[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 16, 2007
No. 06-15360 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00063-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARA HOOD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 16, 2007)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Kara Hood appeals her sentence of 78 months of imprisonment following a
plea of guilty to conspiracy to distribute at least five hundred grams of cocaine and
five grams of cocaine base. See 21 U.S.C. §§ 841(b)(1)(B)(ii)–(iii), 846. Hood
argues that the district court (1) clearly erred when it applied a two-level
enhancement for the use of a minor in furtherance of the conspiracy, see United
States Sentencing Guidelines § 3B1.4 (Nov. 2005), (2) erred when it refused to
reject the disparate sentencing for crack cocaine versus powder cocaine, and (3)
imposed an unreasonable sentence. We affirm.
STANDARDS OF REVIEW
We review the application by a district court of a Sentencing Guideline de
novo and findings of fact for clear error. See United States v. Wilks, 464 F.3d
1240, 1242 (11th Cir. 2006).
We review a sentence for reasonableness. United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005). “Review for reasonableness is deferential.” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges
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).” Id. “When we
review a sentence for reasonableness, we do not, as the district court did, determine
the exact sentence to be imposed.” Id. “We must evaluate whether the sentence
imposed by the district court fails to achieve the purposes of sentencing as stated in
2
section 3553(a).” Id. “[W]hen the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Id.
II. DISCUSSION
This appeal presents three issues: (1) whether the district court clearly erred
when it applied an enhancement to Hood’s sentence for use of a minor in
furtherance of a conspiracy, see U.S.S.G. § 3B1.4; (2) whether the district court
should have rejected the disparate treatment by Congress of offenses involving
powder cocaine and those involving crack cocaine; and (3) whether the district
court imposed a reasonable sentence. We address each in turn.
First, Hood contends that the district court clearly erred when it applied the
use of a minor enhancement to Hood’s offense conduct, but we disagree. The
advisory Guidelines instruct a district court to increase the offense level of a
defendant by two levels if she “used or attempted to use a person less than eighteen
years of age to commit an offense or assist in avoiding detection of, or
apprehension of, the offense.” See U.S.S.G. § 3B1.4. The enhancement applies to
all participants in the offensive conduct when the use of a minor was “reasonably
foreseeable.” United States v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001).
The district court did not clearly err when it found that Amber’s involvement
3
in the conspiracy was reasonably foreseeable to Hood. Hood’s sister, Amber,
approached Hood about permitting a third-party co-conspirator to cook cocaine in
Hood’s apartment. Amber was a minor at that time.
Second, Hood concedes that her argument that the district court should have
rejected the sentencing discrepancy between powder cocaine offenses and crack
cocaine offenses is foreclosed by our precedent. See United States v. Williams,
456 F.3d 1353 (11th Cir. 2006). The disparate treatment by Congress of powder
versus crack offenses is an impermissible consideration in sentencing. Id. at 1367.
“[I]t is not for the courts to say just how much worse crack cocaine is than powder
cocaine.” Id.
Third, Hood contends that her sentence was unreasonable because of the
disparity between Hood’s sentence of 78 months of imprisonment and the sentence
of Hood’s minor sister, Amber, for one day time served and one year of house
arrest. Hood’s argument fails. The transcript of the sentencing hearing establishes
that the district court sentenced Hood after careful consideration of Hood’s
arguments in favor of mitigation, the Guidelines, and the sentencing factors of
section 3553(a). The sentence Hood received, which was at the low end of the
advisory Guidelines range, was reasonable.
4
Hood’s sentence is
AFFIRMED.
5