[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 15, 2006
No. 06-11448 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00131-CR-2-SLB-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM T. OWENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 15, 2006)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
DUBINA, Circuit Judge:
Appellant William T. Owens appeals his sentence of 60 months
imprisonment for conspiracy to commit wire fraud and securities fraud,
falsification of financial information filed with the Securities and Exchange
Commission, and wire fraud, all in violation of 18 U.S.C. §§ 371, 1350, 1343. The
district court imposed sentence after Owens pled guilty for his role in a prominent
corporate fraud case, which the district court found resulted in significant monetary
losses. Owens asserts that his sentence was unreasonable because, contrary to 18
U.S.C. § 3553(a)(6), the district court did not consider sentences given to other
defendants in related proceedings.
I.
“After the district court has accurately calculated the [g]uideline range, it
may impose a more severe or more lenient sentence that we review for
reasonableness.” United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005) (quotation marks omitted). Such review is deferential, requiring us to
“evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in [18 U.S.C.] section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). We have recognized that “there is a
range of reasonable sentences from which the district court may choose, and when
the district court imposes a sentence within the advisory [g]uidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. Necessarily, there
2
are also “sentences outside the range of reasonableness that do not achieve the
purposes of sentencing stated in § 3553(a) and that thus the district court may not
impose.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).
Post-Booker,1 sentencing requires two steps. Talley, 431 F.3d at 786. First,
the district court must consult the guidelines and correctly calculate the sentence
range under the guidelines. Id. In this step, pre-Booker standards for reviewing
the application of the guidelines still apply. United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). Second, the court must consider the factors listed in
§ 3553(a). Talley, 431 F.3d at 786. One of those factors is “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
That said, “nothing in Booker or elsewhere requires the district court to state
on the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). Rather, “an acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient.” Talley, 431 F.3d at 786.
II.
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
3
After a careful review of the record and the briefs of the parties, we find no
reversible error.
Neither side in this appeal has alleged that the district court applied the
guidelines improperly, and there is no basis for such an argument. See e.g. United
States v. Chotas, 968 F.2d 1193, 1197-98 (11th Cir. 1992) (disparities between
codefendants’ sentences is not a proper basis for a departure from the guidelines).
Accordingly, we proceed to analyze the total sentence for reasonableness.
Here, the district court stated that it thought a 60-month sentence was
reasonable and stated that it had considered the § 3553(a) factors. Although not
required to do so, the district court also extensively discussed the factors it had
considered in sentencing Owens. The court expressly analyzed the sentence with
regard to: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford
adequate deterrence to criminal conduct and to protect the public from further
crimes of the defendant; and (4) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct. See 18 U.S.C. § 3553(a)(1)-(2), (6). It is also evident that the court
4
considered the guidelines. See 18 U.S.C. § 3553(a)(4).
The court was especially concerned with deterrence, and specifically found
that probation or a short custodial sentence would fail to satisfy this concern.
Although the court was obviously affected by Owens’s “extraordinary”
cooperation with the government and his obvious remorse and acceptance of
responsibility, it was equally, if not more so, impressed by the magnitude of the
fraud committed. The court also specifically noted that Owens had been involved
in the fraud longer than many of his coconspirators, that his involvement was more
significant, and that his skills gave him an important role.
The court specifically stated that it had considered the sentences in other
convictions arising out of the same fraudulent scheme. It also acknowledged that
Owens’s sentence was longer than some of those, but specifically found that the
other § 3553(a) factors outweighed this problem. The court noted that
§ 3553(a)(6) addressed only “unwarranted” disparities, suggesting that it was
satisfied that the disparity in this case was warranted. Finally, the court expressly
noted that it had sufficient discretion under Booker to reduce Owens’s sentence,
but declined to do so.
On this analysis alone, we could conclude that Owens’s sentence was
reasonable. Our recent decision in Martin only reinforces the district court’s
5
decision. See Martin, 455 F.3d at 1239, 1241-42 (reversing seven-day sentence of
defendant convicted of the same fraud as unreasonable, “shockingly short,” and
“wildly disproportionate” to his crimes). As in Martin, Owens’s cooperation,
though admirable, did not undo the harm he had caused and did not free him from
his responsibility. Finally, the district court in this case gave Owens a significant
departure, reducing his guidelines sentencing range by almost 300 months, and
“properly reward[ing]” him for his cooperation. Id. at 1241. While there is no
exact calculus to identify what is a reasonable sentence, because of the district
court’s careful consideration of the sentencing factors, we hold that Owens’s 60-
month sentence is not unreasonable. Accordingly, we affirm his sentence.
AFFIRMED.
6