Filed: Jun. 22, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JUNE 22, 2009 No. 08-17202 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 08-00073-CR-RV UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTOINE L. WILKERSON, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (June 22, 2009) Before TJOFLAT, HULL and PRYOR, Circuit Judges. PER CURIAM: This is a s
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JUNE 22, 2009 No. 08-17202 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 08-00073-CR-RV UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTOINE L. WILKERSON, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (June 22, 2009) Before TJOFLAT, HULL and PRYOR, Circuit Judges. PER CURIAM: This is a se..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22, 2009
No. 08-17202 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00073-CR-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTOINE L. WILKERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 22, 2009)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
This is a sentencing appeal. Antoine L. Wilkerson appeals his twelve-
month-and-one-day prison sentence for driving within the special maritime and
territorial jurisdiction of the United States as a habitual traffic offender, while his
license was suspended or revoked, in violation of Florida and United States law.
See Fla. Stat. §§ 322.264, 322.34(5); 18 U.S.C. §§ 7, 13. After review, we affirm.
I. Background
On May 14, 2008, Wilkerson, while operating a motor vehicle, approached
the main gate of the Naval Air Station (“NAS”) in Pensacola, Florida and was
stopped at the entry point. This routine stop revealed that Wilkerson’s driver’s
license was suspended. As it turned out, Wilkerson’s Florida driver’s license was
not only suspended, but he actually had three or more prior Florida law convictions
for operating a motor vehicle without a valid license.
On August 19, 2008, Wilkerson was charged with the federal crime of
unlawfully driving his motor vehicle “with knowledge that his license and driving
privileges were cancelled, suspended or revoked” in violation of Fla. Stat. §§
322.264(1)(d) and 322.34(5) and 18 U.S.C. §§ 7 and 13. His three prior
convictions for driving without a valid license rendered him a “habitual traffic
offender.” See Fla. Stat. § 322.264(1)(d). Under Florida law, a “habitual traffic
offender” who drives without a valid license commits a third-degree felony
punishable by up to five years in prison. See id. § 322.34(5).
2
Although Wilkerson’s underlying substantive offenses involved state law
violations, the fact that he violated state law while at NAS meant that he also
violated federal law. See 18 U.S.C. §§ 7, 13. NAS is within the “special maritime
and territorial jurisdiction of the United States.” See 18 U.S.C. § 7(3).1 And 18
U.S.C. § 13(a) incorporates state criminal law for crimes committed within the
jurisdiction of the state in which the U.S. land, in this case NAS, sits.2 In other
words, Wilkerson’s violation of Florida criminal law rendered him “guilty of a like
offense and subject to a like punishment” under federal law. See 18 U.S.C. §
13(a). Therefore, because Wilkerson would have been subject to a five-year prison
term under Florida law, see Fla. Stat. § 322.34(5), the “like punishment” under
federal law also subjected Wilkerson to a five-year prison term.
Wilkerson pled guilty. The Presentence Investigation Report (“PSI”)
1
18 U.S.C. § 7(3) defines “special maritime and territorial jurisdiction of the United
States” as encompassing “[a]ny lands reserved or acquired for the use of the United States, and
under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise
acquired by the United States by consent of the legislature of the State in which the same shall
be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.”
2
18 U.S.C. § 13(a) provides that “[w]hoever within or upon any of the places now
existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or
below any portion of the territorial sea of the United States not within the jurisdiction of any
State, Commonwealth, territory, possession, or district is guilty of any act or omission which,
although not made punishable by any enactment of Congress, would be punishable if committed
or omitted within the jurisdiction of the State, Territory, Possession, or District in which such
place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty
of a like offense and subject to a like punishment.”
3
indicated that Wilkerson had a lengthy criminal history under Florida law,
including three prior convictions for driving with a suspended license, one
conviction for driving with a revoked license, and one conviction for being a
habitual traffic offender. The PSI did not apply the United States Sentencing
Guidelines because there was no “sufficiently analogous guideline” for the crime
of driving with a suspended license. Instead, the PSI recommended that the district
court rely on the 18 U.S.C. § 3553(a) factors for the purpose of calculating the
sentence. See also U.S.S.G. § 2X5.1 (“If there is not a sufficiently analogous
guideline, the provisions of 18 U.S.C. § 3553 shall control . . . .”).
On December 12, 2008, the district court sentenced Wilkerson to a twelve-
month-and-one-day prison sentence followed by two years of supervised release.
The district court adopted the facts in the PSI and agreed that Wilkerson’s case was
“not a guideline case.” The district court read letters written on Wilkerson’s behalf
indicating that Wilkerson was married, involved in his church, and played a
positive role in the community. But based on Wilkerson’s “prior criminal history,”
and “taking into account all of the statutorily-defined purposes of sentencing . . . in
. . . Section 3553 (a),” the district court found that the sentence was “sufficient”
and that a “greater sentence is not necessary to comply with [§ 3553(a)’s] statutory
purposes.” Because of Wilkerson’s poor financial situation, the district court
4
waived any applicable fines, but required a mandatory $100 special assessment
fee. In response to a suggestion by defense counsel, the district court allowed
Wilkerson to surrender voluntarily to the U.S. Marshal within 30 days given the
upcoming holidays and Wilkerson’s need to get his affairs in order. Defense
counsel objected that, under 18 U.S.C. § 3553(a), the sentence was “greater than
necessary.”3
II. Discussion
On appeal, Wilkerson argues that his sentence is substantively unreasonable
because it is “greater than necessary” within the meaning of 18 U.S.C. § 3553(a).4
He makes two types of arguments to support his claim. First, he argues that his
sentence is simply too harsh because: (1) he did not commit a dangerous crime;
(2) his poor financial situation undermined his ability to pay past driver’s license
suspension fines, which, in effect, resulted in him being criminally punished for
3
“The § 3553(a) factors include: (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; (3) the need for the sentence imposed to afford adequate deterrence;
(4) the need to protect the public; (5) the need to provide the defendant with educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the 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. Beckles, 565 F.3d 832, 845 n.4 (11th Cir. 2009) (citing 18 U.S.C. § 3553(a)).
4
We review the substantive reasonableness of a sentence for abuse of discretion and take
into account the totality of the circumstances. Gall v. United States, 552 U.S. 38,
128 S. Ct. 586,
597 (2007). “[T]he 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).
5
being poor; and (3) he has made a number of important life changes in recent years
(marriage, church involvement, employment, and mentoring youths). Second, he
argues that the district court did not explain why the sentence was “sufficient” but
not “greater than necessary.” 5
For starters, “[w]e do not apply the reasonableness standard to each
individual decision made during the sentencing process; rather, we review the final
sentence for reasonableness.” United States v. Winingear, 422 F.3d 1241, 1245
(11th Cir. 2005); see also United States v. Thomas,
446 F.3d 1348, 1351 (11th Cir.
2006) (“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the §
3553(a) factors.”). Therefore, we must determine whether Wilkerson’s twelve-
month-and-one-day sentence, which is 20 percent of the statutory maximum of five
years authorized under Florida law, is substantively unreasonable.
We quickly discard Wilkerson’s suggestion that the district court was
required to explain in detail exactly why the sentence was not “greater than
necessary.” This Court has never required district courts to elaborate on exactly
how they assessed each and every one of the § 3553(a) factors. See Thomas, 446
5
Our cases normally treat this type of argument as a challenge to the sentence’s
“procedural”—as opposed to “substantive”—reasonableness. But Wilkerson has styled his
argument as a challenge to the sentence’s substantive reasonableness. In any event, the label
does not alter our analysis of the issue.
6
F.3d at 1357 (“Although sentencing courts must be guided by these factors,
‘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.’” (quoting United States v. Scott,
426 F.3d 1324, 1329 (11th
Cir. 2005)). Nor have we required district courts to engage in a tit-for-tat debate
with defense counsel over the reason for imposing a sentence. See United States v.
Beckles,
565 F.3d 832, 846 (11th Cir. 2009); United States v. Ellisor,
522 F.3d
1255, 1278 (11th Cir. 2008) (“[W]e have held that a court’s explicit
acknowledgment that it has considered a defendant’s arguments and the § 3553(a)
factors is sufficient to demonstrate that it has adequately and properly considered
those factors.”). Therefore, we find no error as to the district court’s failure to
“address the reasons proferred by Appellant [as to] why it was necessary to send
Appellant to prison for a non-dangerous driving infraction.” Appellant’s Br. at 10.
As to whether this sentence is “greater than necessary,” the district court
emphasized that Wilkerson’s criminal history, in large part, drove the sentence.
The district court adopted the PSI’s findings that Wilkerson had three prior
convictions for driving with a suspended license, one conviction for driving with a
revoked license, and one conviction for being a habitual traffic offender. Given
our deferential standard of review, see Thomas, 446 F.3d at 1351, we cannot say
7
that a one-year-and-one-day sentence, where the statute authorizes five years in
prison, is unreasonable given Wilkerson’s past criminal history. Even if we were
to take into account Wilkerson’s personal details, such as his recent efforts to get
his life on track, the uniqueness of his situation cannot supplant our deferential
standard of review. Gall v. United States, 552 U.S. 38,
128 S. Ct. 586, 598 (2007)
(“The uniqueness of the individual case, however, does not change the deferential
abuse-of-discretion standard of review that applies to all sentencing decisions.”).
Although Wilkerson argues that his financial situation undermined his
ability to pay fines associated with his past license suspensions, those fines did not
require him to operate a motor vehicle without a valid license on at least four
different occasions. And the district court appeared to take Wilkerson’s poor
financial condition into account by waiving additional fines and allowing him to
voluntary report to prison 30 days after sentencing so that he had an opportunity to
put his affairs in order.
Lastly, we reject Wilkerson’s argument that incarceration is unjustified
because he did not commit what he considers to be a “dangerous” offense. The
relevant Florida statutes, see Fla. Stat. §§ 322.264(1)(d), 322.34(5), criminalize
Wilkerson’s conduct and authorize five years of imprisonment. Our task is to
determine whether the district court abused its discretion in imposing the sentence
8
allowed by law—not to reconsider the § 3553(a) factors and apply them as we
would have in the first instance. Gall, 552 U.S. at —, 128 S. Ct. at 597 (“The fact
that the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court.”). Based on
Wilkerson’s criminal history, the “nature and circumstances” of Wilkerson’s
offense, the fact that Wilkerson’s sentence was on the low end of the statutory
range, and the district court’s consideration of the § 3553(a) factors, we cannot say
that the district court abused its discretion.
AFFIRMED.
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