United States v. Joseph D. Baughns , 542 F. App'x 875 ( 2013 )


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  •           Case: 12-16405   Date Filed: 10/25/2013   Page: 1 of 8
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-16405
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:12-cr-00012-CAR-CHW-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSEPH D. BAUGHNS,
    Defendant-Appellant.
    ________________________
    No. 12-16406
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:08-cr-00016-CAR-CHW-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JOSEPH D. BAUGHNS,
    Defendant-Appellant.
    Case: 12-16405     Date Filed: 10/25/2013   Page: 2 of 8
    ________________________
    Appeals from the United States District Court
    for the Middle District of Georgia
    ________________________
    (October 25, 2013)
    Before MARCUS, PRYOR and MARTIN, Circuit Judges.
    PER CURIAM:
    In this consolidated appeal, Joseph Baughns appeals his 85-month total
    sentence, imposed after pleading guilty to one count of being a felon in possession
    of a firearm, in violation of 
    18 U.S.C. § 922
    (g)(1), and revocation of his supervised
    release, 
    18 U.S.C. § 3583
    (e)(3), on an earlier felon in possession of a firearm
    conviction. On appeal, Baughns argues that: (1) the district court’s decision to run
    his 61-month sentence for the conviction offense and the 24-month sentence for
    the revocation of supervised release consecutively was procedurally unreasonable,
    because the district court failed to explain why it was imposing the sentences
    consecutively; and (2) his 61-month, above-guideline sentence is substantively
    unreasonable because the district court gave no weight to Baughns’s mitigating
    evidence. The government argues that Baughns waived any right to a direct appeal
    of the substantive reasonableness of his 61-month sentence because of an appeal-
    waiver provision in his plea agreement. After careful review, we affirm.
    2
    Case: 12-16405       Date Filed: 10/25/2013       Page: 3 of 8
    We review the sentence a district court imposes for “reasonableness,” which
    “merely asks whether the trial court abused its discretion.” United States v. Pugh,
    
    515 F.3d 1179
    , 1189 (11th Cir. 2008) (quoting Rita v. United States, 
    551 U.S. 338
    ,
    351 (2007)). We review the validity of a sentence appeal waiver de novo. United
    States v. Johnson, 
    541 F.3d 1064
    , 1066 (11th Cir. 2008).
    In reviewing sentences for reasonableness, we typically perform two steps.
    Pugh, 
    515 F.3d at 1190
    . First, we “‘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—including an explanation for any
    deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)).1 The district court is not, however, required to discuss all of the §
    3553(a) factors in explaining its sentencing decision. United States v. Talley, 
    431 F.3d 784
    , 786 (11th Cir. 2005).
    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 for the sentence imposed 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 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. 
    18 U.S.C. § 3553
    (a).
    3
    Case: 12-16405    Date Filed: 10/25/2013   Page: 4 of 8
    Relevant to the procedural reasonableness of the district court’s sentence in
    this case are the law and Sentencing Guidelines concerning consecutive sentences.
    The United States Code provides that “[t]he [district] court, in determining whether
    the terms imposed are to be ordered to run concurrently or consecutively, shall
    consider, as to each offense for which a term of imprisonment is being imposed,
    the factors set forth in section 3553(a).” 
    18 U.S.C. § 3584
    (b). Further, the
    Sentencing Guidelines provide that “[a]ny term of imprisonment imposed upon the
    revocation of probation or supervised release shall be ordered to be served
    consecutively to any sentence of imprisonment that the defendant is serving.”
    U.S.S.G. § 7B1.3(f).     The commentary to § 7B1.3 also says that “it is the
    Commission’s recommendation that any sentence of imprisonment for a criminal
    offense that is imposed after revocation of probation or supervised release be run
    consecutively to any term of imprisonment imposed upon revocation.”           Id. §
    7B1.3, comment. (n.4).
    If we conclude that the district court did not procedurally err, we consider
    the “‘substantive reasonableness of the sentence imposed under an abuse-of-
    discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 
    515 F.3d at 1190
     (quoting Gall, 
    552 U.S. at 51
    ). Applying “deferential” review, we
    must determine “whether the sentence imposed by the district court fails to achieve
    the purposes of sentencing as stated in section 3553(a).” Talley, 
    431 F.3d at 788
    .
    4
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    “[W]e will not second guess the weight (or lack thereof) that the [court] accorded
    to a given factor ... as long as the sentence ultimately imposed is reasonable in light
    of all the circumstances presented.” United States v. Snipes, 
    611 F.3d 855
    , 872
    (11th Cir. 2010) (quotation, alteration and emphasis omitted), cert. denied, 
    131 S.Ct. 2962
     (2011). We will not reweigh the relevant § 3553(a) factors, and will not
    remand for resentencing unless the district court committed a clear error of
    judgment in weighing the § 3553(a) factors by imposing a sentence outside the
    range of reasonable sentences.     United States v. Langston, 
    590 F.3d 1226
    , 1237
    (11th Cir. 2009). A district court’s unjustified reliance upon any one § 3553(a)
    factor may be a symptom of an unreasonable sentence. United States v. Crisp, 
    454 F.3d 1285
    , 1292 (11th Cir. 2006). A district court’s failure to give mitigating
    factors the weight a defendant contends they deserve, however, does not render the
    sentence unreasonable. United States v. Lebowitz, 
    676 F.3d 1000
    , 1016-17 (11th
    Cir. 2012), cert. denied, 
    133 S.Ct. 1492
     (2013). A sentence imposed well below
    the statutory maximum penalty is an indicator of a reasonable sentence. See
    United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir. 2008). The party
    challenging the sentence bears the burden to show it is unreasonable. United
    States v. Tome, 
    611 F.3d 1371
    , 1378 (11th Cir.), cert. denied, 
    131 S.Ct. 674
    (2010).
    5
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    Here, Baughns has failed to demonstrate that the district court imposed a
    procedurally unreasonable sentence by denying his request for concurrent
    sentences on his supervised release revocation and felon in possession of a firearm
    conviction. The district court expressly said that it considered the § 3553(a)
    factors in imposing the sentence. After the district court imposed the consecutive
    sentences, it specifically explained its consideration of the § 3553(a) factors,
    including: Baughns’s criminal history; the nature and circumstances of the current
    felon in possession of a firearm offense, and its similarities to his previous felon in
    possession of a firearm offense; Baughns’s history and characteristics; the need for
    adequate deterrence; and the need to protect the public from further criminal
    activity by Baughns.      Contrary to Baughns’s assertion, the district court’s
    discussion of the § 3553(a) factors was in no way “cursory.” Although the district
    court did not specifically discuss how the § 3553(a) factors justified the
    consecutive nature of the sentence, Baughns points to no authority requiring the
    court to do so. In any event, there is no requirement that the district court even
    discuss all the § 3553(a) factors. See Talley, 
    431 F.3d at 786
    . Furthermore, by
    imposing consecutive sentences, the district court followed the § 3553(a)(5) factor
    of the policies and recommendations of the Sentencing Commission regarding
    revocation of supervised release. See U.S.S.G. § 7B1.3; 
    18 U.S.C. § 3553
    (a)(5).
    6
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    Turning to substantive reasonableness, we first must determine whether
    Baughns has waived his right to appeal this issue through the appeal waiver in his
    plea agreement.     A sentence appeal waiver will be enforced if it was made
    knowingly and voluntarily. United States v. Bushert, 
    997 F.2d 1343
    , 1350-51
    (11th Cir. 1993).     To establish that the waiver was made knowingly and
    voluntarily, the government must show either that (1) the district court specifically
    questioned the defendant about the waiver during the plea colloquy, or (2) the
    record makes clear that the defendant otherwise understood the full significance of
    the waiver. 
    Id. at 1351
    .
    We have enforced an appeal waiver where “the waiver provision was
    referenced during [the defendant’s] Rule 11 plea colloquy and [the defendant]
    agreed that [he] understood the provision and that [he] entered into it freely and
    voluntarily.” United States v. Weaver, 
    275 F.3d 1320
    , 1333 (11th Cir. 2001). An
    appeal waiver “cannot be vitiated or altered by comments the court makes during
    sentencing.” United States v. Bascomb, 
    451 F.3d 1292
    , 1297 (11th Cir. 2006).
    In this case, Baughns’s appeal waiver is valid. Baughns acknowledged that
    he understood that he could not appeal the sentence imposed by the district court
    “except for very limited reasons.” Additionally, Baughns agreed that he “freely
    and voluntarily waive[d] [his] right to appeal [his] sentence except under limited
    circumstances.” Although the district court did not engage in a long discussion
    7
    Case: 12-16405        Date Filed: 10/25/2013        Page: 8 of 8
    about the appeal waiver with Baughns, the district court certainly did more than
    simply “reference” the waiver and Baughns certainly agreed that he understood the
    provision and entered into it freely and voluntarily.                     Finally, although the
    presentence investigation report (“PSI”) stated that Baughns retained the right to
    appeal if the district court imposed a sentence greater than the advisory guideline
    range, this does not render the appeal waiver invalid. Because an appeal waiver
    cannot be “vitiated or altered” by a district court’s comments during sentencing, it
    likewise cannot be “vitiated or altered” by a probation officer in his preparation of
    the PSI. Therefore, because Baughns’s appeal waiver only preserved his right to
    appeal in the event of an upward departure under U.S.S.G. §§ 5K2.0 or 4A1.3,
    Baughns has waived his right to appeal the imposition of his 61-month sentence.2
    AFFIRMED.
    2
    In any event, the issue is meritless. As we’ve discussed, the district court said that it had
    considered the various § 3553(a) factors and expressly addressed several of the factors and how
    they affected the district court’s sentencing decision.
    8