[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 10, 2007
No. 06-14641 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00021-CR-AAA-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE MICHAEL SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 10, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Eddie Michael Smith appeals his 168-month sentence for attempted bank
robbery, in violation of 18 U.S.C. § 2113(a). On appeal, Smith argues that his
sentence is unreasonable because the district court failed to consider mitigating
information concerning his criminal history, nature, and characteristics, as required
by 18 U.S.C. § 3553(a)(1). We affirm.
The relevant facts are straightforward. On April 12, 2006, Smith was
indicted for attempted bank robbery, in violation of 18 U.S.C. § 2113(a). He pled
guilty, pursuant to a written plea agreement, and proceeded to sentencing.
According to the presentence investigation report (“PSI”), on March 18, 2006,
Smith entered the “teller line” of a SunTrust Bank, handed a demand note to the
teller, and received in return approximately $2,250.00. Both tellers on duty
believed Smith had a gun during commission of the crime. Later that day, Smith
was apprehended by police officers.
The PSI recommended a base offense level of 20 and the following
adjustments: (1) a 2-level upward adjustment, pursuant to U.S.S.G. § 2B3.1(b)(1),
since the property of a financial institution was taken; (2) a 2-level upward
adjustment, pursuant to U.S.S.G. § 2B3.1, because Smith made a threat of death
during the offense; and (3) a 3-level downward adjustment, pursuant to U.S.S.G. §
3E1.1, for acceptance of responsibility. Based on Smith’s prior convictions for
child molestation and possession of methamphetamine, the career-offender
provisions of U.S.S.G. § 4B1.1 mandated an offense level of 32. After a reduction,
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pursuant to U.S.S.G. § 3E1.1, for acceptance of responsibility, Smith’s adjusted
offense level was 29. With a criminal history category VI, based both on Smith’s
14 criminal history points and the career-offender provisions of § 4B1.1, Smith
faced an advisory Guidelines range of 151 to 188 months’ imprisonment. Under
18 U.S.C. § 2113(a), the maximum term of imprisonment was 20 years.
The PSI also disclosed information regarding Smith’s physical and mental
health including that Smith was an insulin-dependant diabetic and was prescribed
the anti-depressant Remron. On least two prior occasions, Smith had attempted
suicide. Moreover, Smith had reported a lengthy and extensive history of alcohol
and abuse of drugs, including cocaine, methamphetamine, marijuana, Hydrocodone
and Xanax. Smith also reported that he was under the influence of marijuana,
cocaine, and methamphetamine when he committed the instant offense. Smith did
not object to the factual findings of the PSI or the calculation of the advisory
Guidelines range.
At the sentencing hearing, the district court adopted the recommendations of
the PSI and then heard Smith’s argument and evidence in support of mitigation.
Smith’s mother, Diane Smith, testified about the nature of Smith’s prior conviction
for child molestation. She urged that the offense should not be considered as part
of her son’s criminal history because of his young age (18 years old) at the time of
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commission, his failure to re-offend, and extenuating family circumstances at the
time of his guilty plea. She also asked the court to impose a sentence below the
Guidelines range because Smith did not act violently or possess a weapon during
the robbery, he was in a state of despair and intoxication during the robbery, and he
was currently receiving medical treatment for mental illness. The district court
also heard Smith’s statement of remorse for the instant offense. Smith’s counsel
asked the district court to sentence Smith to probation and treatment.
The district court imposed 168-month term of imprisonment, which was at
the middle of the advisory range, stating that it had considered the evidence and
arguments and “all of the factors set forth in the statute, Section 3553(a) of Title
18, and using the Sentencing Reform Act as a guide.” The district court
determined that a Guidelines sentence was appropriate given Smith’s extensive
criminal record and the need for a structured environment, and that there was no
justification to go below the Guidelines range. This appeal followed.
We review the district court's sentence for reasonableness. See United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable. . . .” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
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We have established a two-part process for district courts to use in
fashioning sentences. Id. at 786. First, the court must consult and correctly
determine the sentence range prescribed by the Sentencing Guidelines. Id.
Second, the court must fashion a reasonable sentence by considering the factors
enumerated in 18 U.S.C. § 3553(a). Id. The§ 3553(a) factors include: (1) the
nature and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense; (4) the need for
deterrence; (5) the need to protect the public; (6) the Sentencing Guidelines range;
and (7) the need to avoid unwanted sentencing disparities. See 18 U.S.C. §
3553(a). We do not require a district court to state on the record that it has
considered each of the § 3553(a) factors. See United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005). Rather, some indication in the record that the court
adequately and properly considered appropriate factors in imposing the sentence
will be sufficient. Id.
Here, the district court accurately calculated the advisory Guidelines range;
heard Smith’s evidence and argument in support of mitigation; considered the
applicable § 3553(a) factors; discussed its particular reasons for imposing a mid-
range sentence -- again, these reasons included Smith’s extensive criminal record
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and his need for a structured environment; and sentenced Smith at the middle of
the Guidelines range. Based on our review, Smith has not met his burden to show
that his sentence was unreasonable. Accordingly, we affirm.
AFFIRMED.
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