Case: 14-14832   Date Filed: 08/14/2015   Page: 1 of 5


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14832
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:14-cr-00015-CAR-CHW-1



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                 versus

MICHAEL BURGESS,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (August 14, 2015)

Before TJOFLAT, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Defendant Michael Burgess pled guilty to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

district court imposed a 65-month sentence, which was within the advisory

Sentencing Guidelines’ range. Defendant appeals, arguing that his sentence is

substantively unreasonable because the district court placed undue emphasis on his

criminal history and gave too little weight to mitigating factors. After review, we

affirm.

       We apply an abuse of discretion standard when reviewing the

reasonableness of a sentence. United States v. Pugh, 

, 1190 (11th

Cir. 2008). Using a two-step process, we look first to whether the district court

committed any significant procedural error and then at whether the sentence is

substantively unreasonable in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) factors.1 

choosing the sentence, the district court

must consider the § 3553(a) factors, the district court is not required to address

each factor separately. United States v. Bonilla, 

, 1182 (11th Cir.

2006). The party challenging the sentence bears the burden of showing that it is


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         The § 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; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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unreasonable. 

. We will reverse only if “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” 

(quotation marks omitted).

      Here, Defendant has identified no procedural errors nor has he shown that

his sentence is substantively unreasonable. Defendant’s 65-month sentence is in

the middle of the advisory guideline range of 57 to 71 months’ imprisonment and

well below the 10-year statutory maximum under 18 U.S.C. § 924(a)(2). See

United States v. Hunt, 

, 746 (11th Cir. 2008) (explaining that, while

we do not apply a presumption, we ordinary expect a sentence inside the advisory

guidelines range to be reasonable); United States v. Gonzalez, 

, 1324

(11th Cir. 2008) (citing the fact that the sentence imposed was well below the

statutory maximum as an indication of reasonableness).

      At sentencing, Defendant requested a downward variance based on various

mitigating factors. First, he noted that he had been out of custody for four years

without getting into trouble and was trying to turn his life around by moving back

to the Atlanta area to find a job and get away from bad influences in South

Carolina. Second, he attempted to explain why he had decided to illegally possess

a firearm. Specifically, after being shot when he was 17-years old, he had suffered


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lasting kidney damage and untreated post-traumatic stress disorder. As a result, he

never feels safe and had therefore obtained a gun for his own protection. Third, his

guideline range had been enhanced because the gun at issue was stolen, but

Defendant explained that when he had purchased the gun, he did not know this.

Given all of the above, Defendant specifically requested a sentence between three-

and-a-half and four years, reasoning that a sentence of this length would allow him

sufficient time to receive drug treatment for his marijuana use.

      In imposing sentence, the district court indicated that it had considered the

§ 3553(a) factors. It is true that the court did not specifically address Defendant’s

mitigating arguments. But a district court is not required to explicitly address each

mitigating argument made by a defendant. United States v. Scott, 

,

1329 (11th Cir. 2005). In any event, the court’s remarks indicate that it was aware

of and considered Defendant’s mitigating evidence. In fact, the court observed that

Defendant would have the opportunity to receive substance abuse treatment and

mental health treatment in prison.

      In faulting the district court for not downwardly varying, Defendant argues

that the district court placed too much emphasis on his 1997 conviction for assault

and battery with the intent to kill and assault and battery of a high and aggravated

nature. But we find no abuse of discretion by the district court when it concluded

that the proffered mitigating factors were outweighed by Defendant’s criminal


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history, which history impacted directly the court’s evaluation of the seriousness of

Defendant’s present offense. See United States v. Clay, 

, 743 (11th

Cir. 2007) (stating that “[t]he weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” (quotation marks

omitted)). While it is true that Defendant’s conviction occurred seventeen years

prior to the present offense and that he was only 19-years old at that time, this prior

offense was incredibly violent, as it involved Defendant shooting two people with

a rifle. As pointed out by the district court, the fact that Defendant’s prior—and

very dangerous—felony offense involved the use of a firearm renders even more

serious his recent decision to disregard the law by obtaining a firearm. Moreover,

this prior shooting conviction is not Defendant’s only legal blemish, as he has

numerous drug convictions and arrests for firearms offenses.

      For all these reasons, Defendant has not carried his burden to show that his

65-month sentence is substantively unreasonable.

      AFFIRMED.




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