United States v. Nelson Dale Ricks

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 25, 2012
No. 11-12370
Non-Argument Calendar JOHN LEY
CLERK
________________________

D.C. Docket No. 6:91-cr-00137-PCF-GJK-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

NELSON DALE RICKS,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(January 25, 2012)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
Nelson Dale Ricks appeals his forty-eight-month, within-range sentence,

imposed following the revocation of his supervised release. He argues that the

sentence was both procedurally and substantively unreasonable. We affirm.

In reviewing a sentence, we must first determine whether the district court

committed any procedural error. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). A district court commits a procedural error if, for instance, it

fails to consider all of the factors listed in 18 U.S.C. § 3553(a). See id. If the

district court’s decision is procedurally reasonable, the analysis turns to the

substantive reasonableness of the sentence. Id. Our review, in this regard, is

highly deferential. Id. “We may not . . . set aside a sentence merely because we

would have decided that another one is more appropriate.” United States v. Irey,

612 F.3d 1160, 1191 (11th Cir. 2010) (en banc). We will vacate a 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.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).

Ricks argues that the district court relied on only one factor in fashioning

his sentence—his criminal history. Ricks thus appears to argue that the district

court failed to consider all of the factors listed in Section 3553(a). We are not

persuaded by this argument. We have held that a district court is not required to

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“state on the record that it has explicitly considered each of the § 3553(a) factors

or discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). An acknowledgment that the district court considered the

Section 3553(a) factors is sufficient. United States v. Talley, 431 F.3d 784, 786

(11th Cir. 2005). Here, the district court expressly stated that “it has considered

the factors set forth” in Section 3553(a). It also discussed in more detail some of

those factors. The district court’s sentencing decision was thus procedurally

reasonable.

We also cannot say that the sentence imposed by the district court was

substantively unreasonable. The term of forty-eight months imprisonment was

within the guidelines range. Although we do not presume a sentence within the

guidelines range to be reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Ricks

argues that the sentence must nonetheless be vacated in light of his testimony

about the loss of his son and his sister’s need for a kidney transplant.

The district court noted, however, that Ricks has a significant and lengthy

criminal history. The district court observed that one of the offenses for which his

supervised release was revoked—the commission of an aggravated assault with a

deadly weapon—was serious. The district court expressed concern about

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deterrence and public safety. It observed that the commission of the aggravated

assault, which occurred about seven months into Ricks’s term of supervised

release, indicated that he was “not amenable to supervision.” Taking all of this

into account, we cannot say that the record leaves us with “the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors.” Pugh, 515 F.3d at 1191 (quotation marks omitted).

Ricks’s sentence must therefore be affirmed.

AFFIRMED.