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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12346
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-00239-RLV-GGB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYWAN L. WILLIAMS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 28, 2013)
Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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Tywan Williams appeals his 210-month sentence, imposed at the low end of
the applicable guideline range, after a jury convicted him of one count of assault on
an officer, in violation of 18 U.S.C. § 111(a)(1), and one count of assault on an
officer with a deadly or dangerous weapon, in violation of 18 U.S.C. §§ 111(a)(1)
and (b). On appeal, Williams argues that his current sentence, imposed after we
vacated and remanded his earlier sentence for resentencing,1 is procedurally and
substantively unreasonable because the district court (1) engaged in a cursory
discussion of the factors listed in 18 U.S.C. § 3553(a), and (2) failed to consider or
address his post-offense rehabilitation. Finding no reversible error on the part of
the district court, we affirm.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 600
(2007). The party challenging the sentence bears the burden of establishing that
the sentence is unreasonable in light of the record. United States v. De La Cruz
Suarez, 601 F.3d 1202, 1223 (11th Cir. 2010). First, we must determine whether
the district court committed any significant procedural error, including failing to
consider the § 3553(a) factors. United States v. Bradley, 644 F.3d 1213, 1303–04
1
The first sentencing court imposed a downward variance from the advisory guidelines
range of 168 to 210 months, sentencing Williams to 120 months. On appeal we affirmed
Williams’s conviction, but vacated and remanded for resentencing because the district court had
erroneously reduced the sentence for acceptance of responsibility and failed to enhance his
sentence for obstruction of justice. United States v. Williams, 627 F.3d 839, 844–46 (11th Cir.
2008).
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(11th Cir. 2011), cert denied, 132 S. Ct. 2375 (2012). Although the district court
must consider the § 3553(a) factors, it is not required to state on the record that it
has explicitly considered each of the factors or to discuss each one individually.
United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010).
If we find that the sentence is procedurally reasonable, we must then
determine whether the sentence is substantively reasonable under the totality of the
circumstances, including whether the § 3553(a) factors actually support the
sentence at issue. United States v. Barrington, 648 F.3d 1178, 1203 (11th Cir.
2011), cert. denied, 132 S. Ct. 1066 (2012). Generally, we do not second-guess the
weight that the district court gave a certain factor. United States v. Snipes, 611
F.3d 855, 872 (11th Cir. 2010).
We will only reverse a sentence as substantively unreasonable if we are left
with a definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors, such that the sentence at issue falls
outside of the range of reasonable sentences dictated by the facts of the case.
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). Although
there is not an explicit presumption, usually a sentence within the Sentencing
Guidelines range is expected to be reasonable. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005) (per curiam). Moreover, a resentencing court “may
consider evidence of the defendant’s postsentencing rehabilitation and . . . such
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evidence may, in appropriate cases, support a downward variance from the now-
advisory Federal Sentencing Guidelines range.” Pepper v. United States, 131 S.
Ct. 1229, 1236 (2011). However, the resentencing court is not required “to apply
the same percentage departure from the Guidelines range . . . that [was] applied at
[the defendant’s] prior sentencing.” Id.
Here, Williams’s argument that his sentence is procedurally unreasonable is
unfounded. The record clearly indicates that the district court reviewed and
considered the transcript of the initial sentencing hearing, our sentencing remand
opinion, the Presentence Investigation Report, and the sentencing memorandum
that Williams submitted; in light of all of this information, the district court
sentenced Williams at the low end of the guidelines range. The district court also
highlighted the severity of the charges, the fact that this was Williams’s eighteenth
criminal conviction, and that many of his previous crimes included felony
controlled substance offenses and felony crimes of violence. As such, the district
court’s consideration of the nature and circumstances of the offense, Williams’s
criminal history, the characteristics of his previous offenses, and the need to
protect the public are more than sufficient to render Williams’s sentence
procedurally reasonable.
Moreover, Williams does not contest that the appropriate guidelines range is
210 to 262 months, but simply maintains that his sentence is substantively
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unreasonable because the district court did not vary his sentence downward to 120
months, as the previous sentencing court did. Although the initial sentencing judge
may have considered a downward variance appropriate, it is well-settled that
sentencing judges “exercise a wide discretion in the types of evidence they may
consider when imposing [a] sentence.” Pepper, 131 S. Ct. at 1235 (internal
quotation marks omitted). Here, Williams’s resentencing judge properly
considered the § 3553(a) factors. Based on the totality of the circumstances, the
facts of the case, and the range of imprisonment dictated by statute and by the
guidelines, we cannot say that the resentencing court committed “a clear error of
judgment in weighing the § 3553(a) factors,” such that the sentence at issue falls
“outside the range of reasonable sentences dictated by the facts of the case. Irey,
612 F. 3d at 1190. Although the district court was free to consider Williams’s
post-offense rehabilitation, it was in no way required to award a downward
variance in light of that evidence. See Pepper, 131 S. Ct. at 1236. Accordingly,
we affirm.
AFFIRMED.
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