Filed: Jun. 23, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-11130 Date Filed: 06/23/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11130 Non-Argument Calendar _ D.C. Docket No. 3:12-cr-00033-CAR-CHW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGGIE MCDANIEL, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (June 23, 2014) Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges. PER CURIAM: Case: 13-11130 Date F
Summary: Case: 13-11130 Date Filed: 06/23/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11130 Non-Argument Calendar _ D.C. Docket No. 3:12-cr-00033-CAR-CHW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGGIE MCDANIEL, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (June 23, 2014) Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges. PER CURIAM: Case: 13-11130 Date Fi..
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Case: 13-11130 Date Filed: 06/23/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11130
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cr-00033-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGGIE MCDANIEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 23, 2014)
Before CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Case: 13-11130 Date Filed: 06/23/2014 Page: 2 of 7
Reggie McDaniel appeals his 52-month sentence, which was imposed after
he pleaded guilty to one count of possession with intent to distribute cocaine, in
violation of 18 U.S.C. § 841(a)(1) and (b)(1)(C). The district court imposed that
sentence consecutive to the sentence that the State of Georgia imposed when it
revoked his parole. McDaniel contends that his sentence is procedurally and
substantively unreasonable. He also contends that the district court abused its
discretion by not granting him a downward departure.
I.
McDaniel asserts that his sentence is procedurally unreasonable for three
reasons: (1) the district court incorrectly believed that it was required to impose a
consecutive sentence; (2) the court did not adequately explain the reasons behind
the sentence it imposed; and (3) the court improperly failed to consider McDaniel’s
age at the time he committed his previous crimes.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41,
128 S. Ct. 586, 591
(2007). In reviewing the procedural reasonableness of a sentence, we ensure that
the district court properly calculated the guideline range, treated the United States
Sentencing Guidelines as advisory, considered the 18 U.S.C. § 3553(a) factors, did
not select a sentence based on clearly erroneous facts, and adequately explained the
chosen sentence.
Id. at 51, 128 S.Ct. at 597. The fact that a district court does not
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explicitly address or analyze a § 3553(a) factor does not necessarily mean that the
court failed to consider it. See United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005). It is sufficient if a district court states that it considered the parties’
arguments and the § 3553(a) factors. United States v. Irey,
612 F.3d 1160, 1195
(11th Cir. 2010) (en banc).
When the district court imposes a term of imprisonment on a defendant who
is already subject to an undischarged term of imprisonment, the court has
discretion to run the terms either concurrently or consecutively. 18 U.S.C.
§ 3584(a). In determining whether to run the terms concurrently or consecutively,
however, the court must again consider the § 3553(a) factors. Id. § 3584(b).
Where a federal defendant is on state parole at the time he commits a federal
offense, the sentencing guidelines recommend that the sentence for the new,
federal offense run consecutively to any sentence imposed by the state as a result
of the revocation of the defendant’s parole. U.S.S.G. §§ 5G1.3 cmt. n.3(C);
7B1.3(f) & cmt. n.4.
McDaniel’s sentence is not procedurally unreasonable. McDaniel first
contends that district court procedurally erred by treating as mandatory, instead of
discretionary, its decision to impose a consecutive sentence. The record does not
support that contention. When McDaniel requested that his federal sentence run
concurrently with his state sentences, the district court stated that it “gave that
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[issue] some thought,” and it thought that “this needs to be run consecutive.” If the
court had been treating the decision to run the sentence consecutively as
predetermined, there would have been nothing to “think” about. The court’s
decision was an exercise of discretion.
McDaniel next contends that the district court did not adequately explain its
reasons for imposing a consecutive sentence. We disagree. The court clearly
explained that U.S.S.G. § 5G1.3 cmt. n.3(C) recommended a consecutive sentence
for someone in in McDaniel’s situation. The court also twice stated that “[i]n
imposing the sentence in this case” it had “considered the sentencing factors found
at 18 U.S.C. Section 3553(a).” It gave adequate reasons for imposing a
consecutive sentence on McDaniel.
McDaniel last contends that district court procedurally erred in not
considering how old he was when he committed his previous drug crimes. That
contention lacks merit. As already mentioned, the district court twice said that
“[i]n imposing the sentence in this case” it had “considered the sentencing factors
found at 18 USC Section 3553(a).” That statement indicates that the court
considered all of the 3553(a) factors, including “the history and characteristics of
the defendant,” which would include McDaniel’s age when he committed his
earlier crimes. See 18 U.S.C. § 3553(a)(1). Other statements by the court only
reinforce that point. When McDaniel asked the court to “consider . . . his age
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when he was first sentenced on those three counts in 2005,” the court knowingly
replied that “he was 17.” The record contradicts McDaniel’s contention.
For all of these reasons, McDaniel’s sentence is not procedurally
unreasonable.
II.
McDaniel contends that his sentence is substantively unreasonable because
the district court relied on an overstatement of his criminal history, which caused it
to improperly weigh the § 3553(a) factors. The party challenging the sentence has
the burden of establishing that it is substantively unreasonable. United States v.
Dean, 635 F.3d 1200, 1203–04 (11th Cir. 2011).
A district court abuses its discretion when it fails to afford consideration to
relevant factors that were due significant weight, gives significant weight to an
improper or irrelevant factor, or commits a clear error of judgment in considering
the proper factors. Irey, 612 F.3d at 1189. We 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.”
Id.
at 1190 (quotation marks omitted).
McDaniel has not established that his sentence is substantively
unreasonable. The record does not support his assertion that the district court
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relied on an overstatement of his criminal history and, as a result, improperly
weighed the § 3553(a) factors. 1 The court correctly noted that he had three prior
drug convictions, and his present offense involved his possession of 249.9 grams
of crack cocaine with the intent to distribute it. With that sort of a criminal history,
the district court was stating the obvious when it said that McDaniel is a “man who
is involved in drugs.” And the district court did not err in concluding that, in light
of the seriousness of McDaniel’s criminal history, a custodial sentence in the
guidelines range was necessary to promote respect for the law, provide just
punishment, and deter him from further criminal activity. 18 U.S.C. § 3553(a)(2).
McDaniel’s 52-month sentence is in the middle of his advisory guidelines range of
46–57 months, and we ordinarily expect a sentence within the guidelines range to
be reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). His
sentence is also well below the 30-year statutory maximum, which is another
indicator of its reasonableness. See United States v. Gonzalez,
550 F.3d 1319,
1324 (11th Cir. 2008). McDaniel’s sentence is not substantively unreasonable.
1
The district court is required to impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” of 18 U.S.C. § 3553(a)(2), including the need to reflect
the seriousness of the offense, promote respect for the law, provide just punishment for the
offense, deter criminal conduct, and protect the public from the defendant’s future criminal
conduct. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also consider
the nature and circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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III.
Finally, McDaniel challenges the district court’s refusal to grant him a
downward departure under U.S.S.G. § 4A1.3(b)(1). We are required to address
our jurisdiction sua sponte, and we consider it de novo. United States v. Lopez,
562 F.3d 1309, 1311 (11th Cir. 2009). We have jurisdiction to review the denial of
a downward departure only insofar as a defendant contends that the district court
incorrectly believed that it lacked the authority to depart downward. United States
v. Winingear,
422 F.3d 1241, 1245–46 (11th Cir. 2005). McDaniel does not argue
that the district court failed to recognize its authority to depart downward. Instead,
he argues that the district court abused its discretion by refusing to grant him a
downward departure under U.S.S.G. § 4A1.3(b). We lack jurisdiction to decide
that issue.
AFFIRMED.
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