United States v. Arnold Sylvester Lindsay, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 7, 2007
No. 06-14529 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00021-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNOLD SYLVESTER LINDSAY, JR.,
a.k.a. Sylvester Lindsay,
a.k.a. Poison,
a.k.a. Jeezy,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(August 7, 2007)

Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
 Arnold Lindsay appeals his conviction for knowingly possessing a firearm

that had an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and

924(a)(1)(B), and the 420-month sentence he received after he pled guilty to four

counts of being a felon in possession of a firearm or ammunition, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2); two counts of delivering a firearm or

ammunition to a juvenile, in violation of 18 U.S.C. §§ 922(x)(1) and 924(a)(6)(B);

one count of possessing a firearm that had an obliterated serial number, in violation

of 18 U.S.C. §§ 922(k) and 924 (a)(1)(B); and one count of discharging a firearm

in a school zone, in violation of 18 U.S.C. §§ 922(q)(2) and (3) and 924(a)(1)(B)

and (a)(4). On appeal, Lindsay raises three claims. First, he argues that there was

no factual basis to support his guilty plea to possessing a firearm (a Lorcin .380

caliber semiautomatic handgun) that had an obliterated serial number, a violation

of 18 U.S.C. § 922(k), because, at the plea colloquy, he denied knowing of the

obliteration. Second, Lindsay claims that the district court erred at sentencing by

providing an insufficient explanation to support a Guidelines-departure sentence,

under U.S.S.G. § 4A1.3. Finally, he challenges the reasonableness of the district

court’s imposition of an upward variance from a Guidelines range of 168 to 210

months’ imprisonment to a 420-month term of imprisonment. After thorough

review of the record and careful consideration of the parties’ briefs, we affirm.

2
 I.

The facts relevant to our analysis are these. On February 23, 2006, Lindsay

was indicted on four counts of being a felon in possession of a firearm or

ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts 1-4);

two counts of delivering a firearm or ammunition to a juvenile, in violation of 18

U.S.C. §§ 922(x)(1) and 924(a)(6)(B) (Counts 5 and 6); one count of possessing a

firearm that had an obliterated serial number, in violation of 18 U.S.C. §§ 922(k)

and 924 (a)(1)(B) (Count 7); and one count of discharging a firearm in a school

zone, in violation of 18 U.S.C. §§ 922(q)(2) and (3) and 924(a)(1)(B) and (a)(4)

(Count 8). The charges arose out of Lorcin’s possession of ammunition for various

types of guns, including a Remington 9mm, a Winchester .380 caliber, and a

Lorcin .380 caliber, and possession of a Lorcin .380 caliber semiautomatic

handgun. On the eve of trial, Lindsay pled guilty to the charges against him,

without the benefit of a written plea agreement.

During the subsequent plea colloquy, the district court first confirmed that

Lindsay: understood the plea proceedings; was not under the influence of drugs or

alcohol; did not suffer from a mental or emotional illness; understood his

constitutional rights associated with a trial by jury and his waiver of those rights;

and understood his right to appeal his guilt and his waiver of that right. The court

3
then instructed Lindsay: “If I accept your plea, you must understand you won’t be

able to change your mind later and withdraw the plea. This is the time to make that

decision, and it will be binding upon you. Do you understand that?” Lindsay

indicated that he understood.

The government then made its factual proffer in support of the plea. As part

of the proffer on Count 7 of the indictment, which charged that Lindsay possessed

“a Lorcin .380 caliber . . ., knowing that the manufacturer’s serial number had been

removed and obliterated from the firearm,” the government stated: “That handgun

had an obliterated serial number. Each of the numbers on that handgun had been

drilled out with a drill bit, . . . and the defendant did know the serial number on that

firearm has been drilled out prior to his possession.” The government also

proffered that its evidence at trial would include: “a number of witnesses that

would testify that the firearm was, in fact, the defendant’s Lorcin .380 and that he

had left it at Alex Burkholter’s home to come and retrieve it on other occasions.

We have other witnesses, Your Honor, that would testify to him being in

possession of the firearm on various other instances and those could be provided as

404(b) notice to the defendant.”

The government’s proffer prompted the following exchange:

[Lindsay’s Attorney]: Judge, [Lindsay] was talking about that he
didn’t really know that the obliterated serial number was there, but I

4
 explained to him that it could be a real knowledge that he knew or
should have known that it was obliterated by close examination.
That’s the way I explained it to him. He said he really didn’t–wasn’t
aware of the obliterated serial number at the time, that the gun was
retrieved.

The Court: But you do acknowledge that you were in
possession of that gun?

Lindsay: Yes, sir, I understand that, but I was just confused
because, know what I’m saying. She got the people that’s going to
come and say they seen the gun, but just like them, I bet ain’t nobody
going to say they knew that that gun was like that. I couldn’t even
really see it. The police when they first took us to jail, they ain’t even
noticed it, you know. He brought it to my attention. He was like
putting me in the car and we went around the corner–when he was
around the corner, he was like, you know what I’m saying, and he’s
like saying upon close look, he was like–but that’s probably their job
to look for that. I wasn’t even–it don’t matter. I'm pleading.

The Court: Other than that, are all the other facts correct?

Lindsay: Yes, sir.

The Court: Did you do what the government says that you
did?

Lindsay: Yes, sir. I’m plea[d]ing. I’m cop[p]ing out.

Lindsay then confirmed that he had discussed the Sentencing Guidelines with

counsel and understood that neither his attorney nor the court knew what the final

sentence would be, but that the Guidelines were only advisory so that the court

could impose a sentence above or below the advisory range. Lindsay pled guilty to

all eight counts of the indictment. The district court found that Lindsay was “alert

5
and intelligent,” understood the nature of the charges against him, and appreciated

the consequences of his guilty plea. The court further found that the government’s

factual proffer was sufficient to support the plea, and that Lindsay’s plea was

“freely and voluntarily and understandably made.” The court accepted the guilty

plea, and Lindsay proceeded to sentencing.

According to the presentence investigation report (“PSI”), the conduct

leading to Count 7 of the indictment was the following. On September 9, 2005,

law enforcement officers responded to a report of “shots fired” at the Woodham

High School in Escambia County, Florida. Jamie Kennedy, who lodged the

complaint, reported to the officers that she had seen three young black males run

down the street being chased by a slimly built black male, and that she heard one

shot fired. As part of the investigation, law enforcement interviewed numerous

students at the school and Kinard Franklin, who stated that he and another

individual accompanied Lindsay over to Woodham High School on the day of the

shooting. Lindsay told Franklin that he was going to take care of someone who

had gotten into an argument with “S.S.” (a female juvenile, aged 15). Franklin said

he did not know that Lindsay was armed until Lindsay pulled out a gun and started

shooting at a group of males. Lindsay then ran after the males shooting at them.

Franklin and the other individual who had accompanied Lindsay then got back into

6
the car and left the scene, returning later to pick up Lindsay. “E.T.B.” (another

female juvenile) reported to law enforcement that she had overheard Lindsay and

“S.S.” discussing the Woodham High School shooting. Lindsay admitted to

“E.T.B.” that he had fired a pistol at D.R.” (a male juvenile) because D.R. had

harassed S.S. earlier that day.

Two days later, on December 11, 2005, Lindsay was arrested at the home of

Alex Burkholter, a male juvenile, aged 16, as he (Lindsay) tried to crawl out of the

window of Burkholter’s bedroom. After Lindsay was arrested, Burkholter directed

law enforcement officials to a shoebox that contained a gun which had been

painted black and had an obliterated serial number. According to the arresting

officer who found the gun, a Lorcin .380 caliber semi-automatic pistol, the gun still

smelled of fresh paint. The PSI stated: “The serial number on the firearm had been

removed. It was noted there were five individual depressions (appear to be drill

marks) on both sides of the handgun where a serial number would normally be

located. The fact that the gun had recently been painted proves that Lindsay knew

about the serial number seeing as he would have had to observe[ ] the drilled out

nature of the numbers in order to paint the gun.” 1

1
The PSI also indicated that Lindsay engaged in the following conduct. On August 29,
2005, Lindsay came uninvited to a birthday party and pointed a gun between S.M.’s (a female
juvenile, aged 16) eyes at a very close distance. On September 1, 2005, after Lindsay had an oral
dispute with Sasha Calbert, with whom he shares a child, and her brother, Quantas Culbert, Lindsay

7
 The PSI assigned a base offense level of 20, pursuant to U.S.S.G. §

2K2.1(a)(4)(A), and recommended the following adjustments: (1) a 2-level

increase, pursuant to U.S.S.G. § 2K2.1(b)(4), because of the involvement of a

firearm with an obliterated serial number; (2) a 4-level increase, pursuant to

U.S.S.G. § 2K2.1(b)(5), because Lindsay used or possessed a firearm in connection

with another felony offense; (3) a 2-level increase, pursuant to U.S.S.G. § 3B1.4,

for using or attempting to use a person less than 18 years old to commit the offense

or avoid detection of the offense; and (4) a 2-level increase, under U.S.S.G. §

3c1.1, for willfully obstructing or impeding justice. Lindsay’s adjusted offense

level was 30.

Lindsay was also given 25 criminal history points for his prior criminal

convictions, which included convictions for (1) battery on a school board member,

(2) trespass (three times), (3) reckless driving, (4) driving without a valid driver’s

license, (5) resisting arrest without violence (three times), (6) indecent exposure,

(7) battery on a detention staff member, (8) giving a false name to a law

enforcement officer, (9) possession of a controlled substance (twice), (10)

fired shots at Quantas as he drove by Lindsay. On September 16, 2005, Edwin Gibbons was having
a birthday party for his daughter. Gibbons heard squealing tires in front of his house and went
outside and asked Lindsay, who had not been invited to the party, to leave. Lindsay then pulled a
handgun from his pants, “circled the action,” and pointed it towards Gibbons, saying, “I'll do as I
want to. I'm 23 years old, and I'll cap you.”

8
possession of drug paraphernalia, (11) driving with a suspended license, and (12)

assault. Lindsay received two additional criminal history points, pursuant to

U.S.S.G. § 4A1.1(e), because he committed the instant offenses less than two years

after he was released from custody. With 27 criminal history points, Lindsay was

assigned a criminal history category VI. The advisory Guidelines imprisonment

range he faced was 168 to 210 months. The PSI recommended that the district

court apply an upward variance from the Guidelines range and sentence Lindsay to

420 months’ imprisonment based on the factors in 18 U.S.C. § 3553(a).

Lindsay filed objections to the PSI, challenging, inter alia, the increase to his

offense level for possessing a firearm with an obliterated serial number. He

asserted that he did not know about the obliteration, and that his “guilty plea to

[knowingly possessing a firearm with an obliterated serial number] would seem to

be questionable as to a factual basis at this juncture.”

At the sentencing hearing, Ronald Williams, a special agent with the Bureau

of Alcohol, Tobacco, Firearms and Explosives, testified about the activities

reported in the PSI. He described his recovery of the Lorcin .380 pistol

Burkholter’s house. When he found the gun, Special Agent Williams noted that

the gun had been freshly painted as it had “the odor of fresh paint.” The

government also presented the testimony of Burkholter, who identified the Lorcin

9
pistol and stated that he had not handled the handgun found in his room, but that

Lindsay had come to his house on several occasions and taken the gun, which

Lindsay stored at Burkholter’s house for a period of two or three months. Officer

James Moretz, of the Escambia County Sheriff’s office, also was present at

Burkholter’s house when Lindsay was arrested and the Lorcin pistol was found.

Officer Moretz testified that upon recovering the firearm when Lindsay was

arrested, he immediately noticed that there were drill marks on both sides of the

handgun where the serial number would normally be, and that the pistol had been

“handpainted, sort of rough.”

After the government’s presentation of evidence, Lindsay renewed his

objection to the enhancement to his offense level for the involvement of a firearm

with an obliterated serial number. The district court examined the Lorcin .380,

which was marked as “Exhibit 3,” and overruled Lindsay’s objection, stating:

“Exhibit 3 demonstrates the most obvious obliteration that I’ve ever witnessed. I

don’t think anyone would pick that gun up without knowing that it’s obliterated

serial numbers. So that objection is overruled.”

After ruling on Lindsay’s other objections to the PSI, and hearing Lindsay’s

statement in mitigation of his sentence, the government’s argument in support of

an upward variance, and Lindsay’s counsel’s argument in support of a sentence

10
within the advisory Guidelines range, the district court adopted the PSI’s

recommendations and imposed a 420-month term of imprisonment comprised of:

120 months’ imprisonment each for Counts 1 to 3, with the terms to run

consecutively; 120 months’ imprisonment as to Count 4, to run concurrently with

the other counts; 12 months’ imprisonment each for Counts 5 and 6, with the terms

to run concurrently and concurrently with the other counts; 60 months’

imprisonment for Count 7, to run concurrently with all other Counts; and 60

months’ imprisonment for Count 8, to run consecutively to Counts 1, 2, and 3. The

district judge then stated:

In making this decision, I have consulted the advisory
sentencing guidelines and calculated the applicable advisory range of
168 to 210 months. I then made an effort to determine if pursuant to
the guideline policy statements that any sentence outside of the
advisory range were clearly appropriate. In this case, I do find that the
guidelines provide limited grounds for an upward departure, which
includes multiple acts of obstructive conduct under [U.S.S.G. §
5K2.0], factors not adequately taken into account by the guidelines,
second, the use of more than one minor in this criminal conduct,
which is pursuant to [U.S.S.G. § 3B1.4], and the inadequacy of your
criminal history category pursuant to [U.S.S.G. § 4A1.3].

However, even with a guided departure under the guidelines,
but based upon the above factors, I find this sentence would still not
be sufficient in your case. And I then considered all of the factors in
[18 U.S.C. § 3553(a)].

The district court then discussed and applied to the facts of the case the §

3553(a) factors and stated that Lindsay’s extensive history of criminal acts, which

11
gave him more than twice as many points as were necessary to be placed in

criminal history category VI, indicated that he would continue to be involved in

violent acts in the future. The court highlighted that such a criminal history was

particularly noteworthy because Lindsay was only 24 years old, and that the

criminal history and obstructive conduct demonstrated that Lindsay had little

respect for the law. The court found that there was no unwarranted sentencing

disparity resulting from the term imposed here because “any defendant appearing

before this court with the type of criminal record and type of offenses and

convictions that you have would be facing a similar sentence based upon the

multiple aggravating factors I’ve just discussed.” Finally, the court noted that it

considered the advisory Guidelines range and found that it was not “by any means .

. . sufficient in [this] case.” This appeal followed.

II.

First, Lindsay contends that the district court erred by accepting his guilty

plea because there was an insufficient factual basis for the plea to be knowing and

voluntary, in violation of Rule 11(b)(3) and the Due Process Clause of the Fifth

Amendment.2 Lindsay asserts that at the plea colloquy, he denied that he knew the

2
The government suggests that Lindsay waived his ability to bring this appeal by entering
an unconditional guilty plea. We disagree. In the instant appeal, Lindsay asserts that his guilty plea
was not knowing and voluntary because he was not informed of the elements of one of the crimes
to which he pled. While it is true that an unconditional guilty plea constitutes a waiver of all non-

12
Lorcin .380 caliber handgun was obliterated and the government failed to establish

a sufficient factual basis as to the scienter element for the § 922(k) crime with

which he was charged. Thus, he says, his guilty plea to that crime was not

knowing and voluntary, as required by Rule 11 and due process.

The applicable standards of review are well-settled. Generally, the district

court’s “factual finding that the requirements of [Fed. R. Crim. P.] 11 were

satisfied when it accepted the defendants’ pleas is subject to the clearly erroneous

standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir.

1990). Lindsay, however, did not raise his due process or Rule 11 arguments in

the district court, either by objecting or by moving to withdraw his guilty plea.

Constitutional objections and alleged violations of Rule 11 that were not raised

before the district court are reviewed only for plain error. See United States v.

Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005) (per curiam). To establish

plain error, a defendant must show (1) error, (2) that is plain, (3) that affects

substantial rights, and (4) that seriously affects the fairness, integrity, or public

jurisdictional arguments, it is well-settled that for a plea to effect such a waiver, the plea itself must
be knowing and voluntary. See Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992) (“A
defendant who enters a plea of guilty waives all non-jurisdictional challenges to the constitutionality
of the conviction, and only an attack on the voluntary and knowing nature of the plea can be
sustained.”); United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986) (holding that a
knowing and voluntary guilty plea waives all non-jurisdictional defects in the proceedings against
a defendant); United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984) (same).

13
reputation of judicial proceedings. See United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir.), cert. denied, 545 U.S. 1127 (2005).

The Supreme Court has held that “a defendant who seeks reversal of his

conviction after a guilty plea, on the ground that the district court committed plain

error under Rule 11, must show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004). “A defendant must thus satisfy the judgment of the reviewing court,

informed by the entire record, that the probability of a different result is sufficient

to undermine confidence in the outcome of the proceeding.” Id. This requirement

mirrors the third prong of the plain error test, which “requires that an error have

affected substantial rights, which almost always requires that the error must have

affected the outcome of the district court proceedings.” Rodriguez, 398 F.3d at

1299. In reviewing the entire record to gauge the effect of an error on a

defendant’s substantial rights, the Supreme Court recognized the obvious: when

the record made for a guilty plea and sentencing reveals strong evidence and no

apparent defenses, “one can fairly ask a defendant seeking to withdraw his plea

what he might ever have thought he could gain by going to trial.” Dominguez

Benitez, 542 U.S. at 83.

14
 To satisfy the requirements of due process, a guilty plea must be entered into

knowingly and voluntarily. Moriarty, 429 F.3d at 1019. To determine that a guilty

plea is knowing and voluntary, the district court must address the three core

concerns of Rule 11 at the plea colloquy, which are that the “defendant (1) enters

his guilty plea free from coercion, (2) understands the nature of the charges, and

(3) understands the consequences of his plea.” Id.; see United States v. Frye, 402

F.3d 1123, 1127 (11th Cir. 2005); see also Fed. R. Crim. P. 11(b)(1)(G) (requiring

the district court to determine that the defendant understands “the nature of each

charge to which the defendant is pleading”). In this appeal, Lindsay argues the

district court did not comply with the second core concern of Rule 11 because the

court did not apprise him of, and the government did not establish a factual basis to

support a finding on, one of the elements of the § 922(k) offense to which he pled.

The Supreme Court has held that a guilty plea is not voluntary if the

defendant has such an incomplete understanding of the charge that his plea cannot

stand as an intelligent admission of guilt. Marshall v. Lonberger, 459 U.S. 422,

431 (1983). We review each case individually to ensure that the defendant

understood the nature of the charges because the Rule 11 inquiry will necessarily

vary from case to case. United States v. James, 210 F.3d 1342, 1344 (11th Cir.

2000). “In considering whether a Rule 11 error occurred or prejudiced a

15
defendant, we may consider the whole record, not just the plea colloquy.”

Moriarty, 429 F.3d at 1020 n.4; see also United States v. Monroe, 353 F.3d 1346,

1350 (11th Cir. 2003) (“[I]n the Rule 11 context, the reviewing court may consult

the whole record when considering the effect of any error on substantial rights.”

(quotation omitted)).

After reviewing the record from the plea hearing as a whole, we will affirm

the district court, “if the record provides a basis for the court’s finding that the

defendant understood what he was admitting and that what he was admitting

constituted the crime charged.” Lopez, 907 F.2d at 1099. The Supreme Court has

stated that in determining whether there is a factual basis for a plea under Rule 11,

“[t]he judge must determine that the conduct which the defendant admits

constitutes the offense charged in the indictment or information or an offense

included therein to which the defendant has pleaded guilty.” McCarthy v. United

States, 394 U.S. 459, 467 (1969). The standard for evaluating challenges to the

factual basis for a guilty plea is whether the district court was presented with

evidence from which it could reasonably find that the defendant was guilty. United

States v. Owen, 858 F.2d 1514, 1517 (11th Cir. 1988) (per curiam). In advising a

defendant of the nature of the charges against him, there is no requirement in Rule

16
11(c) “that a district court must list each element of the offense seriatim.” United

States v. Wiggins, 131 F.3d 1440, 1442-42 (11th Cir. 1997).

Lindsay asserts that the district court failed to inform him that the

government would have to prove that he knew of the obliteration to the Lorcin

handgun, and that this omission constituted a violation of the second core concern

of Rule 11. On this record, we discern no error that was plain and that affected

Lindsay’s substantial rights.

Under 18 U.S.C. § 922(k), it is illegal to knowingly possess any firearm that

has had the serial number obliterated. In addition, 18 U.S.C. § 924(a)(1)(B) states

that anyone who “knowingly violates [§ 922(k)]” is subject to imprisonment.

While we have not directly addressed the issue, other circuits have consistently

held that the defendant must know of the obliteration to be convicted under

§ 922(k). See United States v. Thornton, 463 F.3d 693, 699 (7th Cir. 2006);

United States v. Sullivan, 455 F.3d 248, 261 (4th Cir. 2006); United States v.

Haywood, 363 F.3d 200, 206 (3d Cir. 2004) (citing cases from the 1st, 2d, 5th, and

D.C. Circuits). For purposes of evaluating the district court’s compliance with

Rule 11 as to the § 922(k) charge in this case, we will assume that knowledge of

the obliteration is an element of the crime.

17
 At the plea colloquy, the government proffered that it would present the

testimony of “a number of witnesses” concerning Lindsay’s possession of the

firearm on numerous occasions, as well as his conduct in storing it and retrieving it

from Alex Burkholter’s house on other occasions. Moreover, based on Lindsay’s

sentencing objection to the enhancement of his offense level for use of an

obliterated weapon, the record contains the testimony of many of the government’s

witnesses, including Alex Burkholter, who described Lindsay’s possession of the

Lorcin .380 handgun. Again, in reviewing an alleged Rule 11 error, “we may

consider the whole record, not just the plea colloquy.” Moriarty, 429 F.3d at 1020

n.4; Monroe, 353 F.3d at 1350.3

At the plea colloquy, Lindsay’s counsel stated that Lindsay had indicated he

“didn’t really know that the obliterated serial number was there.” Counsel said that

he had informed Lindsay that it could be “real knowledge that he knew” or “he

should have known” of the obliteration. In response, the district court confirmed

3
In explaining which parts of the record may be included in a court’s review of a Rule 11
violation, the Supreme Court, in United States v. Vonn, 535 U.S. 55 (2002), stated that:

The Advisory Committee intended the effect of error to be assessed on an existing
record, no question, but it did not mean to limit that record strictly to the plea
proceedings: the enquiry “‘must be resolved solely on the basis of the Rule 11
transcript’ and the other portions (e.g., sentencing hearing) of the limited record
made in such cases.” Advisory Committee's Notes 1569 (quoting United States v.
Coronado, 554 F.2d 166, 170, n. 5 (C.A. 5 1977)).

535 U.S. at 74 (emphasis added).

18
with Lindsay that he admitted to possession of the weapon, which the district court

later described, at the sentencing hearing, as having “the most obvious obliteration

that I’ve ever witnesses.” Moreover, at the sentencing hearing, the government

presented the testimony of Special Agent Williams and Officer Moretz, both of

whom described the fresh coat of paint that they discerned on the firearm when it

was retrieved from Alex Burkholter’s bedroom, where Lindsay was arrested.

The Fourth Circuit is one of our sister courts to have addressed the elements

of a § 922(k) offense. In discussing the knowledge requirement, the court said:

“The defendant must know of the alteration. Knowledge of defacement of the

serial number may be inferred where the defendant has possessed the gun under

conditions under which an ordinary man would have inspected the pistol and

discovered the absence of a serial number.” Sullivan, 455 F.3d at 261 (citing

United States v. Haywood, 363 F.3d 200, 206 (3d Cir. 2003), and United States v.

Moore, 54 F.3d 92, 101 (2d Cir. 1995)). Although Sullivan involved a defendant’s

challenge to the sufficiency of the evidence to support a jury verdict, and thus the

appeal presented a different procedural context and involved different standards of

review, the Fourth Circuit’s holding that the jury reasonably could have inferred

knowledge of the obliteration, where the defendant regularly carried and possessed

the obliterated weapon, is instructive here. See also United States v. Thorton, 463

19
F.3d 693, 699 (7th Cir. 2006) (holding that circumstantial evidence of defendant’s

control over a firearm with an obliterated serial number could support the jury’s

finding that the defendant knew the serial number had been obliterated, “given that

one need only look at the gun to attain that knowledge”).

From our review of the entire record, including the plea colloquy, the PSI,

and the sentencing transcript, we cannot say that Lindsay has satisfied his burden

on the first prong of the plain-error test -- to establish error relating to the factual

basis for his plea. On the record before us, we are satisfied that, like the factfinder

in Sullivan (and Thornton), the district court was presented with evidence from

which it could reasonably find that the defendant was guilty. See Owen, 858 F.2d

at 1517 (standard for evaluating challenges to the factual basis for a guilty plea is

whether the district court was presented with evidence from which it could

reasonably find that the defendant was guilty). Accordingly, we discern no error,

plain or otherwise, based on Rule 11 or due process.4

4
Moreover, even if we were to find error that was plain, Lindsay’s appeal would fail on
the third prong of the test for plain error. He has not contended, much less offered evidence
showing, that, but for the court’s failure to instruct him explicitly on the knowledge element of a §
922(k) offense, he would not have pled guilty. See Dominguez Benitez, 124 S. Ct. at 2340. The
evidence against Lindsay was strong, and it is unclear what benefit he could possibly have received
by withdrawing his plea and proceeding to trial. “When the record made for a guilty plea and
sentencing reveals [strong evidence of guilt] . . . one can fairly ask a defendant seeking to withdraw
his plea what he might ever have thought he could gain by going to trial.” Id.

20
 III.

Next, Lindsay argues the district court erred by imposing an upward

departure, pursuant to U.S.S.G. § 4A1.3, based on the inadequacy of his criminal

history. The government responds that the district court applied a variance, rather

than an upward departure, because the court rested its determination on the 18

U.S.C. § 3553(a) factors and not § 4A1.3 of the Guidelines. In determining

whether a decision to sentence a defendant above the Guidelines range is a

variance or a departure, we have considered two factors: (1) whether the

sentencing court cited to a specific departure provision in the guidelines, and (2)

whether the district court noted the inadequacy of the guidelines range. See United

States v. Eldick, 443 F.3d 783, 788 & n. 2 (11th Cir.), cert. denied, 127 S. Ct. 251

(2006).

After Eldick, we have expanded on the distinction between an upward

departure and a variance. See United States v. Irizarry, 458 F.3d 1208 (11th Cir.

2006), pet. for cert. filed, (U.S. Oct. 26, 2006) (No. 06-7517). In Irizarry, the

district court imposed a statutory maximum sentence of 60 months’ imprisonment

after it had calculated a Guidelines range of 41 to 51 months. Id. at 1210. We

determined that the higher-than-Guidelines sentence was a variance, not an upward

departure, noting the following: (1) the district court considered the adequacy of its

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correctly-calculated advisory guidelines range “in light of the § 3553(a) factors and

the evidence presented at the sentencing hearing,” and (2) it was clear that the

district court was exercising “its post-Booker discretion to impose a reasonable

sentence outside the sentencing guidelines range,” because the district court had

concluded that a sentence within the range was inadequate to address one of the

specific § 3553(a) factors, to protect the public. Id. at 1211-12.

Here, just like in Eldick and Irizarry, the district court’s decision to impose a

higher-than-Guidelines sentence was based on the § 3553(a) factors, as stated by

the court during the sentencing hearing and recommended by the PSI, which the

district court adopted. The district court stated that the advisory Guidelines range

was 168 to 210 months’ imprisonment and noted, on numerous occasions, the

inadequacy of the range, in light of Lindsay’s recidivism, the need for deterrence

and protection of the public, the violent nature of the firearms offenses, and the

involvement of numerous juveniles in the commission of the offenses. In short,

because the district court did not reference a Guideline as support for the higher

sentence, but repeatedly discussed facts pertaining to the § 3553(a) factors, we

readily conclude that the sentence was a variance, and not an upward departure.

IV.

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 Finally, Lindsay contends that his sentence was not reasonable within the

meaning of United States v. Booker, 543 U.S. 220 (2005). After Booker, we

review the defendant’s ultimate sentence for reasonableness. United States v.

Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). The Supreme Court recently

elaborated on reasonableness review, noting that “appellate ‘reasonableness’

review merely asks whether the trial court abused its discretion.” Rita v. United

States, --- S. Ct. ---, 2007 WL 1772146, at *9 (Jun. 21, 2007). “[T]he party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both that record and the factors in § 3553(a).” United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A district court is not

required to state “that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). Moreover, we have stated that “there is a range of

reasonable sentences from which the district court may choose . . .” Talley, 431

F.3d at 788.

Lindsay’s total sentence of twice the maximum applicable guidelines range

without any departures is clearly severe, but on this record we cannot conclude it

was unreasonable, or an abuse of the district court’s discretion under Booker.

Rather, the district court gave a detailed discussion of its consideration of the

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§ 3553(a) factors when it sentenced Lindsay. The court considered, inter alia, the

severity of Lindsay’s crime, the victims and the number of innocent people put at

risk by his crimes, his past criminal conduct, and the obstructive conduct Lindsay

engaged in after he was arrested.5 The district court specifically noted that it could

have relief on some of these facts to depart above the otherwise applicable

guidelines range but, instead, chose to exercise its discretion to impose a upward

variance based on the § 3553(a) factors because the court did not believe that a

Guideline departure sentence would provide sufficient punishment.

So long as the resulting sentence reflects consideration of the § 3553(a)

factors and is reasonable, it is within the district court’s discretion to impose the

sentence. See Talley, 431 F.3d at 788. Moreover, in light of the extreme nature of

Lindsay’s current crimes, his extensive criminal history, and his numerous

attempts to obstruct justice while he was incarcerated, the total sentence imposed

5
According to the PSI, while he was in local custody at the Escambia County Jail and
prior to his federal indictment, Lindsay made several phone calls to potential witnesses about their
testimony at his trial. These jail-house phone calls were recorded by the authorities. Lindsay told
one witness: “don’t talk to the feds, don’t flip on me when I go to trial.” In other phone calls, he
discussed bribing potential witnesses, including Quantas Culbert, at whom Lindsay fired shots on
September 1, 2005, and Edwin Gibbons, at whom Lindsay brandished a gun on September 15, 2005
and stated, “I'll do as I want to. I'm 23 years old, and I'll cap you.” In yet another conversation,
Lindsay said he needed “to have somebody ‘F’ Alex [Burkholter] up.” Most of the witnesses
involved were juveniles, and Lindsay’s phone privileges eventually were revoked, after the
witnesses’ parents contacted authorities with their concerns for their children’s safety. Even after
his phone privileges were cancelled, Lindsay continued to contact the potential witnesses, either by
having other inmates place “three-way” phone calls or by using a contraband cell phone in his cell
to text-message and call witnesses.

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by the district court was not outside of the “range of reasonable sentences from

which the district court may choose.” Id. Therefore, we find that Lindsay has

failed to establish that his total sentence is unreasonable under Booker. The

Sentencing Guidelines advisory range was calculated correctly, and the district

court expressly considered that range and the § 3553(a) factors in imposing

sentence.

AFFIRMED.

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