[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 3, 2007
No. 06-10527 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14057-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 3, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
David Lee Brown appeals his 60-month sentence for possession of
counterfeit obligations, with intent to defraud, and attempt to utter a counterfeit
obligation with intent to defraud, in violation of 18 U.S.C. § 472. On appeal,
Brown argues that the district court unreasonably sentenced him above the
guideline range without conducting any analysis regarding departures under the
guidelines or the 18 U.S.C. § 3553(a) factors, especially considering that the
Presentence Investigation Report (“PSI”) noted no factors warranting an upward
departure, and the government did not ask for a higher sentence.
BACKGROUND
A grand jury indicted Brown for: (1) possession of counterfeit obligations,
with intent to defraud, in violation of 18 U.S.C. § 472; and (2) attempt to utter a
counterfeit obligation with intent to defraud, in violation of § 472. Brown pled
guilty to both charges, without the benefit of a plea agreement. The PSI assigned
him a base offense level of 9, pursuant to U.S.S.G. § 2B5.1, and reduced it by 2
levels for acceptance of responsibility, resulting in a total offense level of 7.
Brown's criminal history included: (1) first degree petit theft, for obtaining checks
belonging to the Okeechobee County School Board, in 1998; (2) battery in 1998;
(3) attempted lewd/lascivious conduct on a child under 16, with the victim stating
that he had forced her to have intercourse, in 1998; and (4) stalking in 2003.
With a criminal history of V, his guideline range was 12 to 18 months'
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imprisonment. No objections to the PSI were filed.
At sentencing, Brown requested a sentence of time-served because, despite
his high criminal history category, his conviction for attempted lewd conduct was
more of an "older boyfriend-younger girlfriend–18 and 16– kind of combination
that mom and dad didn't think too much of." He stated that he realized, for the first
time when reading his PSI, that his criminal history was serious, and he wanted the
court to give him the opportunity to "turn things around." The court further
questioned Brown about the nature of his attempted lewd conduct on a child
conviction.
The court then reviewed more of Brown's criminal history, stating,"All of
this occurred–the theft occurred in April of ‘98, the battery occurred in July, the
rape occurred in December. It was a good year, huh?," noting that Brown had
received probation for the theft and battery, and all had occurred in the same year.
Brown replied that the state was perhaps at fault for sending the wrong message.
The court stated that the federal courts are "not within the guidelines anymore,
other than to look at them and see if the guideline range is appropriate by looking
at the [§ 3553(a)] factors. . .and to the extent that we go outside the guidelines, that
we impose a sentence that is reasonable." The court then stated that, considering
all of the statements and the PSI, the guideline range, and the § 3553(a) factors, a
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sentence above the guideline range was merited, and it sentenced Brown to 60
months' imprisonment. Brown objected to the sentence as unreasonable.
STANDARD OF REVIEW
“We review the sentence imposed by the district court for reasonableness.”
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam) (citation
omitted). We review for plain error, however, where the defendant did not state
the grounds for an objection in the district court. United States v. Zinn, 321 F.3d
1084, 1087 (11th Cir. 2003).
DISCUSSION
Brown has two separate grounds for arguing that his sentence was
erroneous: (1) the district court did not follow the proper procedure for an upward
departure, and (2) his sentence was procedurally unreasonable. The first challenge
is without merit because the district court sentenced above the guidelines based not
on U.S.S.G. § 4A1.3, but rather, pursuant to its § 3553(a) authority. See United
States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006) (per curiam), petition
for cert. filed, (U.S. Oct. 26, 2006) (No. 06-7517).
Brown has not met his burden of establishing the sentence is unreasonable in
light of the record and § 3553(a) factors. See Talley, 431 F.3d at 788 (defendant
bears the burden). After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
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160 L. Ed. 2d 621 (2005), a district court is required to consider the § 3553(a)
factors in fashioning a reasonable sentence. A district court need not explicitly
consider every single § 3553(a) factor in order for the sentence to be reasonable.
See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). In fact, “an
acknowledgment by the district court that it has considered the defendant's
arguments and the factors in section 3553(a) is sufficient under Booker.” Talley,
431 F.3d at 786.
Here, the court specifically reviewed Brown's criminal history with him,
going through each crime and allowing him to explain, at one point noting that all
the crimes had occurred within a year. The court also noted that Brown had been
treated with "kid gloves" by the state. It stated that it had considered the
statements of the parties, the PSI, and the guideline range, as well as the § 3553(a)
factors, and then sentenced him above the guideline range, indicating that, to the
extent that it was reasonable, a sentence above the guideline range could be
imposed. Given that the court considered Brown's extensive criminal history of
sexual impropriety and battery, and the fact that punishment had not deterred him
previously, all factors under § 3553(a), the court's sentence of 60 months'
imprisonment was reasonable.
Upon review of the record and consideration of the parties’ briefs, we
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discern no reversible error. Accordingly, we affirm.
AFFIRMED.
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