United States v. Delwin Cole

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2007
No. 06-16186 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00262-CR-T-26-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DELWIN COLE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(June 22, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

After pleading guilty, Delwin Cole appeals his 63-month sentence for being
a felon in possession of a firearm. After review, we affirm.

I. BACKGROUND

Cole was charged with two counts of possessing a firearm after being

convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Cole

pled guilty without the benefit of a plea agreement.

The presentence investigation report (“PSI”) recommended a total offense

level of 19 and a criminal history score of VI, resulting in an advisory guidelines

range of 63 to 78 months’ imprisonment. Cole did not object to the PSI’s

guideline calculations.

Prior to the sentencing hearing, Cole filed a sentencing memorandum,

stating that he had experienced a long struggle with drug addiction and that he had

been supplied cocaine by the confidential informant (“CI”) involved in his firearms

offenses. According to Cole, the CI had asked Cole to sell a gun for him and

offered to split the proceeds. On two subsequent occasions, the CI gave Cole a gun

and instructed him to sell it to individuals who were actually undercover agents

with the bureau of Alcohol, Tobacco and Firearms (“ATF”). Cole requested a

four-year sentence, arguing that a variance from the advisory guidelines range was

justified in light of his struggle with drug addiction, the fact that the CI

“orchestrated” the gun sales, and the fact that he was not given an opportunity to

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assist the government because the government would not accept his version of the

facts.

At sentencing, Cole requested a two-and-a-half to three year sentence based

on: (1) Cole’s allegations in the sentencing memorandum; (2) the fact that most of

Cole’s past offenses were non-violent and related to his drug addiction; and (3) the

fact that Cole was not given a meaningful opportunity to cooperate with the

government. The district court stated that Cole’s allegations in the sentencing

memorandum were troubling, but that the allegations did not constitute entrapment

and that the bottom line was that Cole “was selling guns for money so he could buy

drugs.” In imposing a 63-month sentence, the district court stated that it had

considered the “statutory factors,” the “advisory guideline range” and Cole’s “past

history” and concluded that “even assuming what [Cole] said [was] true about the

informant,” the guideline range was a reasonable range for the sentence. Cole filed

this appeal.

II. DISCUSSION

On appeal, Cole argues that his sentence was unreasonable, in light of the

fact that the CI took advantage of his addiction to drugs to induce him to sell

firearms to undercover agents.

After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

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court, in determining a reasonable sentence, must consider the correctly calculated

advisory guideline range and the 18 U.S.C. § 3553(a) factors. United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005).1 Although the district court must

consider the § 3553(a) factors, “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). Rather, an acknowledgment by the district

court that it has considered the defendant’s arguments and the § 3553(a) factors

will suffice. Id. at 1329-30.

We review a defendant’s ultimate sentence for reasonableness in light of the

§ 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.

2006). This “[r]eview for reasonableness is deferential,” and “when the district

court imposes a sentence within the advisory Guidelines range, we ordinarily will

expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[T]he party

who challenges the sentence bears the burden of establishing that the sentence is

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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
sentencing guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a).

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unreasonable in the light of both [the] record and the factors in section 3553(a).”

Id.

Here, we cannot say that Cole’s 63-month sentence was unreasonable. Cole

does not challenge the district court’s guidelines calculations. Furthermore, the

district court explicitly noted that it had considered the § 3553(a) factors and the

advisory guideline range. The district court imposed a sentence at the low end of

the advisory guideline range after explicitly considering the circumstances

surrounding Cole’s offenses, including his allegations of misconduct on the part of

the CI.

AFFIRMED.