[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15685 ELEVENTH CIRCUIT
MAY 12, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20516-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEEBLE LLOYD MALCOLM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 12, 2009)
Before DUBINA, CARNES and FAY, Circuit Judges.
PER CURIAM:
Keeble Lloyd Malcolm appeals his 46–month sentence for illegally
reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a).
Malcolm contends that his sentence is procedurally and substantively
unreasonable.
We review the sentence imposed by the district court for reasonableness.
United States v. Williams, 526 F.3d 1312, 1321 (11th Cir. 2008). The Supreme
Court has clarified that the reasonableness standard means review for abuse of
discretion. Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 597 (2007).
“[T]he burden of establishing that the sentence is unreasonable in light of the
record and the § 3553(a) factors lies with the party challenging the sentence.”
Williams, 526 F.3d at 1322.
A sentence may be procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the guidelines, treated the guidelines as
mandatory, failed to consider the § 3553(a) factors, selected a sentence based on
clearly erroneous facts, or failed to adequately explain the chosen sentence. Gall,
128 S. Ct. at 597. The district court is not, however, required to discuss explicitly
its consideration of each of the § 3553(a) factors on the record. Instead, we ask
whether the district court has “considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” United
States v. Pugh, 515 F.3d 1179, 1191 n.8 (11th Cir. 2008); see also Rita v. United
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States, 551 U.S. __, 127 S. Ct. 2456, 2468 (2007).
We consider “the substantive reasonableness of the sentence” under the
totality of the circumstances. Gall, 128 S. Ct. at 597. A sentence is substantively
unreasonable if it is not supported by the § 3553(a) factors. Id. at 600. “The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court.” Williams, 526 F.3d at 1323 (quotation
omitted). Further, we “expect a sentence within the Guidelines to be reasonable.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Here the district court’s sentence is both procedurally and substantively
reasonable. No one disputes that the district court correctly calculated Malcolm’s
guideline sentence range at 46–57 months. The district court did not treat the
guidelines as mandatory. In determining Malcolm’s sentence, the district court
properly considered Malcolm’s background, which included a criminal history of
drug offenses (most recently conspiracy to distribute over 1000 kilograms of
marijuana), in relation to the “relatively minor nature of [his illegal re-entry]
offense.” The district court demonstrated a “reasonable basis” for Malcolm’s
sentence.
The district court further stated that it had considered the § 3553(a) factors
but did not believe that a downward variance was appropriate in this case. Instead,
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the district court concluded that “the total picture of [Malcolm’s] background”
justified a sentence at the low-end of the guidelines range. The district court’s
46–month sentence is reasonable.
AFFIRMED.
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