[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-14783 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60135-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMUS PETERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 6, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Demus Peterson appeals his 87-month sentence for possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Peterson
challenges the substantive reasonableness of his sentence on the grounds that the
district court ignored mitigating factors relating to his personal characteristics,
failed to consider the effect on the Guidelines calculation caused by the
government’s request for certain drug quantities in its undercover purchases, and
also failed to consider whether the Guidelines disparity between powder cocaine
and cocaine base offenses, combined with the other circumstances of his case,
made the sentence unreasonable. Peterson also challenges his sentence as
procedurally unreasonable, arguing that the district court applied a presumption of
correctness to the Guidelines range and failed to give an adequate analysis of the
18 U.S.C. § 3553(a) factors. For the reasons set forth more fully below, we affirm.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
Booker’s1 requirements, or substantive. See United States v. Hunt, 459 F.3d 1180,
1182 n.3 (11th Cir. 2006). When evaluating the reasonableness of a sentence, we
consider the factors outlined in 18 U.S.C. § 3553(a) and the district court’s reasons
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United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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for imposing the particular sentence. United States v. Williams, 456 F.3d 1353,
1360-61 (11th Cir. 2006), pet. for cert. filed, (U.S. Oct. 19, 2006) (No. 06-7352).
When imposing a sentence, the district court must first correctly calculate the
Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Second,
the district court must consider the following factors to determine a reasonable
sentence:
(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.
Id. While the district court must consider the § 3553(a) factors, it is not required to
discuss each factor. Id. “[A]n acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Id.
“[T]here is a range of reasonable sentences from which the district court may
choose” and the burden of establishing that the sentence is unreasonable in light of
the record and the § 3553(a) factors lies with the party challenging the sentence.
Id. at 788. “The weight to be accorded any given § 3553(a) factor is a matter
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committed to the sound discretion of the district court[,]” and we will not
“substitute our judgment in weighing the relevant factors because our review is not
de novo.” Williams, 456 F.3d at 1363 (citation, quotation marks, and alteration
omitted). Although a sentence within the Guidelines range is not per se
reasonable, the use of the Guidelines remains central to the sentencing process and
we ordinarily expect a sentence within the Guidelines range to be reasonable.
Talley, 431 F.3d at 787-88. However, the district court’s choice of a sentence is
not unfettered. Williams, 456 F.3d at 1363. “When reviewing the length of a
sentence for reasonableness, we will remand for resentencing if we are left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id.
With regard to the procedural reasonableness of Peterson’s sentence, the
district court stated that it had considered the statements of the parties, the PSI,
which contained the advisory Guidelines, the statutory minimum, and the
§ 3553(a) factors. The district court’s analysis of the § 3553(a) factors was
sufficient. See Talley, 431 F.3d at 786 (“[A]n acknowledgment by the district
court that it has considered the defendant’s arguments and the factors in section
3553(a) is sufficient under Booker.”). The district court acknowledged that the
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Guidelines were advisory and found a Guideline sentence “appropriate in this
matter.” Aside from the selection of a Guideline sentence, the record provides no
support for Peterson’s contention that the district court applied a presumption of
correctness to the Guidelines range.
Peterson also has not established that his sentence is substantively
unreasonable. With respect to the sentencing disparity between powder cocaine
and cocaine base offenses, the district court cannot reject Congress’s policy
judgment as to the disparity based either on its disagreement with the policy or
pursuant to § 3553(a)(6). Williams, 456 F.3d at 1366-68. Nevertheless, the court
still can fashion a reasonable sentence in cocaine base cases based on the
individualized, case-specific factors in § 3553(a). See id. at 1369.
However, Peterson cannot establish that these individualized factors made
his sentence unreasonable. With respect to Peterson’s argument regarding
governmental manipulation of the Guideline factors, in Williams, we declined to
decide whether “a finding of sentencing factor manipulation is a valid mitigating
consideration under § 3553(a),” but did not rule out the possibility that it could be
considered. Id. at 1370-71. Assuming, without deciding, that this is a valid
consideration, Peterson cannot show that this alleged manipulation made his
sentence unreasonable. After purchasing 3.2 grams of cocaine base from Peterson
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for $190, an undercover officer arranged the purchase of 2 ounces of cocaine base
for $1,600. However, Peterson, who admitted that he sold cocaine base on a daily
basis, provided the additional 42.2 grams of cocaine base for which he was
ultimately held accountable at sentencing. Moreover, there is no indication of any
entrapment in this case. See United States v. Bohannon, 476 F.3d 1246, 1252
(11th Cir. 2007) (“A sentencing-factor manipulation claim alleges that ‘a
defendant, although predisposed to commit a minor or lesser offense, is entrapped
into committing a greater offense subject to greater punishment.’”) (citation
omitted).
Peterson’s 87-month sentence was at the low end of the advisory Guideline
range, 27 months greater than the statutory minimum 60-month term of
imprisonment, and well below the 40-year statutory maximum term of
imprisonment. Peterson’s Guideline range was affected by the quantity of drugs he
was willing to sell to the undercover officer and by his prior criminal activities.
Under these circumstances, the evidence that Peterson presented in mitigation,
including his attempt to gain an education and support his children, which he
financed with his drug proceeds, and his marijuana addiction, does not warrant a
conclusion that his sentence was unreasonable.
In light of the foregoing, Peterson’s sentence is AFFIRMED.
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