[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 28, 2008
No. 07-15020 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00004-CR-T-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN KEITH THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 28, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Jonathan Thomas appeals his 72-month sentence imposed after pleading
guilty to one count of possession of a 9mm firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). On appeal, Thomas argues that (1) the district
court violated his due process rights when it imposed the upward variance based,
in part, on hearsay or unreliable testimony concerning an uncharged offense that
did not qualify as relevant conduct under the Guidelines, and (2) his sentence is
procedurally or substantively unreasonable.1 After a thorough review of the
record, we affirm.
I.
In January 2007, Thomas was indicted for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g). The firearm
at issue in the indictment was a 38 caliber revolver. In May 2007, the government
filed a felony information charging Thomas with possession of a firearm by a
convicted felon, which carried a statutory maximum sentence of ten years’
imprisonment. The firearm at issue in the information was a 9mm pistol. Pursuant
to a written plea agreement, Thomas pleaded guilty to the information, admitting
that he possessed a 9mm pistol. In exchange, the government agreed to dismiss
1
Thomas also argues that his due process rights were violated when the district court
found that he committed the armed robbery with a Colt .38 revolver, even though the government
had not yet presented all of its evidence to establish those facts. We reject this argument, as the
record demonstrates that the court did not impose sentence until after a second sentencing
hearing in which the government presented additional corroborating testimony from the victim of
the armed robbery and witnesses to that offense.
2
the indictment and recommend a sentence at the low end of the guidelines range.
The court accepted Thomas’s plea.
The PSI calculated the guidelines range as 57 to 71 months’ imprisonment,
based in part on an enhancement for discharging a firearm. This enhancement
involved the use of the 38 caliber revolver to commit a robbery and shoot at the
victim.
At the sentencing hearing, the government called an ATF agent to testify
that Thomas used the 38 caliber to rob a man named Clarence McMeans.
According to the agent, Thomas approached McMeans, a drug dealer, pointed the
38 caliber weapon at McMeans, and demanded drugs, money, and McMeans’s cell
phone. After McMeans complied and started to drive away, Thomas fired three
shots into McMeans’s car. The ATF agent had no direct knowledge of the events
and testified based on what she had been told by local investigators. The court
determined that it could not apply an enhancement for discharging the 38 caliber
firearm or consider the incident as relevant conduct under the guidelines, but that
it could be considered under the sentencing factors of 18 U.S.C. § 3553(a) as the
court was “absolutely” certain that Thomas committed the robbery using the 38
caliber pistol on the same day he had possessed the 9mm firearm. Thomas
objected to the use of this uncharged, non-relevant conduct to increase his
3
sentence, noting that the evidence presented was based on unreliable hearsay. The
court then continued the sentencing hearing to enable the government to present
additional evidence and warned Thomas that it was considering a sentence well
above the advisory guidelines range in light of this conduct.
At the second sentencing hearing, the government presented testimony from
the local investigator, McMeans, and several witnesses to the robbery. Thomas
was given the opportunity to cross-examine each witness and challenge their
credibility. After hearing the evidence, the court concluded that the government
had established “beyond a reasonable doubt” that Thomas used a 38 caliber gun to
rob McMeans. In light of the court’s findings, the guidelines range was 30 to 37
months’ imprisonment. Per the terms of the plea agreement, the government
recommended a sentence of 30 months. The probation officer recommended a
sentence of 72 months’ imprisonment based on Thomas’s history and criminal
record, the need to deter future crimes, and the need to protect the public.
Defense counsel then objected to the government’s failure to recommend an
additional one-point reduction for acceptance of responsibility as outlined in the
plea agreement. After discussing the issue, the court applied the reduction,
making the guidelines range 27 to 33 months’ imprisonment.
The court then considered the § 3553(a) factors, concluding that Thomas’s
4
conduct - the possession of the 38 caliber gun and the robbery - was not
adequately taken into consideration in the guidelines range. The court addressed
the nature and circumstances of the offense, Thomas’s history and characteristics,
Thomas’s violent history, the seriousness of the offense and the need to promote
respect for the laws, protect the public, and deter future crimes. The court
concluded that a sentence of 72 months’ imprisonment was sufficient but not
greater than necessary to meet these goals. Thomas now appeals.
II.
We review de novo constitutional challenges to a sentence. United States
v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
The Fifth Amendment to the U.S. Constitution prohibits a person from
being deprived of life, liberty, or property without due process of law. U.S. Const.
amend. V. Due process, in the sentencing context, requires that the defendant “be
given adequate notice and an opportunity to contest the facts relied upon to
support his criminal penalty.” United States v. Satterfield, 743 F.2d 827, 840
(11th Cir. 1984). “The defendant need not, however, be accorded the same degree
of due process protections during the sentencing phase as was required at the
criminal trial.” Id. “The sole interest being protected is the right not to be
sentenced on the basis of invalid premises or inaccurate information.” Id. Thus,
5
“[t]he degree of protection required is only that which is necessary to ensure that
the district court is sufficiently informed to enable it to exercise its sentencing
discretion in an enlightened manner.” Id.
Judges may consider out-of-court information at sentencing as long as the
information is reliable and the defendant is given the opportunity to rebut it.
United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). In determining the
reliability of hearsay, the court should consider whether the statement is
corroborated or contradicted by other evidence. Id. at 1169.
To establish a due process violation based on the court’s reliance on false or
unreliable information, the defendant must show: “(1) that the challenged evidence
is materially false or unreliable, and (2) that it actually served as the basis for the
sentence.” Id. at 1167. If the defendant meets his burden, we will remand to the
district court for a new sentencing hearing. Id.
Credibility findings are within the province of the factfinder. See United
States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004). Moreover, “‘[t]he fact
that a witness has consistently lied in the past, engaged in various criminal
activities, and though that his testimony would benefit him . . . does not make his
testimony incredible.’” United States v. Thompson, 422 F.3d 1285, 1291 (11th
Cir. 2005) (quoting United States v. Cravero, 530 F.2d 666, 670 (5th Cir. 1976)).
6
“For testimony to be considered incredible as a matter of law, ‘it must be
unbelievable on its face, i.e., testimony as to facts that [the witness] could not have
possibly observed or events that could not have occurred under the laws of
nature.’” Id. (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.
1985)).
The district court here did not violate Thomas’s due process rights in
relying on the government witnesses’ testimony at sentencing in order to find that
he engaged in criminal conduct other than the charged offense. First, to the extent
the district court relied on the ATF agent’s testimony, which was based on the
hearsay, Thomas’s due process rights were fully preserved. The hearsay
statements bore a “minimal indicia of reliability,” see Reme, 738 F.2d at 1167, as
they were consistent with the testimony of other government witnesses.
Moreover, Thomas had the opportunity to cross-examine all of the government
witnesses.
Second, to the extent that the district court relied on the testimony of the
victim and the eyewitnesses, Thomas has not satisfied his burden of proving that
their testimony was materially false or unreliable so as to deny him due process.
The witnesses’ testimony was consistent on the dispositive point that Thomas
robbed McMeans while holding a 38 caliber revolver to his head and fired three
7
shots at McMeans’s vehicle as he attempted to flee.
Third, we will not disturb the district court’s credibility finding in favor of
the government witnesses over Thomas’s denial of ever possessing the 38 caliber
firearm.
Finally, we note that even though the district court was only required to
make sentencing facts based on the “preponderance of the evidence” standard, it
decided unilaterally to use the beyond a “reasonable doubt” standard in order to
ensure that Thomas’s due process rights were fully protected. Even under this
heightened standard the court found that the government proved Thomas
committed the armed robbery with the 38 caliber revolver.
III.
Following United States v. Booker, 543 U.S. 220, 1125 S.Ct. 738,
160 L.Ed.2d 621 (2005), we review sentences for reasonableness. United States
v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). The Supreme Court recently
clarified that the reasonableness standard is synonymous with the abuse of
discretion standard. Gall v. United States, 552 U.S. __, 128 S.Ct. 587, 596, 169
L.Ed.2d 445 (2007).
In imposing sentence, a district court first must correctly calculate a
defendant’s applicable advisory Guidelines range, and then must consider all of
8
the factors outlined in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence.
Gall, 128 S.Ct. at 596-97. These factors include: (1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to afford adequate deterrence, to promote
respect for the law, to provide just punishment for the offense, to protect the
public, and 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 Sentencing Commission policy statements; (6) the
need to avoid unwarranted sentencing disparities; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a).
If the court finds that a sentence outside of a defendant’s applicable
Guideline range is warranted, it “must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the
variance.” Gall, 128 S.Ct. at 597. After deciding on the appropriate sentence, the
district court must sufficiently explain the chosen sentence to permit meaningful
appellate review and to promote the perception of fair sentencing. Id.
Our review of a sentence imposed is two-fold. First, we must ensure that
the district court committed no significant procedural error. Second, we must
ensure that the sentence imposed by the district court was substantively
9
reasonable. Id.
A sentencing decision is procedurally sound if the district court correctly
calculated the defendant’s sentencing range, treated the Guidelines as advisory,
considered the § 3553(a) factors, selected a sentence that was not based on clearly
erroneous facts, and adequately explained the chosen sentence, including an
explanation for any deviation from the defendant’s sentencing range. Id.
A sentencing decision is substantively reasonable if the district court acted
within its discretion in determining that the § 3553(a) factors supported the
sentence and justified any deviation from the defendant’s sentencing range. Id.
at 600. A “district court need only ‘acknowledge’ that it ‘considered the § 3553(a)
factors[,]’ and need not discuss each of these factors in either the sentencing
hearing or in the sentencing order[.]” United States v. Amedeo, 487 F.3d 823, 833
(11th Cir.), cert. denied, 128 S.Ct. 671 (2007) (internal citations omitted).
In considering the substantive reasonableness of a sentence imposed, we
“will, of course, take into account the totality of the circumstances . . . [and] may
consider the extent of [any] deviation [or the degree of any variance], but must
give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the [deviation or] variance.” Gall, 128 S.Ct. at 594-95,
597.
10
“The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” United States v. Williams,
456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough
v. United States, 128 S.Ct. 558 (2007). We will not substitute our judgment for
that of the sentencing court as to the appropriateness of a particular sentence.
United States v. Melvin, 187 F.3d 1316, 1323 (11th Cir. 1999) (citation omitted)
(alteration in original). Thus, we will reverse a procedurally proper sentence only
if we are “left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” Williams, 456 F.3d at1363.
Here, we conclude that Thomas’s sentence was procedurally sound. The
parties do not dispute that the district court properly calculated the guidelines
range. The record demonstrates that the court allowed Thomas to present
arguments as to why the probation officer’s recommendation of 72-months’
imprisonment was not reasonable, noted that the Guidelines were advisory,
considered the § 3553(a) factors, and thoroughly explained its reasoning for the
sentence imposed. Moreover, for the limited purpose of deciding this appeal, we
agree with the district court that information concerning Thomas’s involvement in
11
the armed robbery, though uncharged and non-relevant criminal activity, could be
considered in imposing sentence under the following § 3553(a) factors: the
“history and characteristics of the defendant” and the need of a sentence to ?afford
adequate deterrence, . . . promote respect for the law, . . . [and] protect the public.”
Thomas’s sentence was substantively reasonable as well. The record
demonstrates that the district court listened to the parties’ evidence and arguments
concerning a reasonable sentence, ultimately imposed a 72-month variant
sentence, and sufficiently explained the chosen variant sentence to permit
meaningful appellate review and to promote the perception of fair sentencing.
Specifically, the court explained that the sentence imposed was “sufficient but not
greater than necessary to comply with the statutory purposes of sentencing,” given
(1) the nature and circumstances of the offense; (2) Thomas’s history and
characteristics, specifically, that he was an “extremely violent man who shoots
into cars and who can kill people;” (3) the seriousness of the offense; (4) the need
to promote respect for the law; and (5) the need to afford adequate deterrence to
criminal conduct, and to protect the public from further crimes by Thomas. The
district court further stated that it believed any sentencing disparity was warranted,
and that the Guidelines did not adequately address Thomas’s conduct. In addition,
the 72-month sentence imposed was substantially less than the statutory maximum
12
of 10 years’ imprisonment.
Finally, even if Thomas is correct that the district court afforded more
weight to some § 3553(a) factors than it did to others, we have held that the weight
to be afforded to any particular factor “is a matter committed to the sound
discretion of the district court.” See Williams, 456 F.3d at 1363.
In sum, we are not “left with the definite and firm conviction [on this
record] that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case,” Williams, 456 F.3d at1363, and so we
AFFIRM Thomas’s 72-month sentence.
13