[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 16, 2009
No. 09-11498 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00260-CR-01-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD CHRISTOPHER WHITE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 16, 2009)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Ronald Christopher White appeals his sentence for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g), and possession of an
unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). He alleges
that his sentence was both procedurally and substantively unreasonable. We find
no abuse of discretion and AFFIRM.
I. BACKGROUND
White was indicted in count one for being a convicted felon 1 in knowing
possession of three firearms on 20 May 2008. One of these firearms, an
unregistered modified Remington shotgun, formed the basis for count two. White
admitted at his guilty plea hearing that he knowingly had the firearms in his vehicle
when he was stopped for driving under the influence.2
At the sentencing hearing, White objected to a four-level enhancement in the
presentence investigation report (“PSI”) based on his alleged participation in an
armed robbery and aggravated assault in Savannah, Georgia on 10 May 2008. The
evidence connecting White to the latter crimes included (1) the robbery victim’s
identification of White from a photographic line-up; (2) the recovery of the
victim’s watch and cell phone from White during his 20 May 2008 arrest; and (3) a
1
White was convicted in Florida in 1989 for second degree murder with a firearm,
conspiracy to commit first degree murder, armed robbery with a firearm, and two counts of
armed burglary. He was released from prison in 2006.
2
White initially pled guilty in August 2008 pursuant to a plea agreement, but he later
withdrew his plea based on a misunderstanding concerning sentencing issues. White then
entered a guilty plea without a plea agreement in November 2008.
2
shell casing from the robbery that matched one of the pistols found in White’s
possession on 20 May 2008. Although a warrant for White’s arrest was issued, he
had not been indicted for the Savannah crimes as of his sentencing hearing in
March 2009. The district court overruled White’s objection to the sentencing
enhancement, finding that a preponderance of the evidence showed White
committed the Savannah offenses using a firearm found in his possession on 20
May 2008.
After disposing of the parties’ objections3 , the district court calculated a total
offense level of 28, which yielded a revised guidelines range of 87 to 108 months
of imprisonment. White apologized for his mistakes, and his attorney requested a
downward variance to 51 months based on White’s character, his personal history,
and his conviction for a mere status offense. In response, the government
requested a high-end sentence of 108 months in light of White’s possession of
three loaded firearms, the Savannah incident, and his prior criminal record.
The district court sentenced White on each count to 96 months of
imprisonment and 3 years of supervised release, with the terms to run concurrently.
The court explained that it had considered the factors set forth in 18 U.S.C.
3
The district court also overruled the government’s objection to a two-point reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a), but sustained the government’s objection
to an additional one-point reduction under § 3E1.1(b). R5 at 17.
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§ 3553(a) and determined that a mid-range sentence sufficiently addressed those
factors, including those of deterrence and punishment. The court further
emphasized its consideration of White’s prior homicide conviction, the fact that he
was found in possession of a modified shotgun that could easily be stowed in a bag
with other firearms, the Savannah incident, and the apparent lack of interest among
state authorities in prosecuting White for his role therein.
On appeal, White argues that his sentence is procedurally unreasonable
because the district court utilized unreliable and uncharged information concerning
the Savannah incident to determine his sentence. White also challenges the
substantive reasonableness of his sentence on grounds that his sentence does not
reflect White’s personal characteristics, his difficult childhood, and his attempts to
be a good parent and mentor young people. White suggests that the court focused
unreasonably on punishment and deterrence, to the exclusion of other § 3553(a)
factors.
II. DISCUSSION
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. See United States v. Pugh, 515 F.3d 1179, 1190-91 (11th Cir.
2008). A sentence is procedurally reasonable if the district court consulted,
considered, and properly calculated the Sentencing Guidelines. See id. at 1190. A
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sentence is substantively reasonable if, considering all the circumstances, it
achieves the sentencing purposes of § 3553(a). See id. at 1191. Although a court
must consider all the § 3553(a) factors, it need not discuss each factor
individually.4 See id. at 1191 n.8. We may apply a presumption of reasonableness
to sentences that fall within the guidelines range. See id. at 1190. “‘The fact that
the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.’” Id. (quoting
Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007)). Rather,
4
18 U.S.C. § 3553(a) delineates the following factors for a sentencing court’s
consideration:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed –
(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 of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . .;
(5) any pertinent policy statement . . .;
(6) the need to avoid unwarranted sentence disparities . . .; and
(7) the need to provide restitution to any victim of the offense.
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reversal under the abuse-of-discretion standard requires “a clear error of judgment
in weighing the § 3553(a) factors[.]” Id. at 1191. The onus of demonstrating that a
sentence is unreasonable lies on the party challenging the sentence. See United
States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007) (per curiam).
Section 2K2.1(b)(6) of the Sentencing Guidelines permits a four-level
sentencing increase if a defendant convicted of unlawfully possessing a firearm has
“used or possessed any firearm or ammunition in connection with another felony
offense[.]” U.S.S.G. § 2K2.1(b)(6) (Nov. 2008). “Felony offense” is defined as
“any federal, state, or local offense, other than the explosive or firearms possession
or trafficking offense, punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.”
U.S.S.G. § 2K2.1, comment. (n.14(C)) (emphasis added). Moreover, we have
stated that a court may “consider relevant facts concerning a defendant’s
background, character, and conduct when imposing a reasonable sentence.”
United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (quotation marks and
citation omitted). This includes consideration of a defendant’s uncharged criminal
acts so long as those acts are proved by a preponderance of the evidence. See
United States v. Lindsey, 482 F.3d 1285, 1294-95 (11th Cir. 2007) (concluding
that sentencing court did not abuse its discretion in considering defendant’s alleged
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conspiracy to commit bank robbery); see also 18 U.S.C. § 3661 (“No limitation
shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence.”).
We find no procedural error in the district court’s calculation of White’s
sentence based on its consideration of the Savannah incident. As the record shows,
the district court properly found by a preponderance of the evidence that White
committed the Savannah armed robbery and aggravated assault using a firearm
involved in the instant case. Not only did the Georgia Bureau of Investigation
match a shell casing found at the scene of the Savannah incident to one of the
pistols found in White’s possession, but White was also identified by the victim
and had the victim’s watch and cellular phone. This information was obtained by a
probation officer who interviewed a Savannah police detective. Thus, contrary to
White’s assertion, the information linking him to the incident was reliable and
substantiated by the record. The fact that White had not yet been indicted for the
Savannah offenses did not preclude the court’s consideration of this incident. See
Lindsey, 482 F.3d at 1294. Accordingly, the district court correctly increased
White’s sentence pursuant to U.S.S.G. § 2K2.1(b)(6).
White has also failed to show that his sentence is substantively
7
unreasonable. First, because his sentence fell within the guidelines range, it is
subject to a presumption of reasonableness. See Pugh, 515 F.3d at 1190. Second,
we find no support for White’s assertion that the district court paid little attention
to White’s personal characteristics. A “district court need only acknowledge that it
considered the § 3553(a) factors”; it is not required to explicitly discuss each one.
Amedeo, 487 F.3d at 833 (quotation marks and citation omitted). Here, the district
court satisfied this requirement by expressly stating that it had considered the
various factors in § 3553(a). Although the court did not mention the mitigating
factors suggested by White, such as his difficult upbringing or efforts at reform, the
fact that the court rejected the government’s request to sentence White at the high
end of his guidelines range indicates that the court weighed these factors in
fashioning White’s sentence. See id. (concluding that the court’s failure to discuss
mitigating evidence did not mean that the court erroneously ignored this evidence).
Finally, we disagree with White’s contention that the district court’s concern
with the Savannah incident resulted in a misunderstanding of the instant offense
and an exclusive focus on punishing and deterring White. “The weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the court, and we will not substitute our judgment in weighing the relevant
factors.” Id. at 832 (quotation marks, citation, and brackets omitted). Given
8
White’s criminal history, which included second-degree murder with a firearm and
armed robbery with a firearm, the court did not place undue weight on White’s
similar use of a firearm in the Savannah offenses. Furthermore, the court’s
sentence reflected consideration of other facts, such as White’s prior murder
conviction and his possession of a modified shotgun and other firearms in a gym
bag. These facts pertain to § 3553(a)(1)’s consideration of the history of the
defendant as well as the nature and circumstances of the instant offenses. See 18
U.S.C. § 3553(a)(1). White has not shown that the district court made a clear error
in judgment in weighing the § 3553(a) factors. See Pugh, 515 F.3d at 1191.
Accordingly, we conclude that White’s sentence was reasonable.
III. CONCLUSION
Based on the foregoing, we find no abuse of discretion in White’s sentence.
The district court committed no procedural error in enhancing White’s sentence
based on his uncharged conduct in Savannah. The court also properly weighed the
§ 3553(a) factors and imposed a reasonable sentence in the middle of White’s
advisory guidelines range. We therefore AFFIRM White’s judgment of conviction
and sentence.
AFFIRMED.
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