[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-14975 ELEVENTH CIRCUIT
November 12, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00048-CR-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIECE SIMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 12, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Mariece Sims appeals his 28-year sentence for kidnaping and transporting a
minor across state lines for purposes of prostitution, sex trafficking of children by
force or coercion, transporting a minor across state lines for purposes of
prostitution or sexual activity, transporting a person across state lines for
prostitution or sexual activity, and coercion of a person to travel across state lines
for purposes of prostitution or sexual activity. On appeal, Sims argues his sentence
is unreasonable because the district court failed to adequately consider the
§ 3553(a) factors. Sims contends, for the first time on appeal, the district court
erred in considering acquitted conduct at his resentencing hearing.1
We review the final sentence imposed by the district court for
reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).
The Supreme Court recently clarified that the reasonableness standard is
synonymous with the abuse of discretion standard. Gall v. United States, 128 S.
Ct. 586, 596 (2007). Specifically, the district court must impose a sentence that is
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At the initial sentencing, the district court imposed a sentence of life imprisonment,
stating “the court does have to give you a life sentence in this case so that is what I’m going to
do.” The court further stated, “[i]f I had a choice, I might not give you a life sentence. But I
have to do it under the guidelines.” Sims filed a direct appeal. In United States v. Sims, 161
Fed. Appx. 849 (11th Cir. 2006), this Court held that, in light of United States v. Booker, 125 S.
Ct. 738 (2005), the district court erred because it treated the guidelines as mandatory and, thus,
Sims’s substantial rights were affected. Sims, 161 Fed. Appx. at 853. Accordingly, this Court
vacated Sims’s life sentence and remanded his case for resentencing. Id.
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both procedurally and substantively reasonable. See United States v. Hunt, 459
F.3d 1180, 1182 n.3 (11th Cir. 2006).
The Supreme Court has explained that a sentence may be procedurally
unreasonable if the district court improperly calculates the guideline imprisonment
range, treats the Guidelines as mandatory, fails to consider the appropriate
statutory factors, bases the sentence on clearly erroneous facts, or fails to
adequately explain its reasoning. Gall, 128 S. Ct. at 597. If the sentencing court’s
decision was procedurally sound, then we should “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Id.
Ordinarily, we could expect a sentence within the guideline range to be
reasonable, though such an expectation still has to be measured against the record.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We have stressed that
the district court need not provide a lengthy explanation when imposing a within-
guidelines sentence as long as the record established that the district court
considered the § 3553(a) factors and the parties’ arguments. Agbai, 497 F.3d at
1230. The district court must consider the following § 3553(a) factors to
determine a reasonable sentence:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need
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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 victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). Furthermore, in considering
the guideline factors, the district court need not discuss each of them individually.
Id. 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.” Id. The party challenging the sentence bears the burden of establishing
that it is unreasonable in light of the record and the § 3553(a) factors. Id. at 788.
Finally, when 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. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)
(internal quotations and citations omitted). Furthermore,”[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court[,]” and “[w]e will not substitute our judgment in weighing the
relevant factors because our review is not de novo.” United States v. Williams, 456
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F.3d 1353, 1363 (11th Cir. 2006) (internal citations and quotations omitted),
abrogated on other grounds by Kimbrough v. United States, 128 S. Ct. 558 (2007).
The district court imposed a procedurally reasonable sentence on Sims. See
Hunt, 459 F.3d at 1182 n.3; Gall, 128 S. Ct. at 597. Other than the Government’s
objection for obstruction of justice, neither Sims nor the Government objected to
the guideline calculations before the district court. The sentence imposed falls
within the statutory range of 20 years to life imprisonment, and nothing in the
record indicates that the district court treated the Guidelines as mandatory. To the
contrary, Sims was back before the court for resentencing because the district court
erred in treating the Guidelines as mandatory when it sentencing him to life in
prison at his first sentencing hearing. While the district court never stated that it
had considered the § 3553(a) factors on resentencing, the record demonstrates that
the district court considered the § 3553(a) factors when it determined that 28 years’
imprisonment was a reasonable sentence for Sims.
Sims’s argument that he and codefendant Dwayne Thigpen should have,
pursuant to § 3553(a)(6), received similar sentences is without merit. Section 18
U.S.C. § 3553(a)(6) provides “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct.” See 18 U.S.C. § 3553(a)(6). The record in this case shows that Thigpen
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pled guilty to one count, while Sims chose to take his case to trial. At trial, Sims
was found guilty of five counts. Thus Sims and Thigpen are not defendants who
have been found guilty of similar conduct. Furthermore, we have held that
“[d]isparity between the sentences imposed on codefendants is generally not an
appropriate basis for relief on appeal.” United States v. Regueiro, 240 F.3d 1321,
1325-26 (11th Cir. 2001).
Sims’s sentence is also substantively reasonable. According to the evidence
produced at trial, Sims took Owens, a 16 year-old-girl, from her home in El
Dorado, Arkansas to Mississippi where he and his codefendant raped her. In
addition, while in Mississippi, Sims took Owens to a truck stop, put her out of the
car, and told her to “sell [her]body” and when Owens returned without money,
Sims slapped her in the face and hit her. Sims eventually took Owens to Atlanta
and forced her to repeatedly prostitute herself and to give Sims the money, and
Sims threatened Owens and physically harmed her when she tried to escape from
him or defied his orders. The record demonstrates that the district court had
considered the nature and circumstances of the offense, the seriousness of the
offense, the characteristics of the defendant, and the need to protect society from
future harm. Furthermore, the district court imposed a sentence that was well
below the statutory maximum. The statutory maximum penalty for Count 1 was
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life. 18 U.S.C. § 1201. Sims’s total sentence of 28 years’ imprisonment is far less
than the statutory maximum he could have received. We have found sentences
significantly lower than the statutory maximum to be reasonable. United States v.
Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006) (relying on the fact that a 42-month
sentence was far below the statutory maximum as a sign of reasonableness).
Nothing in the record undermines our ordinary expectation of reasonableness for a
within-guideline-range sentence, and Sims has not established that his sentence is
unreasonable in light of the record and the § 3553(a) factors. See Talley, 431 F.3d
at 788.
We now turn to whether the district court erred in considering acquitted
conduct at Sims’s resentencing hearing. Ordinarily, we review a district court’s
factual findings for clear error and its application of the Guidelines to those facts
de novo. United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006).
However, we review objections to sentencing issues raised for the first time on
appeal for plain error. See United States v. Harness, 180 F.3d 1232, 1234 (11th
Cir. 1999). To prevail under this standard, Sims must show “(1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir. 2005) (internal quotations and citations omitted). “If all
three conditions are met, an appellate court may then exercise its discretion to
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notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quotation and citation
omitted).
Under the advisory Sentencing Guidelines, district courts may consider “not
merely the charged conduct, but rather all ‘relevant conduct,’ in calculating a
defendant’s offense level.” United States v. Hamaker, 455 F.3d 1316, 1336 (11th
Cir. 2006). Relevant conduct includes “both uncharged and acquitted conduct”
and even conduct that takes place outside of a relevant statute of limitations period.
Id. (citing United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996)). A district
court’s determination of relevant conduct is governed by the preponderance of the
evidence standard rather than the more demanding standard of proof beyond a
reasonable doubt. United States v. Hristov, 466 F.3d 949, 954 n.6 (11th Cir. 2006).
Our long-standing precedent directs that “[r]elevant conduct of which a
defendant was acquitted nonetheless may be taken into account in sentencing for
the offense of conviction, as long as the government proves the acquitted conduct
relied upon by a preponderance of the evidence.” United States v. Barakat, 130
F.3d 1448, 1452 (11th Cir. 1997). The Supreme Court explained, in United States
v. Watts, 117 S. Ct. 633, 636 (1997), that “sentencing enhancements do not punish
a defendant for crimes of which he was not convicted, but rather increase his
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sentence because of the manner in which he committed the crime of conviction.”
Therefore, “consideration of information about the defendant’s character and
conduct at sentencing does not result in ‘punishment’ for any offense other than the
one of which the defendant was convicted.” Id. (quotation omitted). In United
States v. Booker, 125 S. Ct. 738, 756 (2005), the Supreme Court held that a jury
must determine beyond a reasonable doubt any fact that increases the sentence of a
defendant over the high end of the Guidelines range. However, we have held that
Booker does not prohibit courts from considering relevant acquitted conduct in an
advisory guidelines system as long as a court does not impose a sentence that
exceeds what is authorized by the jury verdict. United States v. Duncan, 400 F.3d
1297, 1304-05 (11th Cir. 2005). Finally, we have held that precedent set by its
panels binds all subsequent panels and can only be overruled by the Supreme Court
or this Court sitting en banc. United States v. Estupinan, 453 F.3d 1336, 1339
(11th Cir. 2006), cert. denied, 127 S.Ct. 1486 (2007).
The resolution of this issue is determined by our holding in Duncan, 400
F.3d at 1304-05, that acquitted conduct can serve as the basis for a sentence
enhancement in an advisory guidelines system if the conduct is proven by a
preponderance of the evidence. Because our precedent holds that it is not error for
the district court to consider acquitted conduct at sentencing and to do so does not
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violate the Sixth Amendment to the United States Constitution, the district court
did not plainly err when it considered same. See id.
Upon careful review of the record on appeal and consideration of the parties’
briefs, we affirm.
AFFIRMED.
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