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United States v. Bob Aaron Mikell, 08-10622 (2008)

Court: Court of Appeals for the Eleventh Circuit Number: 08-10622 Visitors: 3
Filed: Jul. 01, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT July 1, 2008 No. 08-10622 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00026-CR-BAE-6 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BOB AARON MIKELL, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Georgia _ (July 1, 2008) Before ANDERSON, DUBINA and HULL, Circuit Judges. PER CURIAM: Appellant Bo
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                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                July 1, 2008
                              No. 08-10622                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 06-00026-CR-BAE-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

BOB AARON MIKELL,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 1, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Bob Aaron Mikell appeals his 192-month sentence imposed after
pleading guilty to conspiracy to possess with intent to distribute and to distribute

cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and 18

U.S.C. § 2. The district court arrived at this sentence after departing downward

under U.S.S.G. § 5K1.1 based on Mikell’s substantial assistance to the

government. Both parties agree on appeal that the district court’s starting point

before the departure was within Mikell’s applicable guideline range.

      On appeal, Mikells argues that his sentence was substantively unreasonable

in light of: (1) his underlying criminal history score before the district court applied

the career offender enhancement in U.S.S.G. § 4B1.1; (2) the nature of one of his

prior, qualifying drug convictions; and (3) his self-improvement efforts. After

reviewing the record and reading the parties’ briefs, we discern no reversible error.

      We review a defendant’s sentence for reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. __, __, 
128 S. Ct. 586
, 591,

594, 597, 
169 L. Ed. 2d 445
(2007); United States v. Pugh, 
515 F.3d 1179
, 1190

(11th Cir. 2008). “[A]fter giving both parties an opportunity to argue for whatever

sentence they deem appropriate, the district judge should then consider all of the

§ 3553(a) factors to determine whether they support the sentence requested by a

party.” Gall, 552 U.S. at __, 128 S. Ct. at 596. The factors in § 3553(a) that the

court must consider are:



                                           2
      (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 unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

United States v. Talley, 
431 F.3d 784
, 786 (11th Cir. 2005) (citing 18 U.S.C.

§ 3553(a)). It is sufficient for the district court to acknowledge that it has

considered the § 3553(a) factors, but it need not explicitly discuss each of them.

United States v. Scott, 
426 F.3d 1324
, 1329 (11th Cir. 2005). After considering the

§ 3553(a) factors, the court “must make an individualized assessment based on the

facts presented.” Gall, 552 U.S. __, 128 S. Ct. at 597. We have recognized that

“there is a range of reasonable sentences from which the district court may

choose.” 
Talley, 431 F.3d at 788
.

      The Supreme Court has held that, in reviewing sentences for reasonableness

under § 3553(a), a federal appellate court may apply a presumption of

reasonableness to a district court sentence imposed within the guideline range.

Rita v. United States, 551 U.S. __, __,
127 S. Ct. 2456
, 2462, 
168 L. Ed. 2d 203
(2007). However, we have declined to adopt such a presumption. United States v.

Campbell, 
491 F.3d 1306
, 1313 (11th Cir. 2007); United States v. Hunt, 
459 F.3d 3
1180, 1184-85 (11th Cir. 2006). Nonetheless, although it is not reasonable per se,

a within-range sentence may ordinarily be expected to be reasonable. 
Talley, 431 F.3d at 786-88
.

      In this case, we conclude that Mikell has not met his burden of

demonstrating that the district court’s sentence within the applicable guideline

range was unreasonable, as the court considered the pre-sentence investigation

report, the § 3553(a) factors, arguments presented in mitigation, Mikell’s prior

drug convictions, and his self-improvement efforts. Mikell’s reliance on his un-

enhanced criminal history score is misplaced because he concedes that he was

properly classified as a career offender. Accordingly, we affirm Mikell’s sentence.

      AFFIRMED.




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Source:  CourtListener

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