[DO NOT PUBLISH]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. 07-14518 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00464-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEE WILLIAMS,
a.k.a. Rob 1,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 28, 2008)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Robert Lee Williams appeals his 235-month sentence, imposed after he pled
guilty to (1) conspiracy to possess with the intent to distribute 50 grams or more of
crack cocaine and a quantity of cocaine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii)
and (b)(1)(C) (count 1); (2) conspiracy to unlawfully use firearms in relation to
drug trafficking crimes, 18 U.S.C. § 924(o) and 2 (count 2); and (3) possession
with the intent to distribute 50 grams or more of crack cocaine and a quantity of
cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and (b)(1)(C) (count 4). Williams
argues that the district court imposed a sentence that was greater than necessary to
achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a) when it
sentenced him within an advisory guideline range that was calculated based on the
application of a 100:1 crack cocaine-to-powder cocaine ratio. Williams asserts
that, in light of the Supreme Court’s ruling in Kimbrough v. United States, 552
U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the district court abused its
discretion by applying that ratio.
For the reasons set forth more fully below, we affirm Williams’s sentence.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
Booker’s requirements, or substantive. See Gall v. United States, 552 U.S. ___,
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128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt, 459 F.3d 1180,
1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may
be procedurally unreasonable if the district court improperly calculates the
guideline imprisonment range, treats the Guidelines as mandatory, fails to consider
the appropriate statutory factors, bases the sentence on clearly erroneous facts, or
fails to adequately explain its reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597.
The Court also has explained that the substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Id. It has suggested that review
for substantive reasonableness under this standard involves inquiring whether the
factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128
S.Ct. at 600.
When imposing a sentence, the district court must first correctly calculate
the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Second, the district court must consider the following factors to determine a
reasonable sentence:
(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 promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
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avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)). “[N]othing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, indications in the record that
the district court considered facts and circumstances falling within § 3553(a)’s
factors will suffice. Id. at 1329-30.
We have recognized that “there is a range of reasonable sentences from
which the district court may choose,” and the burden of establishing that the
sentence is unreasonable in light of the record and the § 3553(a) factors lies with
the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). We have held that a sentence within the guidelines range is
neither per se reasonable, nor entitled to a presumption of reasonableness. See id.
at 786-88; Hunt, 459 F.3d at 1185.
Williams does not challenge the procedural reasonableness of his sentence
on appeal. Nevertheless, the record demonstrates that the district court correctly
calculated the advisory guideline range, expressly considered the § 3553(a) factors,
and sufficiently explained its reasons for imposing a 235-month sentence. See
Gall, 552 U.S. at ___, 128 S.Ct. at 597.
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As to the substantive reasonableness of his sentence, “[u]nder the statute
criminalizing the manufacture and distribution of crack cocaine, 21 U.S.C. § 841,
and the relevant Guidelines prescription, § 2D1.1, a drug trafficker dealing in crack
cocaine is subject to the same sentence as one dealing in 100 times more powder
cocaine.” Kimbrough, 552 U.S. at ___, 128 S.Ct. at 564. In Kimbrough, the
Supreme Court held that a district court may determine that “a within-Guidelines
sentence is ‘greater than necessary’ to serve the objectives of sentencing,” and in
making that determination, the district court “may consider the disparity between
the Guidelines’ treatment of crack and powder cocaine offenses.” Id. at ___, 128
S.Ct. at 564. In so holding, the Supreme Court overruled our earlier opinion in
United States v. Williams, 456 F.3d 1353, 1366 (11th Cir. 2006), which held that a
district court may not consider the disparity between crack and cocaine when it
imposes a sentence in a crack cocaine case. The Supreme Court also rejected the
Fourth Circuit’s reasoning that “‘a sentence . . . outside the guidelines range is per
se unreasonable when it is based on a disagreement with the sentencing disparity
for crack and powder cocaine.’” Kimbrough, 552 U.S. at ___, 128 S.Ct. at 564.
Here, the district court expressly considered the § 3553(a) factors in
determining that a Guidelines sentence was appropriate and was not greater than
necessary to comply with the purposes of sentencing. In Kimbrough, the Supreme
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Court explained that a district court “may consider the disparity between the
Guidelines treatment of crack and powder cocaine offenses,” not that it must do so.
128 S.Ct. 558, 564 (emphasis added). Because “[t]he cocaine Guidelines, like all
other Guidelines, are advisory only,” Kimbrough, 128 S.Ct. at 564, the district
court acted within its discretion to determine that a within-Guidelines sentence
served the objectives of sentencing under § 3553(a). Nothing in either the decision
of the Supreme Court in Kimbrough or our precedents required the district court to
discuss the crack cocaine-to-powder cocaine disparity. See Scott, 426 F.3d at
1329. Accordingly, Williams has failed to establish that his sentence at the low-
end of the advisory guideline range is substantively unreasonable.
In light of the foregoing, Williams’s sentence is
AFFIRMED.
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