on
facts from the presentence investigation report “PSI” stating that Williams had
attempted to evade police, which were added to the PSI just after the deadline for
filing objections had passed.
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 whether a
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sentence is reasonable, the district court should be guided by the § 3553(a) factors.
United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66, 160 L.Ed.2d
621 (2005); 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 deterrence;
(6) protection of the public; and (7) the need to avoid unwarranted sentencing
disparities. 18 U.S.C. § 3553(a)(1)-(6). 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. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005).
Here, Williams’s sentence, which was a 59-month upward variance from the
guideline range, was not unreasonable because the district court (1) explicitly
considered many of the 18 U.S.C. § 3553(a) factors; (2) found that the guideline
range was inadequate because it did not adequately reflect the seriousness of
Williams’s crime, his history and characteristics, and the need to provide adequate
deterrence and promote respect for the law; and (3) imposed a sentence below the
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statutory maximum. Moreover, the district court did not improperly rely on the
fact that Williams committed an aggravated assault four days before the instant
offense because that crime was relevant to his history and characteristics. Contrary
to Williams’s argument, nothing in our opinion on the prior appeal precluded the
district court’s consideration of the aggravated assault. In addition, Williams’s
claim, that his sentence promotes disrespect for the law, is without merit. The
record reflects that Williams was convicted of the same offense in 2000, for which
he was sentenced to 40 months’ imprisonment, and, while on supervised release,
he committed the instant offense.
Finally, although Williams claims that he never admitted that he attempted
to elude police when he was apprehended for the instant charge, the record reflects
that, at Williams’s first sentencing hearing, the district court specifically noted that
Williams had attempted to elude police, and Williams did not object. Further, at
Williams’s second sentencing hearing, he acknowledged that the information about
his attempt to evade arrest came from a police report that was available during
initial discovery and was “nothing new.” Therefore, the district court did not err in
making the factual finding that Williams had attempted to evade police because the
information was sufficiently reliable, as Williams admitted that it derived from a
police report, and he did not object at his first sentencing hearing when the court
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stated that he had attempted to evade arrest. See U.S.S.G. § 6A1.3(a); United
States v. Riley, 142 F.3d 1254, 1258 (11th Cir. 1998) (holding that the sentencing
court may consider any information with sufficient reliability).
Accordingly, upon review of the record on appeal and consideration of the
parties’ briefs, we discern no reversible error.
AFFIRMED.
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