United States v. David Anderson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17249 ELEVENTH CIRCUIT
JUNE 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 08-20601-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID ANDERSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 22, 2009)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Defendant-Appellant David Anderson appeals his 210-month sentence for
possessing with intent to distribute 50 grams or more of cocaine base, in violation

of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(iii) and 18 U.S.C. § 2. On appeal,

Anderson argues that his sentence is substantively unreasonable. After review, we

affirm.

I. BACKGROUND

A grand jury indicted Defendant Anderson and four co-defendants: Eulices

Soto, Christian Soto, Veronica Ramos, and Christian Gaviria. Anderson pled

guilty to Count Six of the indictment, which charged that he possessed with intent

to distribute 50 grams or more of cocaine base.

According to the presentence investigation report (“PSI”), a confidential

source negotiated with Eulices Soto and Ramos several purchases of crack cocaine.

Defendant Anderson accompanied Ramos to a meeting, where Ramos sold the

confidential source 50.1 grams of crack cocaine. Defendant Anderson told the

confidential source that he had “cooked” the crack cocaine.

The PSI recommended a base offense level was 30, pursuant to U.S.S.G. §

2D1.1(a)(3). The PSI then noted that Defendant Anderson previously had been

convicted of two felonies involving violence,1 characterized Anderson as a career

1
According to the PSI, Defendant Anderson had two prior felony convictions for
aggravated assault and battery on a law enforcement officer. Anderson also had two prior felony
convictions for possession of cocaine, oxycodone, and alprazolam.

2
offender pursuant to § 4B1.1(a), and thus increased his offense level to 37. After a

three-level reduction for acceptance of responsibility, Anderson’s total offense

level was 34. Based on this total offense level of 34 and a criminal history

category of VI, Anderson’s advisory guidelines range was 262 to 327 months.

Anderson did not object to the PSI’s calculations.

Defendant Anderson filed a sentencing memorandum requesting a

downward variance from the advisory guidelines range. Anderson argued that the

factors listed in 18 U.S.C. § 3553(a) warranted a downward variance and reasoned

that a 10-year sentence was appropriate. Anderson claimed that injuries suffered

after a gang attack in high school caused him to abuse drugs, that his role in the

drug offense was insignificant, and that he was less culpable than his co-defendant,

Eulices Soto, who received a 210-month sentence.

At sentencing, Defendant Anderson reiterated his request for a downward

variance and called several witnesses to speak on his behalf.2 Anderson’s attorney

then re-emphasized that, based on Anderson’s offense conduct compared to

Eulices Soto’s, a sentence within the guidelines range would be unreasonable.

Last, Anderson personally apologized to his family, the court, and the government.

2
First, Anderson called his former attorney, Ralph Hagans, to speak about his prior
battery convictions. According to Hagans, Anderson’s altercations with police officers that led
to his prior convictions were a result of Anderson attempting to defend himself against the
officers. Hagans stated that Anderson had a drug problem and needed further treatment. Next,
Anderson called his father, mother, and brother-in-law. Each stated that Anderson had accepted
responsibility for his actions, wanted to clean up his life, and had the support of his family.

3
The district court acknowledged that Anderson had two prior felony

convictions: (1) aggravated assault and battery on a law enforcement officer and

resisting or obstructing with violence and (2) resisting an officer with violence and

battery on a law enforcement officer. The district court also noted that Anderson

had a history of drug offenses and that Eulices Soto had no criminal history. The

district court explained that it “pays particular emphasis to [Anderson’s] criminal

history in determining the weight to give the 3553 factors vis-a-vis the weight to

give to the advisory guidelines.” “The Court [] considered the statements of all the

parties, the presentence report which contains the advisory guidelines as well as the

statutory factors set forth in 18 United State Code, Section 3553(a)[,] and[,] with

particular emphasis on the defendant’s criminal history which does qualify him as

a career offender and, of course, any criminal history in th[e] Court’s mind is

serious,” the district court granted Anderson a downward variance from the 262- to

327-month advisory guidelines range and sentenced Anderson to 210-months’

imprisonment.

Anderson appealed.

II. DISCUSSION

Anderson argues that his 210-month sentence is substantively unreasonable

because it created an unwarranted sentencing disparity between himself and his co-

4
defendants, whom he asserts are more culpable.3 Anderson asserts that he should

have not received the same sentence as his co-defendant, Eulices Soto, and notes

that Ramos, whom he alleges received a 57-month sentence, was more culpable

than him.4

Reasonableness review is deferential and the “the party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both th[e] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). One of the § 3553(a) factors that a

district court consults when determining a reasonable sentence is “the need to

avoid unwanted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6).5 “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743

3
We review the reasonableness of a sentence under an abuse-of-discretion standard. Gall
v. United States, 552 U.S. , 128 S. Ct. 586, 597 (2007).
4
The government argues that Anderson waived his disparity argument with respect to
Ramos because he is raising it for the first time on appeal. We do not address the government’s
claim because we find no merit in Anderson’s argument regarding Ramos in any event.
5
The other § 3553(a) factors include: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the offense; (3) the
need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with
needed educational or vocational training or medical care; (6) the kinds of sentences available;
(7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing
Commission; and (9) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

5
(11th Cir. 2007). Moreover, a district need not discuss each factor. Talley, 431

F.3d at 786. “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient.” Id.

“[O]rdinarily, [this Court] would expect a sentence within the Guidelines range to

be reasonable.” Id. at 788.

Anderson has not carried his burden to show that the district court abused its

discretion in imposing this 210-month sentence, which is below the advisory

guidelines range of 262 to 327 months. Anderson’s argument that there is an

unwarranted disparity between his sentence and Eulicies Soto’s or Ramos’s

sentence is without merit because he has not shown that he is similarly situated to

either Eulices Soto or Ramos. The record affirmatively reflects that Eulices Soto

had no criminal history. And Anderson has not come forward with any evidence

that Ramos had a criminal history comparable to his own. Because Anderson’s

sentence reflected, at least in part, his own significant criminal history, he has

failed to show that any disparity between the sentences is unwarranted.

AFFIRMED.