[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 08, 2008
No. 07-15229 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00454-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2008)
Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Smith pleaded guilty to (1) conspiracy to possess with intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. §
841(a)(1), 841(b)(1)(A)(ii)(II); (2) attempted possession with intent to distribute
five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1),
841(b)(1)(A)(ii)(II); and (3) aiding and abetting another who carried a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)A),
924(c)(1)(A)(i). The district court sentenced him to the Sentencing Guidelines
minimum of 322 months.1 Smith did not object to his sentence.
On appeal, Smith argues that the sentence was substantially unreasonable
because he has a history of mental illness and the district court failed to
appropriately take this into account in fashioning a sentence.2 Further, he claims
that the district court failed to appropriately weigh the fact that Smith was taken off
his medication prior to the commission of the crimes.
In reviewing the sentence imposed by the district court for reasonableness,
we consider the final sentence, in its entirety, in light of the § 3553(a) factors.
United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). This reasonableness
1
The Sentencing Guidelines range was 262 to 327 months for the drug crimes, but the
gun conviction required a statutory consecutive 60-month sentence. Thus, in effect, the
minimum was 322 months.
2
Smith’s brief is not entirely clear, but to the extent that Smith argues that the court erred
in not granting a downward departure, we note that we do not have jurisdiction to consider such
an argument. See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (we do not
have jurisdiction over whether the district court failed to apply a downward departure, so long as
the district court did not incorrectly believe that it lacked the authority to do so).
2
standard is deferential, and the defendant bears the burden of establishing that the
sentence is unreasonable. United States v. Bohannon, 476 F.3d 1246, 1253 (11th
Cir. 2007). We review the district court’s imposition of a sentence under the
abuse-of-discretion standard.3 Gall v. U.S., 552 U.S. ____, 128 S.Ct. 586, 597
(2007). The sentence must be both procedurally and substantively reasonable.4 Id.
Substantive reasonableness involves inquiring into whether the court abused its
discretion in determining that the statutory factors in 18 U.S.C. § 3553(a) support
the sentence in question. Id. at 600. Pursuant to § 3553(a), the sentencing court
shall impose a sentence “sufficient, but not greater than necessary” to comply with
the purposes of sentencing listed in § 3553(a)(2), namely reflecting the seriousness
of the offense, promoting respect for the law, providing just punishment for the
offense, deterring criminal conduct, protecting the public from future criminal
conduct by the defendant, and providing the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2). Section 3553(a)
also requires the sentencing court to consider the nature and circumstances of the
offense, the advisory Guidelines range, and the need to avoid unwarranted sentence
3
The Government contends that the plain error standard applies because Smith did not
challenge the reasonableness of his sentence before the district court. Smith did, however, seek
a reduced sentence due to his mental status. We need not decide which standard of review
applies because under either standard Smith’s argument lacks merit.
4
Smith does not challenge the procedural reasonableness of his sentence.
3
disparities. See 18 U.S.C. § 3553(a)(1), (4),(6). We will reverse a procedurally
sound 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.” United States v. Williams, 456 F.3d 1353, 1363 (11th
Cir. 2006).
After reviewing the record, we cannot say that the district court erred. The
district judge considered the § 3553 factors and specifically discussed the nature
and circumstances of the offense, the seriousness of the offense, the danger Smith
presents to the public, and his lengthy criminal record. The court then sentenced
Smith at the bottom of the Sentencing Guidelines range.
With regard to Smith’s specific argument that the judge failed to adequately
weigh Smith’s history of mental illness and the fact that Smith was off his
medication at the time of committing the crimes, we, again, are not convinced that
the district court erred. The court considered Smith’s argument and rejected it.
Smith failed to provide the district court with any evidence of a lengthy history of
mental illness or collaborate his story of being off his medication. His claims are
self-reported and unsubstantiated. Indeed, the district court found that Smith was
malingering. Smith has not left us with a firm conviction that the sentence was
4
unreasonable.
Accordingly, we AFFIRM.
5