[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 3, 2008
No. 07-15291
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-10018-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORME KELLY DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2008)
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Lorme Kelly Davis appeals his 135-month sentence imposed on remand for
conspiracy to possess with the intent to distribute cocaine while on board a vessel.
Davis asserts two issues on appeal: (1) the district court erred by failing to apply a
minor-role reduction; and (2) his sentence was unreasonable as the district court
failed to consider sentencing disparities with his co-defendants. We affirm
Davis’s sentence.
I.
Davis contends the district court erred by rejecting his request for a minor-
role reduction. In response, the Government asserts Davis waived this issue by
withdrawing his request for such a reduction at his first sentencing hearing and not
raising it in his prior direct appeal.
Where a defendant knowingly invokes and then waives his objection, we
will not review the objection on appeal. See United States v. Masters, 118 F.3d
1524, 1526 (11th Cir. 1997). Further, “an appellant should raise all trial errors in
his appeal of the judgment and sentence,” and an appellant is deemed to have
waived his right to raise issues on a second appeal which he did not raise in his
first. United States v. Fiallo-Jacome, 874 F.2d 1479, 1481-82 (11th Cir. 1989)
(quotations omitted). We reasoned that appellants should not get “two bites at the
appellate apple.” Id. at 1482. A district court need not consider an argument at re-
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sentencing seeking a sentencing adjustment for a timely guilty plea that was not
raised during a previous sentencing or during the first appeal. United States v.
Mesa, 247 F.3d 1165, 1170-71 (11th Cir. 2001). “Requiring the district court to
consider the argument [not raised at the first re-sentencing or on the first appeal] at
the second re-sentencing following our remand would give defendants incentive to
introduce sentencing objections in a piecemeal fashion and would allow them (by
their waiting to advance the argument anew at re-sentencing) to avoid the difficult
burden of ‘plain error’ review in their first appeal.” Id. at 1171.
Davis withdrew his request for a minor-role reduction at his first sentencing
hearing and failed to raise the issue on his first appeal. Thus, Davis has waived
this argument. Davis objected to the PSI claiming it should have included a
minor-role adjustment but informed the court at his first sentencing hearing that he
would “withdraw that minor role request.” Where a defendant invokes and then
waives an objection, the Court does not review it on appeal. See Masters, 118
F.3d at 1526. In addition, Davis failed to raise this argument during his first
appeal, and we have held issues not raised during a first appeal are waived on a
second appeal. See Fiallo-Jacome, 874 F.2d at 1481-82. Finally, the facts of this
case are similar to those in Mesa where the court held that where a defendant does
not raise an objection in a previous sentencing or on appeal, the re-sentencing
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court need not consider it. See Mesa, 247 F.3d at 1170-71. For these reasons,
Davis waived the right to appeal the denial of a minor-role adjustment, and we do
not review the merits of this argument.
II.
Next, Davis contends his sentence is unreasonable. Davis asserts he was
less culpable than his co-defendants and it is plainly unreasonable for him to
receive a longer sentence than they did.
When reviewing for reasonableness, we apply the deferential
abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).
This Court:
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence–including an explanation for
any deviation from the Guidelines range.
Id. After we conclude the district court made no procedural errors, we “should
then consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id.
Review for substantive reasonableness under the abuse-of-discretion
standard involves inquiring whether the factors in 18 U.S.C. § 3553(a) support the
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sentence in question. Id. at 600. “[T]he party who challenges the sentence bears
the burden of establishing that the sentence is unreasonable in light of both [the]
record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). The weight accorded to the § 3553(a) factors is within the
district court's discretion. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.)
cert. denied, 128 S. Ct. 671 (2007). The § 3553(a) factors include: (1) the nature
and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence (A) to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the
public from further crimes of the defendant, and (D) 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 policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted
sentencing disparities; (7) and the need to provide restitution to victims. See 18
U.S.C. 3553(a)(1)-(7). Although we do not apply a presumption of reasonableness
to a sentence within the Guidelines range, “when the district court imposes a
sentence within the advisory Guidelines range, we ordinarily will expect that
choice to be a reasonable one.” Talley, 431 F.3d at 788.
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The district court considered the sentences of Davis’s co-defendants and the
§ 3553(a) factors in imposing its sentence. The record supports the district court’s
decision to impose a longer sentence on Davis; therefore, Davis has failed to
establish that his sentence is unreasonable. First, the court stated it had considered
all the § 3553(a) factors, including § 3553(a)(6)–the need to avoid unwarranted
sentencing disparities. In addition, the court acknowledged it had considered and
compared his sentence to that of his co-defendants. Thus, Davis’s argument the
court erred by failing to consider § 3553(a)(6) is without merit.
The weight accorded the sentencing factors is within the district court’s
discretion, and Davis has not met his burden of establishing the court committed
an abuse of discretion in weighing them in this case. See Amedeo, 487 F.3d at
832. Davis’s argument his sentence is unreasonable partially overlaps with his
argument that he deserved a minor-role adjustment, i.e. his role was less culpable
than that of Morales and Ellis, so his sentence should be more in line with theirs.
Since the district court did not need to consider the issue of a minor-role
adjustment,1 this argument, in and of itself, is insufficient to establish the court
abused its discretion re-sentencing him. Regardless, the court considered the other
1
Davis waived this argument as discussed in Issue I.
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defendants’ sentences along with the other § 3553(a) factors, and Davis has failed
to establish the court abused its discretion in how it weighed those factors.
Further, the record supports the district court’s imposition of a longer
sentence on Davis as there were mitigating factors that applied to Davis’s co-
defendants that were not present in his case. Carlos Hernan Garcia Morales was
given a minor-role adjustment and was sentenced within a lower advisory
Guidelines range as a result. Hidniberg O’Neill Archbold was the first of the co-
defendants to agree to plead guilty, and the Government stated he aided their
investigation and his sentence was reduced accordingly. Julito Bent Ellis received
a lower sentence because of a degenerative heart condition. The record supports
the district court’s decision to sentence Davis to a longer sentence than his co-
defendants as there were mitigating factors in their cases that were not present in
his own.
We cannot conclude this within-Guidelines sentence, imposed after
consideration of the § 3553(a) factors, is unreasonable. See Talley, 431 F.3d at
788. The district court did not abuse its discretion in sentencing Davis, and we
affirm his sentence.
AFFIRMED.
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