[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11623 May 9, 2008
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 06-20600-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO ORLANDO SCOTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 9, 2008)
Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Ricardo Orlando Scott appeals his 120-month
sentence imposed after a jury conviction for conspiring and attempting to possess
with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C. § 846. No
reversible error has been shown; we affirm.
On appeal, Scott argues that his sentence -- 12 months above the advisory
Guidelines range -- was procedurally and substantively unreasonable. We review
Scott’s sentence for reasonableness in the light of the factors set out in 18 U.S.C. §
3553(a). United States v. Winingear, 422 F.3d 1241, 1244-46 (11th Cir. 2005).
And we evaluate the reasonableness of a sentence using a deferential abuse-of-
discretion standard. Gall v. United States, 128 S.Ct. 586, 597 (2007).1
Briefly stated, under section 3553(a), a district court should consider,
among other things, the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for the sentence to provide adequate
deterrence, respect for the law, and protection of the public, policy statements of
the Sentencing Commission, provision for the medical and educational needs of
the defendant, and the need to avoid unwarranted sentencing disparities. See 18
U.S.C. § 3553(a)(1)-(7). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both [the]
1
The government asserts that Scott did not properly object to the sentence as unreasonable after
it was imposed and that we should review his present challenge only for plain error. But we need
not decide this issue because, even under a reasonableness standard, Scott’s appeal fails.
2
record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
We conclude that Scott’s sentence was reasonable. The district court
correctly calculated Scott’s advisory Guidelines range at 87 to 108 months.2
Though Scott’s 120-month sentence was above that range, it was well below the
480-month statutory maximum sentence. See 21 U.S.C. § 841(b)(1)(B);
Winingear, 422 F.3d at 1246 (comparing, as one indication of reasonableness, the
actual prison term imposed against the statutory maximum). In addition, the
district court explained that it considered the section 3553(a) factors and a
sentence above the Guidelines range was appropriate in Scott’s case. The district
court specifically considered that Scott had committed a nearly identical drug
crime five years before but received only a 90-day sentence in state court; thus, the
court determined that the Guidelines range did not sufficiently promote respect for
the law and deter Scott from committing future crimes. See § 3553(a)(2)(A), (B).
The district court also, in its justifications for an above-Guidelines sentence, cited
Scott’s continued refusal to accept responsibility and his perjured trial testimony.
2
The district court determined Scott’s base offense level pursuant to U.S.S.G. § 2D1.1(c)(7), and
enhanced it by 2 levels for obstruction of justice, U.S.S.G. § 3C1.1, based on Scott’s perjured trial
testimony.
3
The district court was not required to state on the record that it explicitly
considered each of the section 3553(a) factors. United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005). And the district court adequately justified its 12-
month upward variance. See Gall, 128 S.Ct. at 597 (explaining that a sentencing
judge “must consider the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance”). Contrary to
Scott’s assertion, a sentence outside the Guidelines range need not be justified by
extraordinary circumstances. Id. at 594-95.
Here, the district court determined that the Guidelines range did not yield a
reasonable sentence, and nothing in the record convinces us the sentence was
unreasonable. Based on the factors outlined in section 3553(a) and our review of
the record, we conclude that Scott has not carried his burden of showing that his
sentence was unreasonable.3
AFFIRMED.
3
We briefly address Scott’s specific arguments. His argument that the district court gave
unreasonable weight to certain section 3553(a) factors to the detriment of others is without merit;
the court can determine the appropriate weight to give the section 3553(a) factors. See United States
v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) cert. dismissed, 127 S.Ct. 3040 (2007), abrogated
in part on different grounds by Kimbrough v. United States, 128 S.Ct. 558 (2007) (explaining that
“[w]e will not substitute our judgment in weighing the relevant factors.”). We also reject Scott’s
argument that the district court justified its sentence based on its own disagreement with sentencing
policy; the record clearly reflects that the court considered the Guidelines and the section 3553(a)
factors in determining that Scott’s situation warranted an above-Guidelines sentence. The
government’s recommendation of a sentence at the low end of the Guidelines range does not bear
on whether the court imposed a reasonable sentence.
4