[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-12738 ELEVENTH CIRCUIT
May 28, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-14054-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS RUBEN GUZMAN,
Defendant-Appellant.
-----------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
------------------------------------------
(May 28, 2008)
Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Carlos Ruben Guzman appeals his 17-month sentence
imposed after he pled guilty to conspiring to manufacture, distribute and dispense
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), 846. No reversible error
has been shown; we affirm.
Defendant’s guideline range was first calculated by the Probation Office as
12 to 18 months, but Defendant was subject to a statutory mandatory minimum
sentence of five years’ imprisonment. The government agreed that the
Defendant’s acceptance of responsibility and safety valve statement satisfied
U.S.S.G. §§ 3E1.1(a) and 5C1.2(a)(5) and 18 U.S.C. § 3553(f)(5). With the
acceptance of responsibility adjustment and without the effects of the statutory
mandatory minimum, Defendant’s recalculated advisory guideline range was 24 to
30 months’ imprisonment. The government requested that a 24-month sentence be
imposed; Defendant argued that an 8-month sentence would be appropriate in the
light of his personal characteristics, the nature of his offense participation, the
sentences of similarly-situated defendants, and the fact that Defendant already had
been in state custody for six weeks for this offense and would otherwise receive
no credit for that time served. The district court imposed a sentence of 17 months’
imprisonment; the sentence is five months below Defendant’s advisory guidelines
range.
No argument is made that the advisory guideline range was calculated
incorrectly. Instead, Defendant takes issue with the district court’s failure to
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articulate fully the court’s consideration of Defendant’s limited participation in the
offense and other special factors that Defendant advanced in support of a lesser
sentence.
The transcript of the sentencing hearing makes it clear that the district court
committed no procedural sentencing error: the district court calculated correctly
the advisory guideline range, treated the guidelines as advisory, considered the
section 3553(a) factors, selected a sentence based on facts that were not clearly
erroneous, and explained adequately the chosen sentence. No requirement exists
that the district court articulate explicitly its reasoning attending the weight
accorded the factors in the sentencing complex; “[r]ather, an acknowledgment by
the district court that it has considered the defendants arguments and the § 3553(a)
factors will suffice.” United States v. Bohannon, 476 F.3d 1246, 1248 (11th Cir.),
cert. denied, 127 S.Ct. 2953 (2007).
Defendant’s claim that the sentence imposed is unreasonable fails.*
Appellate review of the substantive reasonableness of a sentence -- whether inside
or outside the guidelines range -- is under an abuse-of- discretion standard. Gall v.
United States, 128 S.Ct. 586, 597 (2007). This review is deferential; and “the
*
The government asserts that Defendant’s reasonableness argument should be subject to plain
error review because he failed to preserve a reasonableness objection in the district court. We need
not decide this issue; Defendant shows no reasonableness error, plain or otherwise.
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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).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Even if an
appellate court disagrees with the weight the district court afforded the section
3553(a) factors, we will reverse only if the final sentence imposed lies outside the
range of reasonable sentences. See United States v. McBride, 511 F.3d 1293,
1297-98 (11th Cir. 2007).
The district court explained that the variant sentence chosen was appropriate
in the light of the sentences of similarly situated defendants, as well as
Defendant’s (i) involvement in the conspiracy; (ii) contribution to judicial
economies by entering a guilty plea; and (iii) earlier involvement with the criminal
justice system. Although Defendant complains that the district court “unfairly
took into account [his] failure to appear for participation in a [deferred prosecution
program],” the history and characteristics of the defendant and the need to promote
respect for the law are proper section 3553(a) considerations. We cannot say the
17-month sentence imposed -- below the advisory guidelines range -- was “outside
the range of reasonable sentences dictated by the facts of the case.” United States
v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. dismissed 127 S.Ct. 3040
(2007), abrogated on other grounds Kimbrough v. United States, 128 S.Ct. 558
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(2007). No clear error of judgment in weighing the section 3553(a) factors has
been shown.
AFFIRMED.
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