[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 06-15725 ELEVENTH CIRCUIT
DECEMBER 22, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-20566-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIONEL GALLIMORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 22, 2008)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Lionel Gallimore appeals his 210-month sentence for conspiring to import
five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952(a), 963, and
960(b)(1) (Count 1); attempting to import cocaine, in violation of 21 U.S.C.
§§ 952(a), 963, and 960(b)(1), and 18 U.S.C. § 2 (Count 2); conspiring to possess
with the intent to distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846, and 841(b)(1)(A) (Count 3); and, attempting to posses
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and
841(b)(1)(A) and 18 U.S.C. § 2 (Count 4).
Gallimore argues that the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) requires that any fact that increases
the penalty for a crime beyond the statutory maximum be charged in the indictment
and proved beyond a reasonable doubt. He asserts that increasing a defendant’s
sentence on the basis of facts that were not proven to a jury beyond a reasonable
doubt violates a defendant’s Sixth Amendment right to a trial by jury. Gallimore
contends that the relevant “statutory maximum” for Apprendi purposes is the
highest Guideline-range sentence based on facts proven to a jury beyond a
reasonable doubt or admitted to by the defendant. Thus, he asserts that the district
court erred by holding him responsible for 58.95 kilograms of cocaine, and thereby
increasing his base offense level, because this amount was not charged in the
indictment or found by a jury.
2
Since Booker, we have held that a district court may apply extra-verdict
enhancements based on facts it finds by a preponderance of the evidence, as long
as it applies the Guidelines in an advisory fashion. United States v. Booker, 543
U.S. 220, 244, 125 S. Ct. 738, 756 (2005). See United States v. Chau, 426 F.3d
1318, 1324 (11th Cir. 2005) (per curiam) (holding that, although “[t]he court did
find by a preponderance of the evidence, facts that went beyond the letter of the
charges contained in the indictment . . . [i]t was okay for the court to do that
because it applied the guidelines in an advisory way”). Furthermore, Apprendi
requires only facts which increase the penalty for a crime “beyond the prescribed
statutory maximum” to be proven to a jury beyond a reasonable doubt. Apprendi,
530 U.S. at 490, 120 S. Ct. at 2362-63; see Blakely v. Washington, 542 U.S. 296,
303, 124 S. Ct. 2531, 2537 (2004) (“[T]he ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.”).
Here, Gallimore was convicted of attempt and conspiracy to import five
kilograms or more of cocaine, and attempt and conspiracy to possess five
kilograms or more of cocaine, pursuant to 21 U.S.C. § 952 and 21 U.S.C. § 846.
The statutory maximum for each of these sentences is life imprisonment. See 21
U.S.C. § 960(b)(1); 21 U.S.C. § 841(b)(1)(A). Gallimore was sentenced to 210
3
months of imprisonment, which is well under the statutory maximum penalty.
Thus, Apprendi and its progeny do not require the drug amount to be proven
beyond a reasonable doubt.
Moreover, Gallimore stipulated at trial that the duffel bags he conspired to
retrieve contained 58.95 kilograms of cocaine. As such, the district court met its
preponderance of the evidence burden. The district court imposed its sentence
under an advisory Guideline system, and its use of extra-verdict factual findings
was not improper. Gallimore has failed to establish that the district court erred by
sentencing him based on 58.95 kilograms of cocaine.
In addition to challenging his sentence based on drug quantity, Gallimore
argues that his sentence is unreasonable because the district court failed to properly
consider factors supporting a sentence below the Guideline range. Gallimore
asserts that several factors, independent of the Guideline range calculations,
warranted a sentence lower than the one he received. For example, he contends
that his criminal history category over-represents his prior crimes, warranting a
lower sentence.
We review the final sentence imposed by the district court for
reasonableness. Booker, 543 U.S. at 264, 125 S. Ct. at 767. Specifically, the
district court must impose a sentence that is both procedurally and substantively
4
reasonable. Gall v. United States, 128 S. Ct. 586, 597 (2007). After Booker, we
established a two-step process for district courts to use in sentencing: first, the
district court must consult the Sentencing Guidelines and correctly calculate the
sentencing range; second, the district court must consider the factors listed in 18
U.S.C. § 3553(a) in arriving at a reasonable sentence. United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005) (per curiam). We may not review the lower court’s
discretionary decision not to apply a downward departure, unless the district court
failed to recognize its authority to depart downward. United States v. Winingear,
422 F.3d 1241, 1245-46 (11th Cir. 2005) (per curiam).
A sentence may be procedurally unreasonable if the district court improperly
calculates the Guideline 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 adequately explain the chosen
sentence. Gall, 128 S. Ct. at 597. After we have determined that the sentence is
procedurally sound, Gall directs that we 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 whether the § 3553(a) factors support the sentence in question. Id. at
597-600. In its consideration of the § 3553(a) factors, the district court does not
5
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 1229-30.
Pursuant to § 3553(a), the sentencing court “shall impose a sentence
sufficient, but not greater than necessary” 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). The sentencing court must also consider the following factors in
determining a particular sentence: the nature and circumstances of the offense and
the history and characteristics of the defendant, the kind of sentences available, the
Guideline 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), we may apply a presumption of reasonableness to a district court
sentence imposed within the Guideline range. Rita v. United States, 127 S. Ct.
2456, 2467-68 (2007). Nevertheless, we do not apply a presumption of
6
reasonableness to a sentence that is within the properly calculated Guideline range.
See United States v. Campbell, 491 F.3d 1306, 1313-14 & 1314 n.8 (11th Cir.
2007). Instead, we ordinarily expect a sentence within the Guideline 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) (per curiam).
The district court correctly calculated the applicable Guideline range. The
district court also considered the § 3553(a) factors, including Gallimore’s family
circumstances and personal characteristics. The district court also specifically
recognized the seriousness of Gallimore’s offense and the need to provide
deterrence and just punishment, particularly in light of his history of drug related
criminal activity. We conclude that the district court did not abuse its discretion
when sentencing Gallimore.
The sentence imposed by the district court was procedurally reasonable
because the district court correctly calculated the Guideline range and considered
the sentencing factors set forth in § 3553(a). The sentence was also substantively
reasonable in light of Gallimore’s criminal history, failure to accept responsibility,
and previous lenient sentences. Furthermore, to the extent that Gallimore’s
argument regarding the over-representative nature of his criminal history
7
challenges the lack of a downward departure, we will not review the lack of a
departure because the district court recognized its authority to grant such a
departure.
CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm Gallimore’s 210-month sentence.
AFFIRMED.
8