[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 22, 2008
No. 07-15146
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-00214-CR-7-LSC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE BILLUPS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 22, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Tyrone Billups appeals his 70-month sentence for possession of a firearm by an
unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(3). On
appeal, Billups argues that the district court erred because it: (1) failed to provide
him with notice of its intent to impose a sentence above the sentencing guidelines
range; and (2) failed to identify the specific § 3553(a) factors justifying an above-
guidelines sentence. We AFFIRM.
I. BACKGROUND
Billups pled guilty to one count of possession of a firearm by an unlawful
user of controlled substances, 18 U.S.C. § 922(g)(3).1 In July of 2004, police
officers responded to a domestic disturbance call at the residence of Tiffany
Williams, who told the officers that Billups was in her apartment with a gun.
During a pat-down search, one of the officers found a plastic baggie containing a
small amount of marijuana in the pocket of Billups’s pants. Williams led the
officer to a rear bedroom where he uncovered a Mossberg .12 gauge shotgun and a
second baggie of marijuana nearby. In total, the officer retrieved approximately
5.72 grams of marijuana and 0.34 grams of crack cocaine. In a post-arrest
interview, Billups admitted to smoking crack cocaine but denied selling drugs.
1
Billups’s plea agreement contained a sentence appeal waiver in which he waived his
right to appeal his conviction or sentence except on the grounds that the sentence was in excess
of the statutory maximum or constituted an upward departure from the advisory guideline
sentencing range. We nevertheless address the merits because the government has not invoked
the sentence appeal waiver or otherwise objected to the filing of this appeal and has briefed the
case on the merits, and because the outcome would be the same even if the appeal waiver were
applied in this case. See United States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006).
2
The probation officer who prepared the pre-sentencing investigation report
(“PSI”) found that Billups was a “prohibited person” at the time of the offense and
calculated a base offense level of 14. See U.S.S.G. § 2K2.1(a)(6) (May 1, 2007);
18 U.S.C. § 922(g)(3). The probation officer applied a four-level enhancement
pursuant to § 2K2.1(b)(6) because Billups possessed the firearm in connection with
the felony offense of possession of cocaine base, and a three-level reduction for
acceptance of responsibility pursuant to § 3E1.1(a) and (b), resulting in a total
adjusted offense level of 15. Based on nine criminal history points, Billups’s
criminal history category was set at IV.2 With a base offense level of 15 and a
criminal history category of IV, Billups’s sentencing guidelines range was
determined to be 30-37 months.
The sentencing court adopted the probation officer’s factual findings and
calculations, to which neither Billups nor the government objected, and sentenced
Billups to 70 months of imprisonment. At sentencing, the district court noted “the
consistency of [Billups’s] criminal conduct” and stated that an above-guidelines
sentence was “appropriate” because it addressed “the need to afford or to reflect
the seriousness of this offense and to afford adequate deterrence from criminal
2
Billups received criminal history points based on prior state convictions for: (1) first-
degree burglary; (2) possession of marijuana, resisting arrest, and speeding; (3) possession of
crack cocaine; and (4) bribing a witness.
3
conduct and to protect the public from further crimes of this defendant.” R3 at 8,
13. Billups now appeals his sentence.
II. DISCUSSION
Billups raises two issues on appeal. He argues first that the district court
erred in failing to provide notice of its intent to impose a sentence above the
advisory sentencing range. He contends additionally that the district court erred in
failing to identify the specific factors in 18 U.S.C. § 3553(a) warranting an above-
guidelines sentence. We address Billups’s arguments in turn.
A. Whether the District Court Erred in Failing to Provide Notice of Intent
to Impose a Sentence Above the Advisory Guidelines Range
Because Billups did not raise this objection in the district court, our review
is for plain error only. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005). Under this standard, we will not reverse the district court unless “(1)
there is an error; (2) the error is plain; (3) the error affects the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) the error
seriously affects the fairness, integrity or public reputation of a judicial
proceeding.” United States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000).
A district court is required to give reasonable notice to the defendant before
it may depart from the advisory sentencing range on grounds not identified for
departure in the PSI or other pre-sentencing submissions. Fed. R. Crim. P. 32(h).
4
We have held that this notice requirement does not apply to variances, however,
because “[a]fter Booker, parties are inherently on notice that the sentencing
guidelines range is advisory and that the district court must consider the factors
expressly set out in section 3553(a) when selecting a reasonable sentence between
the statutory minimum and maximum.” United States v. Irizarry, 458 F.3d 1208,
1211-12 (11th Cir. 2006) (per curiam), aff’d Irizarry v. United States, 553 U.S.
___, 128 S. Ct. 2198 (2008). Whether Billups was entitled to notice before
receiving an above-guidelines sentence thus depends upon whether his sentence
was a departure or a variance.
We have held that an above-guidelines sentence is a variance under § 3553
rather than a guidelines departure where a district court, after correctly calculating
the advisory guidelines range and considering the adequacy of the range in light of
the § 3553(a) factors, “exercise[s] its post-Booker discretion to impose a
reasonable sentence outside the sentencing guidelines range.” Irizarry, 458 F.3d at
1211-12; see United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006) (per
curiam) (noting that the sentencing court treated its decision to impose an above-
guidelines sentence as an exercise of discretion where it did not invoke a specific
guidelines departure provision and stated that the guidelines were inadequate to
address the severity of the offense).
5
We find that Billups’s sentence was a discretionary variance and not a
guidelines departure. The district court correctly calculated the advisory guidelines
range, considered the § 3553 factors, and determined that the guidelines range did
not adequately address the seriousness of the offense, the need for deterrence, or
the need to protect the public from Billups’s future crimes. Because the district
court was not required to give Billups advance notice before imposing a sentence
above the advisory guidelines range, no error, plain or otherwise, has been shown.
B. Whether the District Court Adequately Explained Its Reasons For
Imposing a Sentence Above the Advisory Guidelines Range
Finally, Billups asserts error in the district court’s failure to identify the
specific § 3553(a) justifying the upward variance. We review a final sentence for
reasonableness under a deferential abuse-of-discretion standard. See Gall v.
United States, — U.S. — ,128 S. Ct. 586, 594, 598 (2007). A sentence may be
procedurally or substantively unreasonable. See United States v. Hunt, 459 F.3d
1180, 1182 n. 3 (11th Cir. 2006). Whether the district court adequately identified
the reasons for a variance is one aspect of the procedural reasonableness analysis.
See Gall, 128 S. Ct. at 597 (holding that we “must first ensure that the district court
committed no significant procedural error, such as . . . failing to consider the
§ 3553(a) factors, . . . or failing to adequately explain the chosen sentence”).
6
While the district court must consider the § 3553(a) factors, it is not required
to state explicitly on the record that it has done so, nor is it required to discuss each
of the § 3553(a) factors.3 See United States v. Scott, 426 F.3d 1324, 1329-30 (11th
Cir. 2005). Rather, “an acknowledgment by the district court that it has considered
the defendant’s arguments and the factors in section 3553(a) is sufficient under
Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam);
see also United States v. Ellisor, 522 F.3d 1255, 1278 (11th Cir. 2008) (“We have
rejected the notion that a district court must ‘recite a laundry list of the § 3553(a)
factors’ in order to evince the reasonableness of its sentence.”) (citation omitted).
The transcript of Billups’s sentencing hearing reflects that the district court
properly considered the § 3553(a) factors. The sentencing court correctly
calculated the guidelines range and stated that, in considering the § 3553(a) factors,
it found particularly important “the need to afford or to reflect the seriousness of
this offense and to afford adequate deterrence from criminal conduct and to protect
the public from further crimes of this defendant, who, it appears to me, just doesn’t
3
The § 3553(a) factors the court must consider are: (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 avoid unwanted sentencing disparities; and (10) the
need to provide restitution to the victims. 18 U.S.C. § 3553(a)(1)-(7).
7
see any reason to stop his criminal conduct. He is repeatedly just committing
offenses . . . [a]nd [ ] it’s important that this sentence reflect that[.]” R3 at 8. The
sentencing court further explained that an above-guidelines sentence was
“appropriate considering the factors [ ] just discussed” and in light of the
“consistency of [Billups’s] criminal conduct.” Id. at 9, 13. We are thus satisfied
that the court adequately considered the § 3553(a) factors and that Billups’s
sentence was “the product[] of conscientious deliberation.” See United States v.
Campbell, 491 F.3d 1306, 1316 (11th Cir. 2007).
III. CONCLUSION
Billups appealed the sentence imposed by the district court, arguing that (1)
the court erred in failing to give notice before imposing an above-guidelines
sentence, and (2) the court failed to provide an adequate statement of reasons for
the sentence imposed. Having carefully reviewed the record, we discern no error
in Billups’s sentence. Accordingly, his sentence is AFFIRMED.
8