[DO NOT PUBLISH]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.
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Appeal from the United States District Court
for the Southern District of Florida
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(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
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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).
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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
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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.
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