United States v. La Frederic Garfield Colbert

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-10684 ELEVENTH CIRCUIT
December 12, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 05-00297-CR-2-RDP-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LA FREDERIC GARFIELD COLBERT,
a.k.a. La Fredrick Colbert,
a.k.a. Fred,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 12, 2008)

Before ANDERSON, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
La Frederic Garfield Colbert appeals his 135-month concurrent sentences

for conspiracy to possess with the intent to distribute five kilograms or more of a

mixture and substance containing cocaine hydrochloride in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(A), conspiracy to commit money laundering in violation of

18 U.S.C. §§ 1956(h) and 1956(a)(1)(A)(i), and attempt to commit money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). During sentencing, the

district court attributed between 50 to 150 kilograms of cocaine to Colbert. On

appeal, Colbert argues that the district court erred in calculating the drug quantity

used to establish his base offense level and imposed an unreasonable sentence.

We find no error in the district court’s determination of drug quantity during

sentencing. We review the district court’s factual findings for clear error, and the

court’s application of the Sentencing Guidelines to a given set of facts de novo.

United States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001). It is well-settled

after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621

(2005), that, so long as the district court treats the Guidelines as advisory, it may

make additional fact-findings, under a preponderance-of-the-evidence standard,

going beyond the facts found by the jury. United States v. Pope, 461

F.3d 1331, 1335 (11th Cir. 2006). Section 2D1.1 of the Guidelines provides that a

2
defendant’s base offense level for distribution or conspiracy drug offenses is

calculated by determining the quantity of illegal drugs attributable to a defendant.

U.S.S.G. § 2D1.1(a)(3). Pursuant to § 2D1.1(c), a base offense level of 36 is

assigned when a defendant is responsible for at least 50 kilograms and less

than 150 kilograms of cocaine. U.S.S.G. § 2D1.1(c)(2).

Colbert argues that neither the indictment nor the verdict established that he

possessed 50 to 150 kilograms of cocaine beyond a reasonable doubt. However,

the district court properly noted that the guidelines were advisory and made the

finding of drug quantity under a preponderance-of-the-evidence standard.

Colbert also asserts that the district court erred in relying on the self-serving

statements of co-conspirators who testified against Colbert pursuant to a plea

agreement with the government. The district court’s decision to credit the

testimony of co-conspirators is accorded great deference. See United States v.

Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). Here, the court explicitly

considered the credibility of the witnesses during the sentencing hearing and,

nonetheless, determined that it was clear that Colbert was responsible for 50 to

150 kilograms of cocaine. Colbert has not come forward with extrinsic evidence

to contradict this finding. Thus, we find no error.

II.

3
Colbert’s sentence was reasonable. Post-Booker, we review sentences for

reasonableness. See United States v. Ciszkowski, 492 F.3d 1264, 1269-70 (11th

Cir. 2007). Recently, the Supreme Court clarified that courts of appeal, when

reviewing for reasonableness, are to apply the deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 591, 169 L. Ed. 2d

445 (2007). When reviewing a sentence, we must first determine that the “district

court committed no significant procedural error, 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. at ___,

128 S. Ct. at 597. If we conclude that the district court made no procedural errors,

we “should then consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Id.

Review for substantive reasonableness under the abuse-of-discretion

standard involves inquiring whether the factors in § 3553(a) support the sentence

in question. Id. at ___, 128 S. Ct. at 596, 600. “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in [§] 3553(a).” United States v.

4
Talley, 431 F.3d 784, 788 (11th Cir. 2005). The district court need not state on the

record that it has explicitly considered each factor and need not discuss each

factor. Id. at 786. Likewise, a district court is not required to “explicitly articulate

that it ha[s] considered the § 3553(a) factors.” United States v. Dorman, 488

F.3d 936, 944 (11th Cir. 2007). A lengthy discussion is not required in the typical

case, so long as the district court “set[s] forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. ___, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007).

The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for the

sentence (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense, (B) to afford adequate

deterrence to criminal conduct, (C) to protect the public from further crimes by the

defendant, and (D) to provide the defendant with needed educational or vocational

training or medical care, or other correctional treatment in the most effective

manner; (3) the kinds of sentences available; (4) the Sentencing Guidelines range;

(5) pertinent policy statements of the Sentencing Commission; (6) the need to

avoid unwarranted sentencing disparities; and (7) the need to provide restitution to

5
victims. 18 U.S.C. § 3553(a)(1)-(7). We have rejected the notion that a sentence

within the Guidelines is per se reasonable. Talley, 431 F.3d at 787. Even so,

“there is a range of reasonable sentences from which the district court may choose,

and when the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one.” Id. at 788.

Colbert alleges that the district court failed to give equal weight to the 18

U.S.C. § 3553(a) factors in determining his sentences. However, the weight

accorded to the § 3553(a) factors is within the district court’s discretion. See

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). Colbert also

asserts that his sentences were greater than necessary to achieve the goals of

sentencing and maintains that his participation in the conspiracy was minimal.

Further, he notes that his co-conspirators received substantially lower sentences

than himself, including the head of the conspiracy, Karlos Mays.

Upon review of the record and consideration of the parties’ briefs, we

discern no error. Colbert’s sentences were procedurally reasonable because the

district court properly calculated the guideline range and considered the parties’

arguments and the § 3553(a) factors. Colbert also failed to establish that his

sentences, which were at the low end of the guidelines range and well below the

statutory maximums for the offenses, were substantively unreasonable. Although

6
the court acknowledged that Colbert was principally a drug courier and found his

conduct, while substantial criminal activity, to be less culpable than the conduct of

several of his co-conspirators, the court also noted that several of Colbert’s co-

conspirators received downward departures for providing cooperation and

substantial assistance to the government. The court expressly chose a sentence at

the low end of the guidelines range to avoid unwarranted sentencing disparities.

Thus, the district court did not abuse its discretion.

Accordingly, we affirm.

AFFIRMED.