United States v. Angela Cheek Montgomery , 165 F. App'x 840 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13935 FEBRUARY 7, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00307-CR-2-KOB-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ANGELA CHEEK MONTGOMERY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 7, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
The government appeals the district court’s sentence of eight months’
imprisonment imposed on Angela Cheek Montgomery, following her conviction
for bank fraud in violation of 18 U.S.C. § 1344(1). The government argues that the
district court did not give sufficient reasons for the sentence it imposed in
compliance with 18 U.S.C. § 3553(c)(2) such that we cannot engage in meaningful
appellate review and that Montgomery’s sentence is unreasonable in light of both
the record and the sentencing factors contained in 18 U.S.C. § 3553(a).1
I.
Under 18 U.S.C. § 3553(c)(2), a district court must state sufficiently specific
reasons for its departure from the applicable guidelines range so that an appellate
court can engage in meaningful review. United States v. Suarez, 939 F.2d 929,
933 (11th Cir. 1991). “When evaluating a district court’s reasons for imposing a
particular sentence, [we] may consider the entire sentencing hearing and need not
rely upon the district court’s summary statement made at the closing of the
sentencing hearing.” Id. at 934. We have long mandated sufficient findings to
permit meaningful appellate review and have vacated with directions when that
was not the case. See United States v. Butler, 41 F.3d 1435, 1437 (11th Cir. 1995)
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Montgomery argues that we do not have jurisdiction over this appeal because the
government did not submit evidence that it had obtained proper approval to prosecute this appeal
pursuant to 18 U.S.C. § 3742(b). This argument is without merit. See United States v. Abbell,
271 F.3d 1286, 1290 n.1 (11th Cir. 2001) (noting that the requirement that the government
obtain approval under § 3742(b) to prosecute an appeal is not jurisdictional).
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(vacating sentences and remanding for further proceedings because the district
court did not make sufficient factual findings to permit meaningful appellate
review).
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), made the sentencing guidelines advisory and subjected sentences to an
unreasonableness review on appeal. Booker, 125 S.Ct. at 764-66. In sentencing,
district courts must still consult the guidelines and correctly calculate the
guidelines range. United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
(citing Booker). After doing this, the district court must consider the sentencing
factors in § 3553(a) to determine a reasonable sentence, which may be more severe
or more lenient than that provided for in the guidelines range. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005); Crawford, 407 F.3d at 1179. Nothing
in Booker altered the § 3553(c)(2) requirement that a district court state reasons for
its departure from the applicable guidelines range. The district court is obligated to
give reasons for its departure from the guidelines, but does not have to give
specific reasons for each § 3553(a) factor it considered in arriving at a reasonable
sentence. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (noting
that a district court’s statement that it considered the defendant’s arguments and the
§ 3553(a) factors alone is sufficient in a post-Booker sentence) (sentence imposed
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within guideline range).
Because the district court specifically identified the procedure it followed to
determine Montgomery’s sentence and gave reasons for the sentence it imposed,
we can engage in meaningful appellate review. The district court correctly
calculated the guidelines range in compliance with Booker, took the range under
advisement, rejected it, and instead imposed a discretionary sentence, which it
found to be reasonable based on several specific factors in § 3553(a). In addition
to the statement made by the district court, an examination of the sentencing
transcript and the PSI allows us to review Montgomery’s sentence to determine if
it is unreasonable in light of the § 3553(a) factors. The district court made clear
that it was going below the guideline range based on its post-Booker discretion and
consideration of several factors in § 3553(a). Thus, the district court gave
sufficient justifications for its sentence in compliance with § 3553(c)(2) and Scott,
and we can engage in meaningful appellate review.
II.
After the district court has accurately calculated the guideline range, it “may
impose a more severe or more lenient sentence” that we review for reasonableness.
Crawford, 407 F.3d at 1178-79. Such review is deferential, requiring us to
“evaluate whether the sentence imposed by the district court fails to achieve the
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purposes of sentencing.” Talley, 431 F.3d at 788. Moreover, the reasonableness
standard is applied to the ultimate sentence, not each individual decision made
during the sentencing process. United States v. Winingear, 422 F.3d 1241, 1245
(11th Cir. 2005).
In reviewing a sentence for reasonableness, we should be guided by the
factors in 18 U.S.C. § 3553(a). Winingear, 422 F.3d at 1246. Relevant factors
include: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
the offense, afford adequate deterrence to criminal conduct, protect the public from
other crimes by the defendant, and the need to provide defendant with needed
medical care; (3) the available sentences; and (4) the guidelines range. 18 U.S.C.
§ 3553(a)(1)-(4). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in § 3553(a).” Talley, 431 F.3d at 788.
District courts do not need to establish the reasonableness of the sentences
they impose by explicitly considering every factor from § 3553(a) on the record;
some indication in the record that the court adequately and properly considered
appropriate factors in conjunction with the sentence will be sufficient. Scott, 426
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F.3d at 1329 (imposing sentence at low end of guidelines range).
Here, the district court indicated that it considered several specific § 3553(a)
factors in imposing Montgomery’s sentence, including the seriousness of the
offense (which the court thought was overstated by the guidelines range), just
punishment, adequate deterrence, the history and characteristics of Montgomery,
the need to provide restitution, and the need to provide the defendant with needed
medical care for her mental illness.
Based on the § 3553(a) factors, Montgomery’s sentence is reasonable. For
instance, this crime was Montgomery’s first and only offense. Restitution was an
important component in providing punishment for the offense, and the district
court recognized this in ordering Montgomery to pay a large amount of restitution
and sentencing her to the maximum five years of supervised release in order to
make restitution payments. Based on her lack of a criminal history, Montgomery
is unlikely to commit further crimes in the future such that she would need a
lengthy period of incarceration to protect the public. The record also indicates that
Montgomery had a history of mental illness, which the district court took into
account in fashioning its sentence. Finally, the eight-month sentence imposed was
available after Booker because the district court was free to impose a sentence
below the applicable guideline range after it had been calculated correctly.
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Based on the foregoing, the sentence is reasonable and we affirm the district
court.
AFFIRMED.
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