[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 24, 2007
No. 06-12594 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00478-CR-T-30-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DASHON COVERTA STARKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 24, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Dashon Coverta Starks appeals his 360-month sentence imposed after he
was found guilty by a jury of conspiring to possess, possessing and manufacturing
five grams or more of cocaine base, in violation of 21 U.S.C. §§ 846,
841(b)(1)(B)(iii) and 851, and 18 U.S.C. § 2. After review, we affirm.
I. BACKGROUND FACTS
A jury found Starks guilty on three counts of drug-related offenses. The jury
also found that Starks’s offenses involved 14.7 grams of cocaine base.
At sentencing, the district court also attributed 14.7 grams of cocaine base to
Starks and used that drug quantity to calculate Starks’s offense level under the
Sentencing Guidelines pursuant to U.S.S.G. § 2D1.1(c)(7).1 The district court also
applied the guidelines career offender provision, pursuant to U.S.S.G. § 4B1.1,
because Starks had two prior felony convictions for controlled substance offenses.
With a total offense level of 37 and a criminal history category of VI, Starks’s
advisory guidelines range was 360 months to life imprisonment. After resolving
several objections by Starks that are not relevant to this appeal, the district court
sentenced Starks to concurrent 360-month sentences on each count. This appeal
followed.
1
The presentence investigation report (“PSI”) attributed 37.5 grams of cocaine base to Starks.
The district court sustained Starks’s objection to the PSI’s drug quantity and found Starks
responsible for 14.7 grams of cocaine base, consistent with the jury. However, the drug quantity
attributed to Stark did not affect his guidelines calculations because, as a career offender convicted
of an offense with a statutory maximum of life, Starks’s offense level was set at 37, pursuant to
U.S.S.G. § 4B1.1(b)(A).
2
II. DISCUSSION
Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Starks
argues that his 360-month sentence is unreasonable because the Sentencing
Guidelines used to calculate his advisory guidelines range are “presumptively
unreasonable.” Starks, who is African American, bases his argument on what he
calls “concessions” made by the Sentencing Commission in a 2004 report entitled
Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal
Criminal Justice System is Achieving the Goals of Sentencing Reform. In the
2004 report, the Sentencing Commission examined, inter alia, disparities in
sentences among minority groups. Starks asserts that the Sentencing Commission
identified several guidelines provisions that had a disproportionate impact on
African American offenders, including the career offender provision of U.S.S.G. §
4B1.1 and the 100-to-1 crack to powder cocaine ratio in U.S.S.G. § 2D1.1. Starks
contends that the Sentencing Commission concluded that the harsher penalties
associated with the career offender and cocaine ratio guidelines provisions were
unjustified. The government does not dispute that these conclusions are contained
in the Sentencing Commission’s 2004 report, but contends that the report does not
make Starks’s sentence unreasonable.
Because Starks raises these arguments for the first time on appeal, we review
3
only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005). Under plain error review, “[a]n appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights.” Id. “‘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. (quoting United States v. Cotton, 535 U.S. 625, 631,
122 S. Ct. 1781, 1785 (2002)).
Here, Starks fails to show error, let alone plain error. After Booker, the
district court first must correctly calculate a defendant’s advisory imprisonment
range under the Sentencing Guidelines before determining an appropriate sentence.
United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006). In so doing, the
district court is not free to disregard provisions of the Sentencing Guidelines
because they have been the subject of criticism. Furthermore, once the advisory
guidelines range has been properly calculated, the district court may not vary from
that range based on a broad, categorical rejection of congressional sentencing
policy reflected in the Sentencing Guidelines. See id. at 1364-68 (reversing district
court’s variance from advisory guidelines based on criticisms of 100-to-1 crack-to-
cocaine ratio). Rather, the district court’s variance from the advisory guidelines
4
range must “reflect[ ] the individualized, case-specific factors in [18 U.S.C.] §
3553(a).” Id. at 1369.2 Thus, Starks cannot show that his sentence is unreasonable
based solely on the generalized disparity concerns raised in the Sentencing
Commission’s 2004 report.
AFFIRMED.
2
On appeal, Starks does not argue that his sentence is unreasonable based on individualized,
case-specific factors in § 3553(a). Rather, Starks makes a sweeping challenge to these two
provisions of the Sentencing Guidelines as “presumptively unreasonable” based on the policy
concerns raised in the Sentencing Commissions 2004 report.
5