[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-11534                ELEVENTH CIRCUIT
                                                           November 14, 2008
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 07-00186-CR-1-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

LAMEL DIGGS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________
                            (November 14, 2008)


Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Lamel Diggs appeals his 153-month sentence for (1) armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d) (“Count 1”); and (2) possession of a

firearm during and in relation to the commission of a crime of violence, in

violation of 18 U.S.C. § 924(c) (“Count 2”). Diggs argues that this sentence is

procedurally and substantively unreasonable, in that the district court (1) did not

afford Diggs an opportunity to speak before deciding to impose a sentence within

the guidelines imprisonment range, (2) only considered one 18 U.S.C. § 3553(a)

factor, (3) did not adequately explain its choice of sentence, and (4) imposed a

sentence greater than necessary. For the reasons set forth below, we affirm.

                                          I.

       On the afternoon in question, 22-year-old Diggs and a codefendant armed

themselves, entered a bank, and yelled for the bank’s staff and customers to lay on

the floor. Diggs fired a round into the bank’s ceiling and began searching for

additional staff and customers in the bank’s offices. His codefendant vaulted the

teller counter and began collecting money from the teller drawers. Diggs and his

codefendant ultimately collected $25,240. They then fled the bank in Diggs’s car.

The police ultimately tracked down and arrested both men. In a post-arrest

interview with authorities, Diggs apologized for his crime and for frightening the

people in the bank that day.



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      Regarding Count 1, a probation officer set Diggs’s base offense level at 20,

pursuant to U.S.S.G. § 2B3.1(a); added two levels, pursuant to U.S.S.G.

§ 2B3.1(b)(1), because Diggs robbed a financial institution; added one level,

pursuant to U.S.S.G. § 2B3.1(b)(7)(B), because Diggs robbed the financial

institution of more than $10,000; and subtracted two levels, pursuant to U.S.S.G.

§ 3E1.1(a), because Diggs accepted responsibility for his actions. The probation

officer set Diggs’s criminal history category at I, as he had no prior criminal

history. With a total offense level of 21 and a criminal history category of I,

Diggs’s recommended guideline imprisonment range for this count was 37 to 46

months. Regarding Count 2, the probation officer noted that, pursuant to U.S.S.G.

§ 2K2.4(b), the mandatory consecutive ten-year term of imprisonment required by

§ 924(c) controlled. The probation officer concluded that Diggs’s total guideline

imprisonment range was 157 to 166 months.

      At a sentencing hearing, the district court adopted the probation officer’s

calculations, but subtracted another level, pursuant to U.S.S.G. § 3E1.1(b), because

Diggs timely notified the government of his intent to plead guilty. Thus, Diggs’s

guideline imprisonment range as to this Count I was 33 to 41 months and his total

guideline imprisonment range was 153 to 161 months. Diggs did not object to the

court’s calculations.



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      Diggs requested a downward variance, specifically 120 months’ and one

day’s imprisonment. To this end, Diggs argued that he only was 22 years old, had

worked his entire life and helped his single mother support his younger siblings,

and never had been in trouble before. The district court denied Diggs’s request for

a non-guidelines sentence. The court reasoned that (1) the Guidelines adequately

took into account that Diggs had no prior criminal history and (2) Diggs’s crime

involved a “violent, scary act of premeditated criminal conduct” that must be

“severely punished.” Diggs requested a sentence at the low end of the guideline

imprisonment range.

      The district court gave Diggs the opportunity to speak on his own behalf

before the sentence was imposed, but Diggs declined to do so. The court sentenced

Diggs to 33 months’ imprisonment as to Count 1 and 120 consecutive months’

imprisonment as to Count 2. The court explained that it found a sentence at the

low end of the guidelines imprisonment range adequate in light of the nature and

circumstances of the offense, the history and characteristics of Diggs – namely that

he was young and had no prior criminal history, the need for the sentence imposed

to adequately reflect the seriousness of the offense, and the need to avoid

unwarranted sentencing disparities. The court concluded that the sentence imposed

was reasonable in light of § 3553(a).



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                                          II.

       After the Supreme Court’s decision in United States v. Booker, 

, 

, 

(2005), the sentencing court first must

correctly calculate the guideline imprisonment range and then must treat that range

as advisory and impose a reasonable sentence. United States v. Talley, 

, 786 (11th Cir. 2005). Specifically, the district court must impose a sentence

that is both procedurally and substantively reasonable. United States v. Hunt, 

, 1182 n.3 (11th Cir. 2006); Gall v. United States, 552 U.S. __, 

, 597, 

(2007). The Supreme Court has held that the

reasonableness of a sentence is reviewed under an abuse-of-discretion standard.

Gall, 552 U.S. at __, 128 S.Ct. at 597. “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable.” United States

v. Talley, 

,788 (11th Cir. 2005).

      The Supreme Court has explained that a sentence may be procedurally

unreasonable if the district court improperly calculates the guideline imprisonment

range, treats the Guidelines as mandatory, fails to consider the appropriate

statutory factors, bases the sentence on clearly erroneous facts, or fails to

adequately explain its reasoning. Gall, 552 U.S. at __ , 128 S.Ct. at 597. The

Supreme Court instructed that the court “should set forth enough to satisfy the



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appellate court that [it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. __, 

, 2468, 

(2007). Fed.R.Crim.P.

32(i)(4)(A) instructs the court that, before imposing a sentence, it must

      (i) provide the defendant’s attorney an opportunity to speak on the
      defendant's behalf;(ii) address the defendant personally in order to
      permit the defendant to speak or present any information to mitigate
      the sentence; and (iii) provide an attorney for the government an
      opportunity to speak equivalent to that of the defendant's attorney.

      The Supreme Court also has explained that review for substantive

reasonableness involves inquiring whether the statutory factors in § 3553(a)

support the sentence in question. Gall, 552 U.S. at __, 128 S.Ct. at 598-99.

Pursuant to § 3553(a), the sentencing court shall impose a sentence “sufficient, but

not greater than necessary” to comply with the purposes of sentencing listed in

§ 3553(a)(2), namely reflecting the seriousness of the offense, promoting respect

for the law, providing just punishment for the offense, deterring criminal conduct,

protecting the public from future criminal conduct by the defendant, and providing

the defendant with needed educational or vocational training or medical care. See

18 U.S.C. § 3553(a)(2). The statute also instructs the sentencing court to consider

certain factors, including the nature and circumstances of the offense, the history

and characteristics of the defendant, and the need to avoid unwarranted sentence



                                          6
disparities among defendants with similar records who have been found guilty of

similar conduct See 18 U.S.C. § 3553(a)(1), (6).

                                               III.

       The district court did not impose a procedurally or substantively

unreasonable sentence. See 

n.3; Gall, 552 U.S. at __, 128

S.Ct. at 597.1 First, the court gave Diggs the opportunity to speak before imposing

a sentence on him, as required by Rule 32(i)(4)(A). Although the court already had

denied Diggs’s request for a downward variance, and thus implied that it would

impose a sentence within the guidelines imprisonment range, Diggs has not shown

that the court already had decided on a specific sentence, and thus effectively

imposed a sentence, before allowing him to speak. Thus, Diggs’s sentence is not

procedurally unreasonable for this reason.

       Also, although Diggs argues that the district court only considered the

seriousness of the offense, the court heard arguments on Diggs’s youth, work

history, and criminal history, and also specifically stated that it had considered

Diggs’s youth and prior criminal history, such that it clearly considered the nature

and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). The court also


       1
         The government suggests on appeal that we review Diggs’s allocution argument for
plain error only, because he failed to raise this objection before the district court. We need not
determine, however, whether plain error review is appropriate regarding any of Diggs’s specific
arguments, as the district court did not commit error, much less plain error.

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explicitly stated that it had considered the nature and circumstances of the offense

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1), (2), (6). Thus, Diggs’s sentence is not procedurally unreasonable for

this reason.

      Furthermore, the district court considered the parties’ arguments and

explained that its choice of sentence had to do with the fact that Diggs’s crime was

a “violent, scary act of premeditated criminal conduct” that must be “severely

punished.” This explanation was sufficient to show that the court had a reasoned

basis for imposing the sentence in question. See Rita, 551 U.S. at __, 127 S.Ct. at

2468. Thus, Diggs’s sentence is not procedurally unreasonable for this reason.

      Finally, the district court explained that it believed the sentence to be

adequate in light of the nature and circumstances of the offense, the history and

characteristics of Diggs, and the need for the sentence imposed to adequately

reflect the seriousness of the offense. Given the seriousness of Diggs’s crime,

which involved shooting a gun in a room full of people, his sentence was in

keeping with the factors set out in § 3553(a). See Gall, 552 U.S. at __, 128 S.Ct. at

598-99. Thus, Diggs’s sentence is not substantively unreasonable for this reason.

In conclusion, Diggs’s sentence was neither procedurally nor substantively

unreasonable. See 

n.3; Gall, 552 U.S. at __, 128 S.Ct. at



                                           8
597. Accordingly, we affirm.

      AFFIRM.




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