[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 22, 2010
No. 09-14077 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00122-CR-T-24-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN GEORGE COOPER,
a.k.a. Wayne Williams,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 22, 2010)
Before DUBINA, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Edwin George Cooper appeals his 30-month sentence imposed
after pleading guilty to one count of illegal reentry into the United States after
deportation for a felony, in violation of 8 U.S.C. § 1326(a) and (b). On appeal, he
argues that his upward-variant sentence is procedurally and substantively
unreasonable. He also argues, and the government concedes, that the judgment
improperly reflects that he was convicted of illegal reentry after deportation for an
aggravated felony.
I. Procedural Reasonableness
Cooper argues that his sentence was procedurally unreasonable because the
district court expressly refused to consider some potentially mitigating § 3553(a)
factors. He asserts the court placed sole weight on one factor: his previous illegal
reentry conviction. He argues that the guideline enhancement he received under
§ 2L1.2(b)(1)(D), for deportation subsequent to a felony conviction, accounted for
his previous illegal entries. He also argues that the court failed to provide an
adequate explanation for the upward variance. He further argues that our
precedent, in which we held that a district court need only acknowledge
consideration of the defendant’s arguments and the 3553(a) factors, conflicts with
other circuits.
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We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We
must “first ensure 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.
The sentencing court shall impose a sentence “sufficient, but not greater than
necessary” to comply with the purposes of sentencing listed in § 3553(a)(2),
namely 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 criminal conduct by the defendant, and provide the defendant with
needed educational or vocational training or medical care. 18 U.S.C. § 3553(a)(2).
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 kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
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restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7). The district court need
not discuss each factor; rather an acknowledgment “that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient under
Booker1 .” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Not every
case requires a full opinion or a response to every argument. Rita v. United States,
551 U.S. 338, 356-57, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007). Rather,
“[t]he sentencing judge should set 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.” Id. at 356, 127 S. Ct. at 2468.
In determining a reasonable sentence, the district court may consider facts
that have already been taken into account in calculating the defendant’s guideline
range. See United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir. 2008) (as
part of history and characteristics of the defendant, district court could consider
defendant’s prior offenses in deciding to impose an upward variance, even though
those offenses were already included in the defendant’s criminal history score); 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
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
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offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence”).
The record belies Cooper’s contention that the court failed to adequately
consider the § 3553(a) factors and did not explain its rationale for the variance.
The court specifically noted its consideration of all the § 3553(a) factors.
Additionally, the court’s comments at sentencing, as well as the arguments that it
heard, demonstrate the court’s consideration of many pertinent § 3553(a) factors.
Although the court’s nine-month variance above the high end of Cooper’s
guideline range was significant, the district court’s consideration of many of the
§ 3553(a) factors and its statements that the sentence was sufficient, but not greater
than necessary, serve as sufficient justification. See Gall, 552 U.S. at 50, 128 S.Ct.
at 597 (holding that if a court “decides that an outside-Guidelines sentence is
warranted, [it] must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance”). The
record also demonstrates that the court considered the 3553(a) factors, “considered
the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita, 551 U.S. at 356, 127 S. Ct. at 2468; see also
Talley, 431 F.3d at 786 (holding that it is sufficient for a court to acknowledge its
consideration of the parties’ arguments and the 3553(a) factors). Regarding
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Cooper’s argument that the court considered facts that were taken into account
when calculating his guideline range, we have held that a court may properly do so.
See Williams, 526 F.3d at 1324. Thus, we conclude from the record that Cooper’s
sentence is not procedurally unreasonable.
II. Substantive Reasonableness
Cooper also argues that his sentence was substantively unreasonable because
(1) the sentence was greater than necessary to achieve the purposes of sentencing;
and (2) the court engaged in “quintuple counting” in determining his sentence.
The reasonableness standard of review announced in Booker requires
appellate courts to review the ultimate sentence imposed under a “deferential
abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct. at 591. In
reviewing the ultimate sentence imposed by the district court for reasonableness,
we consider the sentence in light of the § 3553(a) factors. United States v. Thomas,
446 F.3d 1348, 1351 (11th Cir. 2006). The district court has discretion to
determine the weight that should be given to each factor. United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007). However, we may find that the district court
has abused its discretion if the weight it gives to the factors yields an unreasonable
sentence. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The
burden of establishing that the sentence is unreasonable in light of the record and
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the § 3553(a) factors lies with the party challenging the sentence. Talley, 431 F.3d
at 788.
We conclude from the record that the district court considered the § 3553(a)
factors and sentenced Cooper to 30 months’ imprisonment, which was well within
his total statutory range of 0 to 10 years’ imprisonment. See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (concluding that the sentence was
reasonable in part because it was well below the statutory maximum), cert. denied,
129 S.Ct. 2848 (2009). Although the district court imposed an upward variance,
the court provided a thorough rationale for which such a sentence was necessary
and found that the 60-month total sentence was “sufficient but not greater than
necessary to comply with the statutory purposes of the sentencing.” Given the
facts of this case, which includes the failure of a previous short sentence to deter
him, Cooper has not provided any compelling argument that the court abused its
discretion when weighing the sentencing factors. See Clay, 483 F.3d at 743
(district court has discretion to determine weight given to each factor). Thus, we
conclude that Cooper has failed to show that the court abused its discretion when
sentencing him.
III. Clerical Error in the Judgment
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Cooper argues that the judgment improperly reflects that he was convicted
of illegal reentry after deportation for an aggravated felony, in violation of
8 U.S.C. § 1326(a) and (b)(2), when he was actually convicted of illegal reentry
after deportation for a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1).
“We may sua sponte raise the issue of clerical errors in the judgment and
remand with instructions that the district court correct the errors.” United States v.
Massey, 443 F.3d 814, 822 (11th Cir. 2006).
While we affirm the district court’s 60-month sentence, the order of
judgment erroneously references 8 U.S.C. § 1326(b)(2), which criminalizes illegal
reentry after deportation for an aggravated felony and carries a 20-year statutory
maximum, rather than § 1326(b)(1), which carries a 10-year statutory maximum.
Thus, we vacate and remand for the limited purpose of correcting this clerical
error. See Massey, 443 F.3d at 822.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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