United States v. Anderson , 444 F. App'x 420 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11988 OCTOBER 25, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 3:10-cr-00108-LC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
LAVAR EUGENE ANDERSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 25, 2011)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Lavar Eugene Anderson appeals his 78-month sentence for possession of
500 grams or more of cocaine with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(ii). Anderson argues that when the district court
determined his sentence, it improperly relied on unestablished and disputed facts
that originated from a confidential informant. Anderson also argues that the
court’s reliance on these facts rendered his sentence procedurally unreasonable.
After thorough review of the record, we find Anderson’s arguments lack merit.
Consequently, we affirm the sentence.
We review legal questions concerning the Federal Rules of Criminal
Procedure de novo. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.
2006). The district court must make independent findings establishing the factual
basis for its sentencing guideline calculations. United States v. Hamaker, 455
F.3d 1316, 1338 (11th Cir. 2006). Fed. R. Crim. P. 32(i)(3)(B) further requires the
district court either to rule on “any disputed portion of the presentence report or
other controverted matter,” or to “determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing.” When a court relies upon a disputed fact as the
basis for sentencing, the government must establish the fact by a preponderance of
the evidence. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995).
Anderson’s argument on appeal rests on a single statement made by the
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district court at sentencing: “I have not seen a more active actual seller of drugs in
a long time; many conspiracies that involve a greater amount, but not active literal
selling, passing, distributing the drugs.” Pointing only to the sentence’s inclusion
of the words, “many conspiracies,” while ignoring the sentence’s plain meaning,
Anderson claims the district court found him to have been part of “extensive
multiple conspiracies,” even though the undisputed evidence supported a finding
of only a single conspiracy. Based on this tortured interpretation of the court’s
statement, Anderson concludes that the court must have improperly relied on
disputed facts originating from the confidential informant, in violation of Fed. R.
Crim. P. 32(i)(3)(B).
We agree with the government that Anderson has “substantially
misconstrue[d] the district court’s explanation.” It is clear that the district court’s
statement was contrasting the high level of distribution activity in this case with
other conspiracies involving a greater amount of drugs than involved in
Anderson’s case but less active distribution. Thus, contrary to Anderson’s
assertion, the district court never based its sentencing decision on a finding of
“many conspiracies.”
Furthermore, we emphasize that the district court explicitly stated that it
would not consider the disputed facts contained in paragraphs 7 and 8 of the PSI
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in making a sentencing determination. Beyond this, the court noted Anderson’s
objections to the two paragraphs when it adopted the findings in the PSI;
specifically refuted reliance upon the disputed facts when Anderson’s counsel
voiced concern that the court had done so; and substantiated its finding of
Anderson’s “active distribution” by citing the undisputed facts regarding the
number of pre-packaged baggies and other cocaine that were recovered from both
Anderson’s residence and vehicle. We therefore conclude that the district court
did not improperly rely on disputed facts in determining Anderson’s sentence.
Finally, Anderson has failed to establish procedural error. In evaluating
procedural reasonableness, we must ensure that the district court committed “no
significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.” United States v. Saac, 632 F.3d 1203,
1212 (11th Cir. 2011). Beyond the discussion set out above, the district court
expressly stated that it considered the Guidelines, the undisputed factual
allegations in the PSI, and the § 3553 factors prior to sentencing.
For all of these reasons, we affirm Anderson’s sentence.
AFFIRMED.
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