[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 27, 2007
No. 06-13810 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-60220-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD CAMPBELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 27, 2007)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
After resentencing, Gerald Campbell appeals the reasonableness of his 324-
month sentence for conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and carrying and possessing a
firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A).
After review, we affirm.
I. BACKGROUND
Campbell’s charges stemmed from a government sting in which Campbell
and two codefendants, Maurice Hicks and Adrian Daniels, planned to rob a cocaine
stash house containing fifteen kilograms of cocaine. Daniels pled guilty and
cooperated with the government. Campbell and Hicks pled not guilty and went to
trial.
Following trial, a jury convicted Campbell and Hicks on both counts. The
jury specially found that the drug conspiracy involved five or more kilograms of
cocaine. Hicks was sentenced to 228 months’ imprisonment.
Prior to Campbell’s sentencing, his Presentence Investigation Report (“PSI”)
found, among other things, that Campbell qualified as a career offender under the
sentencing guidelines. The statutory maximum sentence for Campbell’s drug
conspiracy offense was life imprisonment, 21 U.S.C. § 841(b)(1)(A), and the PSI
assigned Campbell a total offense level as a career offender of 37, pursuant to
U.S.S.G. § 4B1.1(b)(A). The PSI listed seventeen adult convictions. However,
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because Campbell was a career offender, the sentencing guidelines set and the PSI
assigned, Campbell’s criminal history category at VI regardless of his criminal
history points. See U.S.S.G. § 4B1.1(b).
The PSI concluded that, as to the drug conspiracy offense, Campbell’s
statutory mandatory minimum was twenty years’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(A). As to the firearm offense, the PSI concluded that Campbell’s
statutory mandatory minimum was five years’ imprisonment, and that the sentence
must run consecutive to any other sentence. See 18 U.S.C. § 924(c)(1)(A)(i).
Ultimately, the PSI calculated that Campbell’s guidelines range by adding the
mandatory minimum consecutive penalty of 60 months for the firearm count to the
applicable 360 months to life imprisonment range for the drug conspiracy count,
which yielded a total of 420 months to life. See U.S.S.G. § 4B1.1(c)(2)(A).
At the initial sentencing, Campbell objected to the PSI, asserting the “huge
disparity” between his guidelines range and co-defendant Hicks’s 228-month
sentence. The district court overruled Campbell’s objection and adopted the PSI’s
guidelines calculations. The district court then imposed a 360-month sentence for
Campbell’s drug conspiracy conviction, followed by a consecutive 60-month
sentence on Campbell’s firearm conviction, for a total of 420 months’
imprisonment, imposed under a mandatory guidelines regime.
3
Campbell appealed to this Court, which vacated Campbell’s sentence and
directed the district court to resentence Campbell under advisory guidelines as
required by United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). See
United States v. Hicks, 174 F. App’x 505, 506-07 (11th Cir. 2006) (unpublished).
However, this Court affirmed Campbell’s career offender status and the district
court’s correct calculation of Campbell’s guidelines range and vacated only for
resentencing consistent with Booker.1
At resentencing, the government asked the district court to reimpose a 420-
month sentence. Campbell raised several arguments in mitigation, including: (1)
that Campbell’s offense, though serious, arose out of a government sting operation
in which the government was in control and no one would actually be harmed, and
(2) that many of Campbell’s prior convictions were petty or a result of his drug
problem. However, Campbell argued that the most important factor was the
disparity between his advisory guidelines range and his co-defendant Hicks’s 228-
month sentence. According to Campbell, the only difference between him and
Hicks was Campbell’s career offender status and that Hicks had been the organizer
of the drug conspiracy. Thus, Campbell maintained that he should receive a
1
Campbell’s instant federal drug conspiracy conviction and his two prior Florida felony
convictions for delivery of cocaine qualified Campbell for career offender status within the meaning
of U.S.S.G. § 4B1.2(b). See Hicks, 174 F. App’x at 506.
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sentence similar to Hicks’s 228-month sentence.
The district court stated that it had considered the 18 U.S.C. § 3553(a)
sentencing factors and noted that a “lengthy prison sentence [was appropriate] in
view of the seriousness of the offense and [Campbell’s] criminal history.”
However, the district court also concluded that a sentence below the advisory
guidelines range was appropriate, noting that such a sentence would: (1) still
reflect the seriousness of the offense, promote respect for the law, provide just
punishment and adequately deter criminal conduct; (2) protect the public from
future crimes by Campbell, noting especially Campbell’s age upon release; and (3)
provide time for education and vocational training. The district court also stated
that a sentence below the advisory guidelines range would be “more proportional
to the sentence received by [co-defendant Hicks], who was equally if not more
culpab[le],” and yet still would be “sufficiently longer” than Hicks’s sentence to
account for Campbell’s “more serious criminal history [and] career offender
status.” Accordingly, the district court imposed a 264-month sentence on the drug
conspiracy conviction and a consecutive 60-month sentence on the firearm
conviction, for a total sentence of 324 months’ imprisonment.
Campbell filed this timely appeal.
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II. DISCUSSION
On appeal, Campbell argues that his 324-month sentence is unreasonable
due to the disparity between it and codefendant Hicks’s 228-month sentence.
Specifically, Campbell argues that his sentence should be closer to Hicks’s
sentence because Hicks was convicted under the same charges, was the organizer
of the planned robbery, and also had a substantial criminal history.
After Booker, a district court, in determining a reasonable sentence, must
correctly calculate the advisory guidelines range and then consider the factors set
forth in 18 U.S.C. § 3553(a).2 See United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005).3 We review a defendant’s ultimate sentence for reasonableness in light
of the § 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1246 (11th
Cir. 2005). “[T]he party challenging the sentence bears the initial burden of
establishing that the district court considered an impermissible factor at
sentencing.” United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006).
2
The § 3553(a) factors include: the nature and circumstances of the offense and the history
and characteristics of the defendant; the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the offense; the need to
afford adequate deterrence to criminal conduct; the need to protect the public from further crimes
of the defendant; the need to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner; and “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found guilty
of similar conduct.” 18 U.S.C. § 3553(a)(1)-(2), (6).
3
In this appeal, Campbell does not challenge the district court’s guidelines calculations.
Indeed, in the first appeal, this Court already held that the district court’s guidelines calculations
were correct. See Hicks, 174 F. App’x at 507.
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After review, nothing in the record convinces us that Campbell’s 324-month
sentence is unreasonable. First, Campbell’s sentence is well below the statutory
maximum of life imprisonment, 96 months below the bottom end of the advisory
guidelines range and only 24 months above the total 300-month mandatory
minimum sentences (240 months followed by 60 months). Second, the district
court carefully considered the § 3553(a) sentencing factors, noting the need for the
punishment to reflect the seriousness of the offense and the need for deterrence and
protection of the public, among others. Third, the district court considered
Campbell’s proportionality argument. In determining that Campbell’s sentence
needed to be proportionate with co-defendant Hicks’s sentence, yet still reflect
Campbell’s distinct career offender status and extensive criminal history, the
district determined that a sentence of 324-month sentence was appropriate. On the
record before us, Campbell has not shown that his 324-month sentence is
unreasonable.
AFFIRMED.
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