[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 24, 2008
No. 07-12033 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20765-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR FARRINGTON, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 24, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Arthur Farrington, III appeals his convictions and 360-month sentence for
possession of a firearm by a convicted felon, drug-related offenses, and possession
of a firearm during a drug trafficking crime. Farrington argues that his convictions
must be vacated because the district court erroneously entered a judgment
inconsistent with the indictment. Counts Two through Four charged him with
trafficking a “detectable amount” of cocaine base, whereas the judgment of
conviction punished Farrington for trafficking in “five grams or more” of cocaine
base. Additionally, Count Five charged Farrington with trafficking a detectable
amount of marijuana; however, the district court entered judgment for “trafficking
in five grams or more of cocaine base.” Farrington also argues that the district
court misunderstood the applicable statutory maximums for Counts Two and
Three, and this misapprehension caused the district court to impose an
unreasonable and excessive sentence. We address each of Farrington’s arguments
in turn. Because the district court erroneously entered a judgment inconsistent
with the indictment, we VACATE and REMAND IN PART. However, since the
district court did not plainly err in sentencing Farrington, we AFFIRM Farrington’s
sentences.
I. BACKGROUND
Three Miami-Dade, Florida police officers observed Farrington sitting in a
parked car with an expired license plate. One of the police officers knocked on the
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driver’s side window of the car, and as Farrington exited the car, another officer
saw a firearm on the floorboard of the car. Farrington was handcuffed and the
officers searched him and the car. The police recovered several bags containing
marijuana, powder cocaine, and crack cocaine. A federal grand jury indicted
Farrington for (1) possessing a firearm as a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(e), (2) conspiracy to possess with intent to distribute a
controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846, involving
detectable amounts of cocaine base, cocaine, and marijuana in violation of
§ 841(b)(1)(C) and § 841(b)(1)(D), (3) possession with intent to distribute a
detectable amount of cocaine base in violation of § 841(a)(1) and § 841(b)(1)(C),
(4) possession with intent to distribute a detectable amount of cocaine in violation
of § 841(a)(1) and § 841(b)(1)(C), (5) possession with intent to distribute a
detectable amount of marijuana in violation of § 841(a)(1) and § 841(b)(1)(D), and
(6) possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A).
Farrington pleaded not guilty, and the case proceeded to trial. The parties
stipulated that the substance seized by the police tested positive as “15.8 grams of a
mixture . . . containing a detectable amount of cocaine base, . . . 14 grams of a
mixture of a substance containing a detectable amount of cocaine . . . [a]nd . . .
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over 36 grams of a substance containing a detectable amount of marijuana.” R8 at
204-05. The district court charged the jury on the six counts of the indictment.
The instructions on Count Three noted that the parties stipulated to 15.8 grams of
cocaine base. Id. at 381. The verdict form requested specific findings regarding
drug quantities with respect to Counts Two and Three. Farrington did not object to
the court’s addition of drug quantity to the verdict form. The jury found
Farrington guilty on all counts. As to Counts Two and Three, the jury determined
that the offenses involved five grams or more of cocaine base.
In Farrington’s presentence investigation report (“PSI”), the probation
officer noted that, as to Count One, the mandatory minimum was 15 years and the
maximum sentence was life imprisonment under § 922(g)(1) and § 924(e). The
PSI incorrectly listed Counts Two and Three as conspiracy to possess with intent to
distribute five grams or more of cocaine and cocaine base, respectively, instead of
possession with intent to distribute a “detectable amount” of cocaine and cocaine
base, as charged in the indictment. R1-6 at 2-3. Based upon the drug quantities
found by the jury, the PSI listed the terms of imprisonment as to Counts Two and
Three as 5 to 40 years under § 841(b)(1)(B). As to Count Four, the maximum term
of imprisonment was 20 years under § 841(b)(1)(C). As to Count Five, the
maximum term of imprisonment was five years under § 841(b)(1)(D). The
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minimum term of imprisonment for Count Six was five years, consecutive to the
other terms, under § 924(c)(1)(A)(i).
The probation officer calculated a total offense level of 34 and a criminal
history category of VI, which yielded a Guidelines sentencing range of 262 to 327
months. The PSI listed Farrington’s prior adult criminal convictions, which
include (1) armed robbery with a firearm or deadly weapon, armed burglary with
an assault, unlawfully discharging a firearm in public, and possession of a firearm
by a minor; (2) armed robbery, possession of a firearm by a convicted felon, and
carrying a concealed firearm; and (3) carrying a concealed firearm and possession
of a firearm by a convicted felon. Based on his prior convictions, the probation
officer determined Farrington was an armed career criminal and adjusted the range
to 360 months to life imprisonment under U.S.S.G. §§ 4B1.1(c)(2)(B) and
4B1.1(c)(3) (2006). Pursuant to U.S.S.G. § 5G1.2(e), the probation officer
apportioned the sentence to the extent possible, providing a range for Count One of
300 months, a range of 240 months for Counts Two through Four, concurrent to
Count One, a range of 60 months for Count Five, concurrent to Counts One
through Four, and a range of 60 months for Count Six, consecutive to Counts One
through Five. Farrington made no objections to the PSI.
At sentencing, the government requested that the district court impose a
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sentence within the Guidelines range, while Farrington requested that the district
court impose a sentence of 240 months of imprisonment and he raised the issue of
substantial assistance. Farrington’s counsel also recited a letter written on
Farrington’s behalf by Farrington’s mother. After considering the statements of
the parties, the PSI, and the advisory Guidelines, the district court imposed a
sentence of 360 months based upon Farrington’s criminal history, the nature of the
offenses, and the need to protect the public. The district court stated that a
sentence at “the low end” of the Guidelines’ range was an adequate punishment.
R10 at 9. The district court then apportioned the sentence as follows: 300 months
as to Counts One, Two, and Three; 240 months as to Count Four; 60 months as to
Count Five, all of which shall run concurrently; and 60 months as to Count Six, to
run consecutive to the sentences as to Counts One through Five. Farrington did not
object to the district court’s sentence or the PSI calculations, but he renewed his
“previous arguments and . . . requests” to the court. Id. at 11. Thereafter, the
district court entered its judgment of conviction, finding Farrington guilty on
Counts One through Six of the indictment. The judgment listed Count One as
possession of a firearm by a convicted felon, Count Two as conspiracy to possess
with the intent to distribute five grams or more of cocaine base, Counts Three
through Five as possession with the intent to distribute five grams or more of
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cocaine base, and Count Six as possession of a firearm during a drug trafficking
crime. This appeal followed.
II. DISCUSSION
1. The District Court’s Judgment Contains Clerical Errors
We may sua sponte correct clerical errors in a judgment and remand with
instructions that the district court correct the errors. See United States v. Anderton,
136 F.3d 747, 751 (11th Cir. 1998) (per curiam). “It is a fundamental error for a
court to enter a judgment of conviction against a defendant who has not been
charged, tried or found guilty of the crime recited in the judgment.” United States
v. Diaz, 190 F.3d 1247, 1252 (11th Cir. 1999). Where the erroneous entry of
judgment is a clerical error and the correction of the judgment would not prejudice
the defendant, it is appropriate to vacate the judgment and remand to the district
court for an entry of judgment in accordance with the charge and the jury verdict.
Id.
Upon review of the record and the parties’ briefs, we conclude that the
judgment of conviction incorrectly stated Counts Two through Five of the
indictment. In Counts Two and Three, Farrington was indicted for possession with
intent to distribute “a detectable amount” of cocaine and cocaine base, not five
grams or more of such substances. R1-6 at 2-3. In Count Four, Farrington was
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indicted for trafficking in a detectable amount of cocaine, not cocaine base. R1-6
at 3. Finally, in Count Five, Farrington was indicted for trafficking in a detectable
amount of marijuana, not cocaine base. We remand to the district court with
directions to correct the errors in Counts Two through Five of Farrington’s
judgment and commitment order.
2. The Sentences Apportioned As To Counts Two and Three Are Proper
Farrington argues that the district court improperly apportioned 300 months
of imprisonment as to Counts Two and Three based upon a misunderstanding of
the crimes of conviction in those two counts and that these sentences exceed the
applicable statutory maximum sentences. Farrington contends that the district
court could not exceed the statutory maximum sentences for the crimes charged in
the indictment. This argument is without merit, as Farrington was convicted and
sentenced under an advisory sentencing scheme based upon drug quantity
determinations found beyond a reasonable doubt by the jury.
In Count Two, Farrington was charged with conspiracy to distribute “a
detectable amount” of cocaine base, and in Count Three, he was charged with
possession of “a detectable amount” of cocaine base. The statutory maximum
sentences for each of these crimes is 20 years. See 21 U.S.C. § 841(b)(1)(C). The
district court enhanced Farrington’s sentences for these crimes based upon the
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quantity of drugs found by the jury. Under United States v. Cotton, even if no drug
quantity is alleged in the indictment, a district court may enhance a defendant’s
sentence if the evidence as to the relevant quantity of drugs is proven at trial by
“overwhelming and essentially uncontroverted” evidence. 535 U.S. 625, 633, 122
S. Ct. 1781, 1786 (2002) (quotation and citation omitted). Therefore, the quantity
of drugs proven at Farrington’s trial provided a proper basis for enhancing
Farrington’s sentences as to Counts Two and Three. Although the district court’s
judgment and commitment order erroneously recited certain of the offenses for
which Farrington was indicted, the district court correctly considered the quantity
of drugs as found by the jury when considering the appropriate term of
imprisonment for Farrington’s violations of § 841(b)(1)(C). Notwithstanding those
errors in the district court’s judgment and commitment order, the district court did
not commit error under Apprendi and its progeny because Farrington’s sentence is
within the range authorized by the facts established by the jury’s verdict. See
United States v. Booker, 543 U.S. 220, 243-44, 125 S. Ct. 738, 755-56 (2005),
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2002). In
fact, the drug quantity found by the jury supported a sentence of up to 40 years of
imprisonment. See 21 U.S.C. § 841(b)(1)(B). Based upon the jury’s verdicts as to
the drug quantities Farrington possessed and conspired to distribute, we conclude
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that the district court properly enhanced Farrington’s sentences as to Counts Two
and Three.
3. Farrington’s Sentence Is Reasonable
Finally, Farrington argues that the incorrect listing of his crimes of
conviction, and subsequent apportionment of his sentence resulted in an excessive
and unreasonable sentence. A sentence can be reviewed for procedural or
substantive reasonableness. United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th
Cir. 2006). Each will be addressed in turn.
We review a final sentence for reasonableness in light of the 18 U.S.C.
§ 3553(a) sentencing factors. United States v. Winingear, 422 F.3d 1241, 1246
(11th Cir. 2005) (per curiam). Recently, the Supreme Court clarified that courts of
appeals, when reviewing for reasonableness, are to apply the deferential abuse-of-
discretion standard. Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 591
(2007). Review for substantive reasonableness under the abuse-of-discretion
standard involves inquiring whether the factors in § 3553(a) support the sentence
in question. Id. at ___, 128 S. Ct. at 596. We “must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
[or] failing to consider the § 3553(a) factors.” Id. at ___, 128 S. Ct. at 597. If the
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district court made no procedural errors, we must “then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id.
Reasonableness review is “deferential,” and “the 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 [§] 3553(a).” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005) (per curiam). The district court need not state
on the record that it has explicitly considered each factor and it need not discuss
each factor. Id. at 786. Rather, “an acknowledgment by the district court that it
has considered the defendant’s arguments and the factors in [§] 3553(a) is
sufficient under Booker.” Id. The weight to be accorded to the § 3553(a) factors is
within the district court’s discretion. See United States v. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006), cert. dismissed, 127 S. Ct. 3040 (2007), overruled on
other grounds by Kimbrough v. United States, ___ U.S. at ___, 128 S. Ct. 558, 566
n.4 (2007). The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for the
sentence (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense, (B) to afford adequate
deterrence to criminal conduct, (C) to protect the public from further crimes by the
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defendant, and (D) to provide the defendant with needed educational or vocational
training or medical care; (3) the kinds of sentences available; (4) the Sentencing
Guidelines range; (5) pertinent policy statements of the Sentencing Commission;
(6) the need to avoid unwanted sentencing disparities; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7). Moreover, we have rejected
the notion that a sentence within the Guidelines is per se reasonable. Talley, 431
F.3d at 787. Even so, “there is a range of reasonable sentences from which the
district court may choose, and when the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Id. at 788.
Upon review of the record and the parties’ briefs, we discern reversible no
error. Before pronouncing Farrington’s sentences, the district court acknowledged
that the Guidelines’ sentencing range is between 360 months of imprisonment and
life imprisonment, because of Farrington’s weapons offense. The district court
immediately thereafter stated that “the low end of [the] [G]uidelines are adequate.”
R10 at 9. By that statement, we conclude that the district court found that a total of
360 months of imprisonment was an adequate sentence, which is the low end of the
Guidelines’ range under § 4B1.1(c)(3), and not, as Farrington argues, that the
district court intended to impose a sentence at the low end of the Guidelines as to
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each individual count of the indictment. Because the district court properly
considered the Guidelines and the § 3553(a) factors in arriving at Farrington’s
sentence, Farrington cannot establish that his sentence was procedurally
unreasonable. Additionally, because the aggregate sentence of 360 months was at
the low end of the Guidelines range, and was justified by Farrington’s prior
criminal history and the nature of the offenses, Farrington cannot establish that his
sentence was substantively unreasonable.
III. CONCLUSION
Arthur Farrington, III appeals his convictions and 360-month sentence for
possession of a firearm by a convicted felon, possession of a firearm during a drug
trafficking crime, and related drug offenses. Farrington argues that his convictions
must be vacated because the district court erroneously entered a judgment
inconsistent with the indictment. Farrington also argues that the district court
imposed an unreasonable and excessive sentence because it misunderstood the
sentences available under the crimes charged Counts One, Two, and Three. We
conclude that the district court’s judgment and commitment order contains clerical
errors with respect to certain of the counts of conviction, and we modify and
remand this case in part to correct those errors. We affirm Farrington’s sentences,
because we conclude that the district court’s sentences are supported by the jury’s
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findings as to the quantity of drugs Farrington possessed and conspired to
distribute, and because they are reasonable.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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