United States v. Sandy Devon McKenzie

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15023 AUGUST 21, 2007
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK

D.C. Docket No. 05-20931-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANDY DEVON MCKENZIE,

Defendant-Appellant.

----------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------------------------------

(August 21, 2007)

Before EDMONDSON, Chief Judge, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Defendant-Appellant Sandy Devon McKenzie, who was sentenced as an

armed career criminal, appeals his 235-month sentence following a jury trial for
possession of a firearm, 18 U.S.C. § 922(g)(1), and three counts of drug

possession, 21 U.S.C. § 844(a). No reversible error has been shown; we affirm.

We first address McKenzie’s argument that application of the armed career

criminal enhancement, 18 U.S.C. § 924(e), violated the Fifth and Sixth

Amendments pursuant to Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), Blakely

v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738

(2005). McKenzie contends that prior convictions that qualified him as an armed

career criminal were not alleged in his indictment nor proven to the jury and that,

as a result, the district court erred in increasing his sentence beyond the ten-year

statutory maximum penalty for a violation of 18 U.S.C. § 922(g)(1). McKenzie

concedes that the Supreme Court’s decision in Almendarez-Torres v. United

States, 118 S.Ct. 1219 (1998), “is an impediment to his arguments”; but he asserts

that Almendarez-Torres only permits judicial fact-finding about the existence of

prior convictions and does not allow “qualitative factual determinations” about

prior convictions.1

1
Because McKenzie did not object to the convictions listed in his PSI that supported his enhanced
sentence as an armed career criminal, McKenzie admitted those facts. See United States v. Shelton,
400 F.3d 1325, 1330 (11th Cir. 2005). About his criminal history, McKenzie only objected to
assigning criminal history points for two misdemeanor cases that, McKenzie acknowledged, “don’t
impact [his] classification as an armed criminal.” McKenzie also admitted at sentencing that he
“qualifie[d] as an armed career criminal.”

2
McKenzie failed to raise a constitutional challenge to his sentence in the

district court; so we review his claim only for plain error. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Therefore, McKenzie must

establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id.

(internal quotation omitted). “If all three conditions are met, [we] may then

exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation omitted).

McKenzie has failed to show error here. The Supreme Court’s decision in

Booker reaffirmed this principle from Apprendi: “Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.” See

Booker, 125 S.Ct. at 756. Under Almendarez-Torres, which remains binding

precedent, “the government need not allege in its indictment and need not prove

beyond a reasonable doubt that a defendant had prior convictions for a district

court to use those convictions for purposes of enhancing a sentence.” United

States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005); see also

United States v. Orduno-Mireles, 405 F.3d 960, 963 (11th Cir. 2005) (explaining

3
that Almendarez-Torres remains good law “until the Supreme Court determines

that Almendarez-Torres is not controlling precedent”) (internal quotation omitted).

The government is not required to prove the nature of a defendant’s prior

convictions to a jury beyond a reasonable doubt. United States v. Greer, 440 F.3d

1267, 1275 (11th Cir. 2006). Therefore, a district court can find facts about both

the existence and the nature of a defendant’s prior convictions. Id. Because we

continue to follow Almendarez-Torres, the district court did not err, much less

plainly err, in using McKenzie’s convictions to enhance his sentence as an armed

career criminal.2

McKenzie next argues that a certified copy of a printout of his prior

convictions was not “constitutionally sufficient” to prove his prior convictions.

Again, because McKenzie failed to raise this argument before the district court, we

review it only for plain error. See Rodriguez, 398 F.3d at 1298. Because

McKenzie failed to challenge his prior convictions used to enhance his sentence,

we see no merit in McKenzie’s claim.

2
To the extent that McKenzie challenges the application of the 180-month mandatory minimum
of 18 U.S.C. § 924(e), we reject this argument as without merit. After Apprendi, the Supreme Court
upheld the constitutionality of mandatory minimum sentences, see Harris v. United States, 122 S.Ct.
2406, 2420 (2002); and the Supreme Court has not overruled that decision.

4
We turn to McKenzie’s assertion that his sentence was unreasonable

because the district court did not consider adequately the sentencing factors set out

at 18 U.S.C. § 3553(a). McKenzie contends that the district court should have

considered that he has struggled with drug addiction and that he is a deportable

alien who will be subject to harsh prison conditions.

Because McKenzie was sentenced after the Supreme Court’s decision in

United States v. Booker, 125 S.Ct. 738 (2005), we review his sentence for

reasonableness in the light of the 18 U.S.C. § 3553(a) factors. United States v.

Winingear, 422 F.3d 1241, 1244-46 (11th Cir. 2005). Under section 3553(a), a

district court should consider, among other things, the nature and circumstances of

the offense, the history and characteristics of the defendant, the need for adequate

deterrence and protection of the public, policy statements of the Sentencing

Commission, provision for the medical and educational needs of the defendant,

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. §

3553(a)(1)-(7). The party challenging the sentence “bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

5
We conclude that McKenzie’s sentence was reasonable. The district court

correctly calculated his Guidelines imprisonment range as 235 to 293 months; and

the district court sentenced McKenzie to the lowest point of that range. See id.

(noting that “ordinarily we would expect a sentence within the Guidelines range to

be reasonable”). The Supreme Court has recently explained that “a court of

appeals may apply a presumption of reasonableness to a district court sentence that

reflects a proper application of the Sentencing Guidelines.” See Rita v. United

States, 127 S.Ct. 2456, 2462 (2007). In addition, McKenzie’s sentence was far

less than the statutory maximum sentence of life imprisonment under 18 U.S.C. §

924(e). See United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993).

The district court indicated that it determined McKenzie’s sentence after

considering statements of the parties, the advisory Guidelines, and the section

3553(a) factors. The district court also stated that McKenzie’s sentence was

appropriate and reasonable and that sentencing him to the lowest point of his

advisory Guidelines range provided a sentence that was sufficient for punishment

and deterrence.

The district court judge was not required to discuss all of the section

3553(a) factors at the sentencing hearing. See United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005) (explaining that “nothing in Booker or elsewhere

6
requires the district court to state on the record that it has explicitly considered

each of the section 3553(a) factors or to discuss each of the section 3553(a)

factors”). Based on the factors outlined in section 3553(a) and our review of the

record, we conclude that McKenzie has not carried his burden of establishing that

his 235-month sentence is unreasonable.

AFFIRMED.