[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14743 AUGUST 27, 2007
Non-Argument Calendar THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 05-00021-CR-5-21-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GIUSEPPE CURELLA,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________
(August 27, 2007)
Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Giuseppe Curella (“Defendant”) appeals his sentence of 150 months’
imprisonment for conspiracy to distribute and possession with intent to distribute
more than 50 grams (actual) and 500 grams (mixture) of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846. We see no reversible
error; and we affirm.
The record shows that Defendant and a co-conspirator, Wesley Wayne
Adkins (“Adkins”), transported drugs from California to Panama City, Florida,
where they separated while Defendant met with prospective buyers. After local
law enforcement responded to a call reporting suspicious activity at a convenience
store, Adkins admitted that controlled substances were located in a nearby vehicle
and was arrested. After Miranda warnings, Adkins admitted to the drug
conspiracy and showed police where he had hidden a gun just before the police’s
arrival at the convenience store. After impoundment of the vehicle, a routine
search uncovered 850 grams (mixed) and 611.6 grams (actual) of
methamphetamine, some drug paraphernalia, and several forms of identification
for Defendant.
Defendant pleaded guilty to all counts of the indictment. The Pre-
Sentencing Investigation Report (“PSI”) proposed a sentencing range of 135 to
168 months’ imprisonment, based on the drug quantity involved, the possession of
2
a firearm by a co-conspirator, and Defendant’s acceptance of responsibility and
criminal history. The PSI also referenced Defendant’s many earlier drug and
stolen property-related arrests. At the sentencing hearing, Defendant did not
object to the PSI, but requested a reduced sentence of 120 months’ imprisonment,
based on several factors, including: (1) Adkins’s reduced sentence;1 (2)
Defendant’s education and previous employment; (3) Defendant’s lack of criminal
history, including the lack of convictions for ten years and the lack of conviction
on the arrests referenced in the PSI; (4) Defendant’s cooperation with
investigators; and (5) the advisory nature of the Guidelines.
In denying Defendant’s request for a downward departure and announcing
the 150-month sentence, the district court stated that “what [Defendant requested]
might be appropriate for a novice who had sort of stumbled unwisely on their first
adventure, but from what I see here, even though there may not have been arrests
or whatever, [Defendant] is certainly a seasoned veteran in the eyes of law
enforcement.” The court also noted that Defendant had already received a safety-
valve reduction for his cooperation with investigators and did not merit an
additional reduction. The court then adopted the PSI’s sentencing calculation and
1 Adkins was sentenced to 108 months’ imprisonment for the drug conviction and for illegal
possession of a firearm. Adkins’s sentence was based in part on a reduction under U.S.S.G. § 5K1
for substantial assistance.
3
concluded that the mid-range sentence was appropriate “[u]pon review of all
factors properly considered under 18 U.S. Code, section 3553(a), and taking into
account the advisory nature of the United States Sentencing Guidelines. . . .”
On appeal, Defendant argues that the sentence is unreasonable because the
district court did not give proper weight to the section 3553(a) mitigating factors
and relied too heavily on the Guidelines. He specifically contends that the
sentencing court did not consider his continued employment, college education, or
that the crime was motivated by his own drug use. He also argues that the Court
did not give proper weight to his lack of criminal history and failed to consider
Adkins’s reduced sentence and Defendant’s lack of connection to the firearm
Adkins hid from the police.2 And, he asserts that the Guidelines’ heavy reliance
on drug quantity resulted in an unreasonable sentence.
Pursuant to the Supreme Court’s instructions in United States v. Booker,
543 U.S. 220, 264-65, 125 S. Ct. 738, 767, 160 L. Ed. 2d 621, we review a
defendant’s ultimate sentence for reasonableness.3 United States v. Williams, 435
2 Defendant does not explicitly argue that the firearm enhancement was improperly applied to
him. Thus, he has waived the argument. See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.
2006). In any event, Defendant acknowledges that he did not challenge in the district court the
firearm enhancement and concedes that the government proffered that Adkins would state that
Defendant knew about the gun.
3 Defendant urges de novo review, but Booker clearly requires us to review an ultimate sentence
for reasonableness. Booker, 543 U.S. at 264-65. The Government, in turn, argues that we should
4
F.3d 1350, 1353 (11th Cir. 2006). This review is “deferential,” and “the party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in light of both th[e] record and the factors in section 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although a sentence
within the Guidelines range is not per se reasonable, we have noted that we would
“ordinarily” expect such a sentence to be reasonable. Id.; see also Rita v. United
States, 127 S. Ct. 2456, 2462-63 (2007) (concluding that court of appeals may
apply non-binding presumption of reasonableness to a properly calculated
Guidelines-range sentence).
Contrary to Defendant’s assertions, a review of the record shows that the
district court in this case considered Defendant’s arguments and the section
3553(a) mitigating factors in imposing a sentence at the middle of the applicable
Guidelines range and well below the statutory maximum of life imprisonment.
The district court’s reliance on the Guidelines range was not erroneous, as the
court did take the section 3553(a) factors into account and the sentence was
ultimately case-specific. See United States v. Hunt, 459 F.3d 1180, 1185-86 (11th
Cir. 2006) (upholding sentence as reasonable where the court expressly
review only for plain error because Defendant did not raise a specific objection to the reasonableness
of his sentence below. But, we need not resolve that question here because of our conclusion that
Defendant’s sentence satisfies the higher reasonableness standard.
5
acknowledged that it had considered the section 3553(a) factors and “ultimately
decided to give considerable weight to the Guidelines in this case”). The court
was not required to analyze specifically and accept or reject each of Defendant’s
arguments. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(stating that “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”); accord Rita, 127 S. Ct. at 2469 (“Where...
the record makes clear that the sentencing judge considered the evidence and
arguments, we do not believe the law requires the judge to write more
extensively.”).
As in Scott, the district court heard lengthy arguments from Defendant and
his counsel on circumstances that might warrant a reduced sentence and
specifically responded to some of Defendant’s arguments, including his criminal
history argument. Adkins received a reduced sentence because he implicated
Defendant and informed police about the gun, which otherwise may not have been
discovered; the district court could therefore reasonably view Adkins’s
cooperation as more substantial. And, we have earlier rejected Defendant’s
argument that the perceived harshness of penalties for drug offenders is an
appropriate basis for a lower sentence. See Williams, 456 F.3d at 1367 (noting
6
that a court’s general disagreement with Congress’s policy decision regarding the
severity of punishment for crack cocaine offenses is an improper basis for
sentencing).
When coupled with the court’s statement that it had considered the section
3553(a) factors, the transcript adequately shows consideration of section 3553(a).
See Scott, 426 F.3d at 1329-30 (noting that such a “statement alone is sufficient in
post-Booker sentences”). Therefore, we conclude that Defendant has failed to
show that the district court did not comply with Booker. Because the district court
imposed a reasonable sentence after considering the factors listed in U.S.C.A. §
3553(a), we affirm Defendant’s sentence.
AFFIRMED.
7