[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16189 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 4, 2009
________________________ THOMAS K. KAHN
D.C. Docket No. 07-00008-CR-6 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN MAURICE BEASLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(June 4, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
The district court sentenced Kelvin Maurice Beasley to prison for a term of
218 months on a plea of guilty, made pursuant to a plea agreement, to one count of
conspiracy to possess with intent to distribute five grams or more of crack cocaine
and cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a). See 21 U.S.C. §
846. He appeals the sentence, arguing that it is (1) procedurally unreasonable
because the district court failed to consider his minor role in the offense and
impermissibly took into account a gun and body armor found at his home, and (2)
substantively unreasonable because his role in the crime was less than that of his
co-conspirator.1
Our reasonableness reviews consist of two steps. United States v. Pugh, 515
F.3d 1179, 1190 (11th Cir. 2008). First, we determine whether the district court
committed a significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines sentence range, treating the Guidelines as mandatory,
failing to consider the sentencing factors of 18 U.S.C. § 3553(a), 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
sentence range. Id. (quoting Gall v. United States, 552 U.S. ----, 128 S.Ct. 586,
597, 169 L.Ed.2d 445 (2007)).
Second, if the district court did not commit a procedural error, we consider
the “substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,” based on the “totality of the circumstances.” Id.
1
Beasley does not expressly argue in his brief that his sentence was calculated
improperly or that he was improperly denied a minor or minimal role reduction. Accordingly, we
deem any claim in this respect to be waived. United States v. Jernigan, 341 F.3d 1273, 1283 n. 8
(11th Cir. 2003).
2
(quoting Gall, 552 U.S. at —, 128 S.Ct. at 597). We “may find that a district court
has abused its considerable discretion if it has weighed the factors in a manner that
demonstrably yields an unreasonable sentence.” Pugh, 515 F.3d at 1191. In other
words, if the district court made a clear error in judgment in weighing the
sentencing factors, we remand the case for resentencing. Id. While a sentence
within the Guidelines sentence range is not entitled to a presumption of
reasonableness, we "ordinarily would expect a sentence within the Guidelines
range to be reasonable." United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
The district court did not abuse its discretion in imposing the sentence in this
case. It correctly applied the sentencing procedures and did not consider any
impermissible factors. Further, it gave due consideration to the characteristics of
the offense and the defendant’s status as a career offender and thus imposed a
substantively reasonable sentence.
AFFIRMED.
3