[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 28, 2007
No. 07-11845 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00064-CR-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRES BLACKWELL,
a.k.a Demetrius Blackwell,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 28, 2007)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Demetres Blackwell appeals his eighteen-month sentence for failing to abide
by the terms of his supervised release, a violation of 18 U.S.C. § 3583(e)(3).
Blackwell violated the terms of his supervised release by: (1) testing positive for
cocaine; (2) failing to participate in a mandated drug program; (3) failing to
document his attendance at Alcoholics Anonymous/Narcotics Anonymous
meetings; (4) twice failing to meet with his probation officer; and (5) missing four
drug testing appointments.
The district court determined at Blackwell’s sentence hearing that he had an
adjusted offense level of twenty and a criminal history category of three. Factoring
these together, the court calculated Blackwell’s advisory sentencing guideline
range to be between five and eleven months imprisonment. However, finding that
the guideline range did not sufficiently account for, among other things, the
defendant’s criminal history, the district court varied Blackwell’s sentence upward
to eighteen months imprisonment using the 18 U.S.C. § 3553(a) factors. Blackwell
contends on appeal that: (1) the district court erred by impermissibly double
counting his criminal history to arrive at the eighteen month sentence; and (2) that
his ultimate sentence was unreasonable.
We normally review de novo a double counting claim. United States v.
Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). However, because Blackwell did
not object to any double counting at his sentence hearing, we review only for plain
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error. Id.
Double counting occurs “when one part of the Guidelines is applied to
increase a defendant’s punishment on account of a kind of harm that has already
been fully accounted for by application of another part of the Guidelines.” Id.
(quoting United States v. Rodriguez-Matos, 188 F.3d 1300, 1309 (11th Cir. 1999)).
In rare circumstances, it may be an error for a district court to double count. See
United States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir. 2005) (“a defendant
asserting a double counting claim has a tough task”).
Blackwell contends that the district court erred in applying an eighteen
month sentence because it engaged in double counting when it considered his prior
criminal record in determining his sentencing guideline range and again under §
3553(a) when imposing the ultimate sentence. If we were to accept this argument,
no district court could consider a defendant’s criminal history at the § 3553(a)
stage because criminal history is always considered in arriving at the advisory
guidelines range. This would cripple the ability of district courts to fashion
reasonable sentences after considering, among other things, “the history and
characteristics of the defendant,” which they are required to do. 18 U.S.C. §
3553(a)(1); see United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 757
(2005).
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We have explicitly rejected a similar argument by a defendant in United
States v. Amedeo, 487 F.3d 823 (11th Cir. 2007). There, the defendant’s sentence
was enhanced pursuant to U.S.S.G. § 3B1.3 because the defendant, an attorney,
abused the trust of his client. Id. at 833. The district court considered the same
breach of the attorney-client relationship again to vary the defendant’s sentence
upward using the § 3553(a) factors. Id. at 833–34. We affirmed, holding that
“based on the extraordinary circumstances of this case, it was reasonable for the
district court to rely on certain aspects of [the defendant]’s conduct, particularly his
abuse of the attorney-client relationship, that it had already considered in imposing
an enhancement.” Id.
In addition, we have affirmed a number of sentences in which the district
court determined the defendant’s criminal history category and then explicitly
considered that same criminal behavior in reaching the defendant’s ultimate
sentence under the § 3553(a) factors. See e.g., United States v. Dorman, 488 F.3d
936, 944 (11th Cir. 2007) (affirming the defendant’s 300 month sentence as
reasonable where the district court considered the defendant’s past crimes when
increasing the defendant’s criminal history category from three to six based on the
defendant’s status as a career offender, again when applying a career offender
enhancement for an adjusted offense level of thirty-four, and a third time when
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considering, under § 3553(a), the fact that the defendant “continuously committed
criminal activity each time he was released from prison”); United States v.
Ortiz-Delgado, 451 F.3d 752, 758–59 (11th Cir. 2006) (affirming the defendant’s
sixty month sentence as reasonable when the district court considered the
defendant’s criminal history in determining the defendant had a criminal history
category of four, again when enhancing his offense level to twenty-one because he
had been previously deported after a crime of violence, and a third time, under §
3553(a), because of his history of sex crimes against children); United States v.
Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (affirming the defendant’s 24
month sentence for violating his supervised release when the “district court
adequately considered the § 3553(a) factors in arriving at [his] sentence, including
his criminal history and his threat to the public”). We found no double counting
error in any of these cases.
Accordingly, we conclude that the district court did not err in enhancing
Blackwell’s sentence based on his criminal history and in varying the sentence
upward under § 3553(a) based on that same criminal history. Therefore, there was
no plain error.
Blackwell also contends that the district court’s ultimate sentence of
eighteen months was unreasonable because he had never been convicted of a crime
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involving the use of violence. When “conducting our reasonableness review,
which is highly deferential, we do not apply the reasonableness standard to each
individual decision made during the sentencing process; instead, we review only
the final sentence for reasonableness, in light of the § 3553(a) factors.” Dorman,
488 F.3d at 938.
A sentence will be unreasonable only if it “fails to achieve the purposes of
sentencing as stated in [18 U.S.C.] section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). Here, the sentence imposed was outside the
guidelines range, so the sentence is not entitled to an expectation of
reasonableness. See 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.”). However, simply exceeding the guideline range does not make a sentence
unreasonable. See e.g., United States v. Valnor, 451 F.3d 744, 752 (11th Cir.
2006) (affirming a sentence in excess of the guidelines range).
We conclude that Blackwell’s sentence was reasonable. Section 3553(a)
requires consideration of “the nature and circumstances of the offense and the
history and characteristics of the defendant,” and “the need for the sentence
imposed . . . to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense.” Here, as the district court
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said, Blackwell showed a “total failure to cooperate in [his] supervised release”
and to comply with the law. He continued to use cocaine, tried to hide his
continued drug abuse by failing to show up for drug testing appointments, refused
to participate in a drug and alcohol abuse program, and missed meetings with his
probation officer.
AFFIRMED.
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