Case: 12-13152 Date Filed: 06/13/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13152
Non-Argument Calendar
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D.C. Docket No. 8:11-CR-00463-EAK-TGW-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARYL CHARLES GLEASON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 13, 2013)
Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.
PER CURIAM:
Daryl Charles Gleason appeals his 151-month sentence for conspiracy to
manufacture and distribute methamphetamine. After review, we affirm.
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In 2011, the Plant City Police Department received citizen complaints that
one of the residences in the area was being used for the manufacture and sale of
methamphetamine. Those complaints were proven correct after law enforcement
officials conducted surveillance of that residence and found several items in the
trash that are commonly used for manufacturing methamphetamine. Eventually,
the Drug Enforcement Administration and the Plant City Police Department
executed a search warrant at the residence and found methamphetamine, lab
equipment, and numerous hazardous chemicals. Mr. Gleason was also found asleep
in one of the bedrooms.
On March 22, 2012, Mr. Gleason pled guilty to conspiracy to manufacture
and distribute methamphetamine in violation of 21 U.S.C. § 846. Due to his prior
criminal history, Mr. Gleason’s advisory range under the Sentencing Guidelines
was 151-188 months’ imprisonment. Mr. Gleason requested that the district
impose a 60-month sentence. At Mr. Gleason’s sentencing hearing, the district
court imposed a sentence of 151 months’ imprisonment and explained that the
sentence was based, in large measure, upon the danger to the community posed by
operating a methamphetamine laboratory with highly combustible materials in a
residential neighborhood.
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On appeal, Mr. Gleason argues that his 151-month sentence is procedurally
unreasonable because the Sentencing Guidelines’ drug quantity tables are
inherently flawed with respect to methamphetamine and the district court did not
provide a sufficient explanation for its decision.1 We review the procedural
reasonableness of a sentence for abuse of discretion, see Gall v. United States, 552
U.S. 38, 51, 128 S. Ct. 586, 597 (2007), and we conclude that neither of Mr.
Gleason’s arguments established an abuse of discretion.
First, Mr. Gleason argues that reliance on the Sentencing Guidelines for
methamphetamine offenses is inherently unreasonable because the guideline
ranges for those offenses have increased considerably without any empirical basis.
He does not, however, point to any case law, from this court or elsewhere,
suggesting that a district court is required to find certain guidelines per se
unreasonable based upon an alleged lack of empirical support. 2 We have certainly
never held that to be the case. See United States v. Snipes, 611 F.3d 855, 870 (11th
Cir. 2010) (“[T]he absence of empirical evidence is not an independent ground that
compels the invalidation of a guideline.”). Notably, other circuits have not done so
1
Mr. Gleason also argues that his sentence is substantively unreasonable, but he does so
for the first time in his reply brief. As a result, we will not consider that argument. See United
States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[A]rguments raised for the first time in a
reply brief are not properly before a reviewing court.”).
2
We recognize that the Supreme Court held that a district court may consider whether a
particular sentencing guideline has an empirical basis when exercising its discretion during
sentencing. See Kimbrough v. United States, 552 U.S. 85, 108-10, 128 S.Ct. 558, 574-75 (2007).
But Kimbrough in no way suggests that a district court must do so lest it abuse its discretion.
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either. See, e.g., United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009) (“In appropriate cases, district courts certainly may disagree with the
Guidelines for policy reasons and may adjust a sentence accordingly. But if they
do not, we will not second-guess their decisions under a more lenient standard
simply because the particular Guideline is not empirically-based.”); United States
v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (“Because the discretion to vary
under Kimbrough is not tantamount to an obligation to do so, . . . the appellant's
claim of error founders.”); United States v. Huffstatler, 571 F.3d 620, 624 (7th Cir.
2009) (“[W]hile district courts perhaps have the freedom to sentence below the
[sentencing] guidelines based on disagreement with the guidelines, . . . they are
certainly not required to do so.”); United States v. Battiest, 553 F.3d 1132, 1137
(8th Cir. 2009) (“We have recognized, however, that Kimbrough did not mandate
that district courts consider [a guideline’s empirical support (or lack thereof)] and
do not “act [ ] unreasonably, abuse[ ] [their] discretion, or otherwise commit[ ]
error” if they do not.”). Therefore, we find no basis to conclude that the district
court abused its discretion when it imposed a within-guidelines sentence despite
Mr. Gleason’s argument that the sentencing guidelines for methamphetamine lack
empirical support. Cf. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)
(“Although we do not automatically presume a sentence within the guidelines
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range is reasonable, we “ordinarily ... expect a sentence within the Guidelines
range to be reasonable.”)
Second, Mr. Gleason argues that the district court failed to explain why it
issued a 151-month sentence because it did nothing more than “recite the facts of
the case” and did not specifically respond to his arguments. Initial Br. at 25. We
disagree, and find that the record reflects that the district court sufficiently
explained its reasoning and adequately considered the 18 U.S.C. § 3553(a) factors.
As an initial matter, the district court expressly acknowledged that it
considered all of the § 3553(a) factors. See D.E. 103 at 25. See also United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (holding that an acknowledgment by
the district court that it considered the factors set forth in § 3553(a) is generally
sufficient). The record also makes clear that the district court listened to the
arguments made by Mr. Gleason. See D.E. 103 at 3, 22. Although we acknowledge
that the district court could have said more in response to those arguments, we do
not find that it was required to specifically respond to each of them in light of its
ultimate explanation for Mr. Gleason’s sentence. See Rita v. United States, 551
U.S. 338, 356, 127 S.Ct. 2456, 2468 (2007) (“The appropriateness of brevity or
length, conciseness or detail, when to write, what to say, depends upon
circumstances. Sometimes a judicial opinion responds to every argument;
sometimes it does not[.]”).
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In this case, the district court stated that, in determining the sentence, it
could not “ignore the danger that [Mr. Gleason] presented to the community,”
which included operating a methamphetamine laboratory with highly explosive
materials in a residential neighborhood and intending to sell methamphetamine that
was laced with drain cleaner. See D.E. 103 at 21-22. This is more than a simple
recitation of the facts; it explains why Mr. Gleason’s arguments were rejected. The
danger to the community is a relevant factor, and the district court was entitled to
find that it outweighed Mr. Gleason’s personal history and characteristics. See
Snipes, 611 F.3d at 872 (“[W]e will not second guess the weight (or lack thereof)
that the [district court] accorded to a given factor . . . , as long as the sentence
ultimately imposed is reasonable in light of all the circumstances presented.”)
(citations and quotation marks omitted) (emphasis in original). We believe that the
district court did not abuse its discretion by making that evaluation and imposing a
151-month sentence. See Pugh, 515 F.3d at 1192 (finding that a sentence is not
necessarily unreasonable simply because the district court attached great weight to
a single factor).
AFFIRMED.
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