[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-15868
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 04-00071-CR-ORL-19-KRS
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MADAIRES BOYD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 6, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Madaires Boyd appeals his ninety-two month sentence for possessing with
intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). First, he
challenges the district court’s denial of his motion for a downward departure based
on asserted over-representation of criminal history. Second, he argues that the
district court erred by declining to find unconstitutional the sentencing disparity
between cocaine base (“crack cocaine”) and powder cocaine. Third, he claims that
his sentence is unreasonable. We conclude that we lack jurisdiction to review the
district court’s denial of a downward departure, that the district court did not
plainly err in declining to find unconstitutional the sentencing disparity, and that
Boyd’s sentence is reasonable.
I. BACKGROUND
Boyd was arrested after a confidential source bought from him $450.00
worth of crack cocaine weighing 7.2 grams. He pled guilty to possessing with
intent to distribute five or more grams of crack cocaine, without a written plea
agreement.
The district court originally sentenced Boyd before United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d. 621 (2005), was decided. It followed
the United States Sentencing Guidelines’ mandatory scheme and sentenced Boyd
to ninety-five months’ imprisonment with forty-eight months’ supervised release.
Boyd later moved to vacate his sentence pursuant to 28 U.S.C. § 2255, claiming
ineffective assistance of counsel. The district court granted Boyd’s motion,
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vacated the sentence, and then reimposed the sentence to allow Boyd to file a
timely notice of appeal. Boyd timely appealed, and the government conceded a
Booker error in the initial sentencing. We vacated Boyd’s reimposed sentence and
remanded in full for re-sentencing.
Boyd’s pre-sentencing investigation report (“PSR”) set the base offense
level at twenty-six since the offense involved more than five grams but fewer than
twenty grams of cocaine base. U.S.S.G. § 2D1.1(c)(7). The PSR subtracted three
offense levels for acceptance of responsibility. §§ 3E1.1(a), (b). The adjusted
offense level was twenty-three, with a category VI criminal history. A probation
officer determined that the applicable guideline range was 92 to 115 months’
imprisonment. The officer also noted the statutory range of five to forty years’
imprisonment. 21 U.S.C. § 841(b)(1)(B).
Boyd initially argued during his re-sentencing that the government should
be required to prove that he possessed and distributed crack, not powder, cocaine.
The court replied that Boyd had already admitted in his plea to possessing and
selling crack. It further warned him that the credit awarded for accepting
responsibility would be compromised if he put the government to its burden of
proof. Boyd then withdrew the objection.
Boyd also sought a downward departure, claiming that the PSR over-
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represented his criminal history. He specifically claimed that his sexual battery
conviction as a juvenile should really have been considered a form of statutory
rape. Boyd asked for the statutory minimum of five years’ imprisonment. He also
asked the court to give the same weight to his asserted over-represented criminal
history and to the advisory guidelines range when considering the § 3553(a)
factors.
The district court denied Boyd’s motion for a downward departure. It then
individually assessed each of the §3553(a) factors and sentenced him to ninety-
two months’ imprisonment. The court imposed a sentence at the lower end of the
guideline range because she did not “want this sentence to be viewed as a penalty
for what [Boyd] did, which was to challenge and bring up the ineffective
assistance of counsel[.]” The judge also recommended that Boyd receive job
training, treatment for drug use and anger management, and the opportunity to
finish his GED.
Boyd then asked the court to clarify whether it considered the advisory
guidelines as “a presumptive sentence.” The court replied, “They are not
presumptive . . . . But I do think the Guidelines give guidance, and I do look at
them in sentencing. But I also go through these and try to figure out ways that
they might not apply, which I’ve done” here. Boyd then timely appealed his new
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sentence.
II. DISCUSSION
A. Downward Departure for Over-represented Criminal History
Boyd claims that the PSR over-represents his criminal history and that the
district court erred by denying his motion for a downward departure. He
specifically contends that his sexual battery conviction was really a form of
statutory rape. But the district court accepted the PSR’s conclusion that Boyd
committed sexual battery at age fourteen. Boyd thus argues that the district court
did not consider all the available information before imposing the new sentence.
We have jurisdiction to review a district court’s refusal to grant a downward
departure in sentencing only if the court incorrectly believed that it lacked the
authority to do so. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
2005). The record suggests that the district court recognized and displayed its
authority to grant (or deny) Boyd’s request. It particularly noted that Boyd had
“compiled a serious criminal record” in “a very short lifetime.” We therefore lack
jurisdiction to review the district court’s decision. Id.1
B. Sentencing Disparity Between Crack and Powder Cocaine
Boyd objects to the disparate sentences for crack and powder cocaine. He
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We have also held that Booker does not alter the “rule that a district court’s discretionary
decision not to depart downward is unreviewable.” Id. (quoting United States v. Frokjer, 415
F.3d 865, 875 (8th Cir. 2005).
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claims that his due process rights were violated because he was denied the
opportunity to present evidence about the disparity’s unreasonableness. Because
Boyd withdrew his objection at re-sentencing and consequently never raised a due
process claim, we review only for plain error Boyd’s newly raised claim. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Boyd’s contention that the crack-powder disparity is unconstitutional is
foreclosed by our binding precedent. See United States v. Williams, 456 F.3d
1353, 1364-69 (11th Cir. 2006) (declining to second-guess Congress’ decision to
maintain the crack-powder sentencing disparity). The district court was
accordingly not obligated sua sponte to consider the sentencing disparity. We find
no plain error in its decision not to do so.
C. The Reasonableness of Boyd’s Sentence
Boyd’s final claim is that his sentence is unreasonable. When reviewing a
sentence, we first ensure that the district court correctly calculated the guideline
range. Winingear, 422 F.3d at 1245. Then we review the sentence for
reasonableness in light of the 18 U.S.C. § 3553(a) factors and “evaluate whether
the sentence achieves the purposes of sentencing” set forth in that statute. United
States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006) (citations omitted).
Reasonableness review is “deferential.” United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). The challenging party “bears the burden of establishing
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that the sentence is unreasonable in light of both [the] record and the factors in
section 3553(a).” Id. Although a sentence within the guideline range is not per se
reasonable, “when the district court imposes a sentence within [that] . . . range, we
ordinarily will expect that choice to be a reasonable one.” Id. The district court is
charged with imposing a sentence that is “sufficient, but not greater than
necessary.” 18 U.S.C. § 3553(a). It need not recite a laundry list of the § 3553(a)
factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, the
record must reflect that the court adequately and properly considered those factors
and the applicable advisory guideline range. Id.
The district court correctly calculated the guideline range. Boyd’s category
VI criminal history and Level 23 offense merited a range of 92 to 115 months.
The district court also considered every § 3553(a) factor even though it was not
required to do so. Id. It specifically articulated in open court the nature and
circumstances of the offense, Boyd’s history and characteristics, the need for the
sentence to reflect the seriousness of offense, the kinds of available sentences, the
advisory guidelines, and the need to avoid unwarranted disparities among
defendants in Boyd’s situation. 18 U.S.C. § 3553(a)(1-7).
Furthermore, Boyd’s sentence was substantively reasonable. The statutory
maximum for Boyd’s offense was forty years’ imprisonment. Yet, the district
court imposed a sentence at the lower end of the advisory guideline range. Boyd’s
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ninety-two month sentence was not greater than necessary to achieve the purposes
of sentencing. We conclude that Boyd has not met his burden of establishing that
his sentence is unreasonable in light of the record and the § 3553(a) factors. See
Talley, 431 F.3d at 788. Boyd’s sentence is therefore affirmed.
AFFIRMED.
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