[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 20, 2008
No. 08-12689 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00026-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIEL SHARMEL LEEKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 20, 2008)
Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Martiel Sharmel Leeks was indicted on three counts of acquiring
firearms by knowingly making false and fictitious written statements to federally
licensed firearms dealers, in violation of 18 U.S.C. § 922(a)(6). These charges
stemmed from three transactions in which Leeks purchased eight firearms from
federal firearms licensees. In each transaction, Leeks completed a Bureau of
Alcohol, Tobacco, and Firearms Form 4473, in which he indicated that he was the
actual buyer of the firearms listed on the form. Subsequent events and
investigation revealed that this information was false and that the firearms were
later illegally transferred to other parties. Three of the guns were ultimately
recovered by law enforcement: the first after a suicide in Virginia; the second
during an arrest for delivery of crack cocaine in New York; and the third at the
home of a convicted felon in New York.
On January 24, 2008, Leeks pleaded guilty to one count of the indictment.
The sentencing hearing was held on May 6, 2008. At the hearing, the district court
reviewed the Presentence Investigation Report (“PSI”).1 Neither party objected to
the portion of the PSI that identified an offense level of 17 2 and criminal history
1
The facts in the PSI are deemed admitted because Leeks pleaded guilty and made no
factual objections to the PSI. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
2
The base offense level was 12, U.S. Sentencing Guidelines Manual (“U.S.S.G.”) §
2K2.1(a)(7) (2007), plus 4 levels for eight firearms involved, id. at § 2K2.1(b)(1)(B), plus 4
levels for trafficking in firearms, id. at § 2K2.1(b)(5), minus 3 levels for acceptance of
responsibility, id. at § 3E1.1.
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category of III,3 which resulted in a guideline range of 30 to 37 months
imprisonment. Leeks did object, however, to the portion of the PSI in which the
probation officer recommended an upward departure to 51 months imprisonment,
pursuant to U.S.S.G. § 4A1.3, because Leeks’ criminal history category
“substantially under-represented the seriousness of the defendant’s criminal
history, and particularly the likelihood that he will commit future crimes.”
Defense counsel acknowledged that Leeks had been convicted of ten other
crimes, but only three of them were assigned criminal history points. She argued
that the convictions that did not receive points should not be considered by the
district court for two reasons: (1) consideration of these convictions would violate
Alabama v. Shelton, 535 U.S. 654 (2002), as they were obtained without the aid of
counsel; and (2) these crimes involved minor misdemeanors and traffic offenses.
Leeks, his mother, and a woman with whom he has a daughter thereafter testified
as to Leeks’ rehabilitation and good relationship with his family.
The government agreed that the district court should not assign criminal
history points for convictions that were unconstitutionally obtained, but argued that
it could look at Leeks’ prior conduct to show a high risk of recidivism. The
3
Leeks received a total of 5 criminal history points for two misdemeanor convictions for
possession of less than one ounce of marijuana and one felony conviction for possession of
cocaine and MDMA (aka ecstacy).
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government argued that the convictions that did not result in criminal history
points painted the true picture of Leeks: one of a repeat offender. The probation
officer told the district court that the records for these convictions could not be
obtained, and thus it could not be verified whether Leeks did or did not have
counsel during those proceedings. She stated that by virtue of the inability to
include these convictions in determining Leeks’ criminal history, “he was spared a
total of ten criminal history points.” She also took issue with defense counsel’s
characterization of Leeks’ crimes as minor, noting that one of these crimes
involved, inter alia, fleeing from the police while an unrestrained toddler was in the
car. She noted that the crimes for which points were assigned, including felony
possession of cocaine and MDMA, did not tell the full story of Leeks’ criminal
activity because other charges were dropped after a plea agreement was procured,
including charges related to Leeks’ possession of marijuana and a gun at the time
of the arrest.
The district court ultimately imposed a sentence of 48 months imprisonment,
3 years supervised release, a $2,400 fine, and a $100 special assessment. In doing
so, the court acknowledged the 30 to 37 month guideline sentence range and that it
did not consider the allegedly uncounseled convictions in determining Leeks’
criminal history, but stated that these convictions did nonetheless “show[]
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continual misbehavior and criminal conduct.” The court emphasized that Leeks’
arrest record indicated a pattern of criminal conduct, beginning at age 17 and
continuing to his then present age of 27. The district court noted that Leeks’
record indicated that he “does not look as if [he has] been very interested in living
within the confines of the law.” The district court listened to Leeks’ witnesses who
testified that despite his past indiscretions, Leeks had matured. The court
disagreed, however, noting that Leeks’ most recent crime was the possession of
cocaine and MDMA, evidencing that he had recently “graduated from
misdemeanors into felonies.”
The district court also discussed the distinct circumstances of this case. The
guns that were recovered had fallen into the hands of criminals and were used for
the purposes of criminal activity. The court noted that five guns were still
unaccounted for and “people who are otherwise law abiding will in all likelihood
suffer.” Lastly, the court pointed out that there was very little evidence in Leeks’
record of legitimately earned income, positing that Leeks might support himself
through ill-gotten gains.
Leeks now appeals his sentence, arguing that its imposition was procedurally
unreasonable.4
4
Leeks’ brief only raises issues of procedural reasonableness, not substantive
reasonableness. Therefore, our review is limited to this issue. See Dalrymple v. United States,
5
I.
At the outset, this court must determine whether the district court’s deviation
from the Guidelines sentencing range represents an upward departure, under
U.S.S.G. § 4A1.3(a), or a variance, under 18 U.S.C. § 3553(a). Although either
section can be used by a district court in concluding whether to deviate from the
Guidelines range, they require the consideration of different factors. See United
States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006).
Based on a review of the record and applicable factors, we conclude that the
district court imposed a variance under 18 U.S.C. § 3553(a). First, in the
“Statement of Reasons,” which was issued by the court on the date of sentencing,
the court checked boxes under a section entitled “Reason(s) for Sentence Outside
the Advisory Guideline System,” indicating that it relied upon three § 3553(a)
factors in deviating from the Guidelines range. Notably, it did not check any boxes
under another section entitled “Reason(s) for Departure,” which included “4A1.3
Criminal History Inadequacy.” Second, although the district court did not
expressly reference § 3553(a) at sentencing, a review of the record indicates that its
analysis focused upon § 3553(a) factors, such as the nature and circumstances of
the offense and the need for the sentence imposed to reflect the seriousness of the
460 F.3d 1318, 1324 n.6 (11th Cir. 2006) (issues not raised in an appellant’s initial brief are
abandoned).
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offense. The district court’s application of these factors is discussed below.
II.
We review the procedural reasonableness of a district court’s sentence for
abuse of discretion. Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007).
The party challenging the sentence has the burden of establishing
unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Although the Sentencing Guidelines are no longer considered mandatory, they
must be consulted and considered by the district court. United States v. Booker,
543 U.S. 220, 264 (2005). The Supreme Court has explained that our review of the
procedural reasonableness of a district court’s sentencing decision should focus
upon considerations “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 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.
Both parties agree that Guidelines range was properly calculated and was
considered by the district court. Leeks contends, however, that the district court
subsequently erred in granting a variance from the Guidelines range. Leeks argues
that the court did not consider all of the § 3553(a) factors, its analysis included an
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overemphasized and inaccurate categorization of Leeks’ criminal history, and it
impermissibly considered the circumstances surrounding the instant offense for
which Leeks was being sentenced.
Section 3553(a) includes a list of factors which a court should consider
before granting a variance:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
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 from further crimes of
the defendant; ” (5) the need to provide the defendant with 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
unwarranted sentencing disparities; and (10) the need to provide
restitution to victims.
Irizarry, 458 F.3d at 1211 n.2. The weight given to particular sentencing factors is
committed to the sound discretion of the district court. United States v. Clay, 483
F.3d 739, 743 (11th Cir. 2007).
In this case, the district court’s “Statement of Reasons” indicates, and the
record confirms, that it chiefly relied on three § 3553(a) factors in choosing to
impose a sentence greater than that of the Guidelines range: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to reflect the seriousness of the offense, to
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promote respect for the law, and to provide just punishment for the offense; and (3)
the need to protect the public from further crimes of the defendant. We have held
that when considering a variance, a district court need not “state on the record that
it has explicitly considered each of the § 3553(a) factors or [] discuss each of the
§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Although uncounseled convictions may not be used to compute a
defendant’s criminal history category, United States v. Gray, 367 F.3d 1263, 1273
(11th Cir. 2004), they may be used to determine the defendant’s character. United
States v. Peagler, 847 F.2d 756, 758 (11th Cir. 1988). Leeks has ten convictions,
three of which are for drugs offenses involving possession of three types of drugs.
Leeks has enabled guns to fall into the hands of felons and drug dealers and has
almost no legitimate income. The district court therefore did not abuse its
discretion in concluding that Leeks’ “criminal activity has been consistent for
many years,” “his arrest[s] have increased in frequency and severity over time,”
and he “has not demonstrated at this point that he is anything but a drug dealer.”
The district court’s consideration of the circumstances surrounding the crime
for which it sentenced him were also proper. Leeks argues that the Guidelines
range already reflected the circumstances of this case, and that a variance based on
consideration of these facts essentially results in double-counting. This position,
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however, is undermined by both the purpose of the Sentencing Guidelines and the
text of § 3553. The Supreme Court’s holding that the Sentencing Guidelines are
no longer mandatory, as articulated in Booker, reflects the understanding that
although the Guidelines estimate a reasonable sentence, they cannot account for the
individual particularities of each case. See Booker, 543 U.S. at 264-65 (treating
the Guidelines as advisory helps “to avoid excessive sentencing disparities while
maintaining flexibility sufficient to individualize sentences where necessary”).
Moreover, the text of § 3553 specifically mandates that in reaching a sentence that
is “sufficient, but not greater than necessary,” the court should consider factors
such as the circumstances and seriousness of the offense. 18 U.S.C. § 3553(a). In
concluding that a variance was warranted, the district court did not abuse its
discretion in considering that Leeks’ crime involved three separate unlawful
purchases. It noted that the guns procured in these transactions have fallen into the
hands of felons, have been used during the commission of crimes, and have already
resulted in one death. The district court also noted that the public may later be
harmed by Leeks’ crime because five other guns are yet to be recovered and may
be used to harm others.
For the aforementioned reasons, we find that the district court did not abuse
its discretion in imposing a variant sentence.
AFFIRMED.
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