United States v. Lawrence Smith

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 16, 2008
No. 08-10515 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-00019-CR-FTM-29-DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAWRENCE SMITH,

Defendant-Appellant.

________________________

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

(October 16, 2008)

Before ANDERSON, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Lawrence Smith appeals his 235-month sentence, imposed
following his conviction for possession with intent to distribute 5 grams or more of

crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). On appeal,

Smith argues that the district court imposed an unreasonable sentence in light of

the factors in 18 U.S.C. § 3553(a) and because the court strictly applied the career

offender provision in U.S.S.G. § 4B1.1.

We review the final sentence imposed by the district court for

reasonableness. United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767,

160 L. Ed. 2d 621 (2005); United States v. Crawford, 407 F.3d 1174, 1179 (11th

Cir. 2005). Specifically, the district court must impose a sentence that is both

procedurally and substantively reasonable. Gall v. United States, 552 U.S. ___,

___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). A sentence may be

procedurally unreasonable if the district court improperly calculates the guidelines

range, treats the Sentencing Guidelines as mandatory rather than advisory, fails to

consider the appropriate statutory factors, selects a sentence based on clearly

erroneous facts, or fails to explain adequately the chosen sentence. After an

appellate court has determined that the sentence is procedurally sound, Gall directs

that the appellate court review the substantive reasonableness of a sentence under

an abuse-of-discretion standard. Id. The review for substantive reasonableness

involves examining the totality of the circumstances, including an inquiry into

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whether the statutory factors in § 3553(a) support the sentence in question. Id. at

___, 128 S. Ct. at 597-600.

In its consideration of the § 3553(a) factors, the district court does not need

to discuss or state each factor explicitly. United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005). Instead, an acknowledgment by the district court that it has

considered the defendant’s arguments and the § 3553(a) factors will suffice. Id. at

1330. We will defer to the judgment of the district court in the weight given to the

§ 3553(a) factors unless the district court has made “a clear error of judgment” and

has imposed “a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th

Cir. 2007) (quotation omitted).

Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection,” namely to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from future crimes of the defendant, and provide the

defendant with needed educational or vocational training or medical care. See 18

U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors

in determining a particular sentence: the nature and circumstances of the offense

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and the history and characteristics of the defendant, the kinds of sentences

available, the guidelines range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

The Supreme Court has held that, in reviewing sentences for reasonableness

under § 3553(a), a federal appellate court may apply a presumption of

reasonableness to a district court sentence imposed within the guidelines range.

Rita v. United States, 551 U.S. ___, ___, 127 S. Ct. 2456, 2462, 168 L. Ed. 2d 203

(2007). Nevertheless, we do not apply a presumption of reasonableness to a

sentence that is within the properly calculated guidelines range. See United States

v. Campbell, 491 F.3d 1306, 1313-14 & n.8 (11th Cir. 2007). Instead, we

ordinarily expect a sentence within the guidelines range to be reasonable, and the

appellant has the burden of establishing that the sentence is unreasonable in light of

the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005).

We conclude from the record that Smith cannot show that his sentence was

unreasonable because he did not challenge the calculation of his guideline range

and the district court properly considered all the factors in 18 U.S.C. § 3553(a) and

imposed a sentence at the lowest point in his guideline range that was supported by

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the § 3553(a) factors. Accordingly, we affirm Smith’s sentence.

AFFIRMED.

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