Filed: Feb. 27, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-13494 Date Filed: 02/27/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13494 Non-Argument Calendar _ D.C. Docket No. 6:12-cr-00018-BAE-GRS-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSCAR LEE MANGRAM, JR., a.k.a. Chico, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Georgia _ (February 27, 2014) Before HULL, PRYOR and FAY, Circuit Judges. PER CURIAM: Case: 13-13494
Summary: Case: 13-13494 Date Filed: 02/27/2014 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13494 Non-Argument Calendar _ D.C. Docket No. 6:12-cr-00018-BAE-GRS-3 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSCAR LEE MANGRAM, JR., a.k.a. Chico, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Georgia _ (February 27, 2014) Before HULL, PRYOR and FAY, Circuit Judges. PER CURIAM: Case: 13-13494 ..
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Case: 13-13494 Date Filed: 02/27/2014 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13494
Non-Argument Calendar
________________________
D.C. Docket No. 6:12-cr-00018-BAE-GRS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR LEE MANGRAM, JR.,
a.k.a. Chico,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(February 27, 2014)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Case: 13-13494 Date Filed: 02/27/2014 Page: 2 of 8
After pleading guilty, Defendant Oscar Lee Mangram, Jr., appeals his
48-month sentence for distribution of cocaine hydrochloride, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, Mangram argues that his sentence,
which included a 24-month upward variance, was substantively unreasonable.
After review, we affirm.
I. REASONABLENESS
We review the reasonableness of a sentence using a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41,
128 S. Ct. 586, 591
(2007). In a reasonableness review, we first look at whether the district court
committed any significant procedural error and then at whether the sentence is
substantively unreasonable under the totality of the circumstances and in light of
the § 3553(a) factors.1 United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir.
2008); United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). The party
challenging the sentence has the burden of establishing that the sentence is
unreasonable. United States v. Turner,
626 F.3d 566, 573 (11th Cir. 2010).
1
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).
2
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Although in choosing a sentence, the district court must consider the
§ 3553(a) factors, the district court is not required to address each factor separately
or to state that a particular factor is not applicable. United States v. Bonilla, 463
F.3d 1176, 1182 (11th Cir. 2006). Rather, an acknowledgement that the district
court has considered the defendant’s arguments and the factors generally will
suffice. United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005). Moreover,
the weight given to each § 3553(a) factor is “a matter committed to the sound
discretion of the district court.” United States v. Clay,
483 F.3d 739, 743 (11th
Cir. 2007) (quotation marks omitted).
If the district court decides to impose an upward variance, “it must ‘consider
the extent of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” United States v. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008) (quoting
Gall, 552 U.S. at 50, 128 S. Ct. at 597).
In reviewing the reasonableness of a sentence outside the advisory guidelines
range, we take into account the district court’s justification and the extent of the
variance, but we do not require extraordinary circumstances to justify such a
sentence or presume that the sentence is unreasonable.
Gall, 552 U.S. at 47, 128 S.
Ct. at 594-95; United States v. Irey,
612 F.3d 1160, 1186-87 (11th Cir. 2010) (en
banc). The district court’s reason for the variance need not be lengthy; a brief
explanation may suffice when the context and the record indicates the reasoning
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behind the chosen sentence. Irey, 612 F.3d at 1195. We also must give “‘due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.’”
Id. at 1187 (quoting
Gall, 552 U.S. at 51, 128
S. Ct. at 597). We will vacate such a sentence “only if we are 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.” United States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks omitted).
II. MANGRAM’S SENTENCE
Mangram has not shown that his above-guidelines sentence is substantively
unreasonable.2 Mangram’s advisory guidelines range was 18 to 24 months. In
imposing the 48-month sentence, the district court stressed the need for the
sentence to reflect the seriousness of Mangram’s drug offense, to provide just
punishment, deter further criminal conduct and to protect the public. Mangram
pled guilty to only one count of cocaine distribution. The presentence
investigation report (“PSI”) reported, however, that Mangram was a member of an
extensive drug trafficking organization that involved over thirty individuals and
had operated throughout Southeast Georgia since 2006. During law enforcement’s
undercover investigation, Mangram discussed drug sales in recorded phone calls
2
Mangram does not argue that his sentence is procedurally unreasonable.
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and made several controlled buys of cocaine to undercover agents. The facts in the
PSI about Mangram’s extensive drug trafficking were not disputed. The district
court stated that because Mangram’s “involvement with illegal drug sales far
exceed[ed] what he [was] pleading guilty to,” a sentence above the advisory
guidelines range was appropriate.
In addition, the district court considered the history and characteristics of the
defendant, emphasizing in particular that Mangram had five prior convictions–two
counts of possession of cocaine, possession of a sawed-off shotgun, possession of
cocaine with intent to distribute, and battery–for which Mangram had not received
any criminal history points due to their age. In fact, despite having committed
such serious crimes, Mangram’s criminal history score was 0 and his criminal
history category was I. The district court pointed out that, had Mangram received
points for these prior convictions, he would have been designated a career
offender, and his guidelines range would have been significantly higher. The
district court acknowledged that Mangram committed some of these prior crimes
as a teenager, but also stated that it was clear Mangram had been involved in
selling cocaine and other crimes throughout his adult life.3
3
Mangram argues that the record does not support the district court’s finding that he was
involved in criminal activities throughout his adult life. However, the undisputed facts in the PSI
establish that Mangram was a member of a drug trafficking organization that had been operating
since at least 2006 and that Mangram had no legitimate source of income for the past ten years.
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There is no merit to Mangram’s argument that the district court should not
have considered his prior convictions in imposing an upward variance because it
did not impose an upward departure under U.S.S.G. § 4A1.3 for an
underrepresented criminal history, as recommended by the probation officer.
While the district court can consider conduct used to calculate a defendant’s
advisory guidelines range in deciding whether to impose a variance, United States
v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007), the district court is not limited to
doing so. In fact, § 3553(a) requires the district court to consider the defendant’s
“history and characteristics,” which would include his criminal history not
accounted for in the guidelines calculations. Further, this Court has already
rejected a similar argument and concluded that “there is no requirement that a
district court must impose an enhancement before granting [an upward] variance.”
United States v. Rodriguez,
628 F.3d 1258, 1264 (11th Cir. 2010). In Rodriguez,
we rejected the defendant’s argument that the district court was precluded from
considering the number of victims in imposing an upward variance because it had
not applied a multiple-victims guidelines enhancement.
Id. Similarly, a district
court’s declining to impose an upward departure under § 4A1.3 does not preclude
the district court from imposing an upward variance based on unscored prior
convictions. Even if a district court concludes a particular fact or factor does not
These facts are sufficient to support an inference that Mangram had been involved in illegal
activities to support himself during that time period.
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trigger a guidelines enhancement or departure, the district court may still consider
that fact or factor in imposing a variance. Although Mangram suggests Rodriguez
is contrary to Congress’s intent to increase uniformity in sentencing, Congress has
explicitly provided that there is “[n]o limitation . . . on the information concerning
the background, character, and conduct” of the defendant that a court may consider
in determining the appropriate sentence. See 18 U.S.C. § 3661.
We also reject Mangram’s argument that the district court was bound by the
Sentencing Guidelines’ instruction to sentencing courts not to consider convictions
that are more than 15 years’ old. First, the Sentencing Guidelines state only that
the sentencing court should not assign criminal history points for such convictions.
See U.S.S.G. § 4A1.2(e)(1), (3). Second, and in any event, after Booker, the
Sentencing Guidelines are purely advisory and, while the sentencing court must
correctly calculate and consider the advisory guidelines range, the Sentencing
Guidelines do not restrict what the sentencing court can consider under the
§ 3553(a) factors in arriving at an appropriate sentence. See United States v.
Booker, 543 U.S. 220, 259-265,
125 S. Ct. 738, 764-68 (2005); United States v.
Livesay,
525 F.3d 1081, 1089 (11th Cir. 2008).
Finally, Mangram’s 48-month sentence is well below the applicable twenty-
year statutory maximum sentence, another indication it is reasonable. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the totality of the
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circumstances, we cannot say the district court’s decision to vary upward by 24
months from the advisory guidelines range was an abuse of discretion.
Accordingly, we affirm Mangram’s 48-month sentence.
AFFIRMED.
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