United States v. Gabriel Joel McPherson , 267 F. App'x 860 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
February 29, 2008
No. 07-13069 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00055-CR-JOF-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL JOEL MCPHERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 29, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Gabriel Joel McPherson appeals his 37-month sentence imposed after he
pled guilty to one count of escaping from a federal institution in violation of 18
U.S.C. § 751(a). McPherson argues that the district court imposed a substantively
unreasonable sentence because it failed to consider the nonviolent nature of the
offense and McPherson’s self-surrender. Additionally, McPherson argues that the
district court failed to explain why a 37-month sentence was necessary, in light of
the fact that a person escaping from a more secure facility would get the same
sentence. For the reasons set forth below, we affirm.
“‘In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.’” United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006)
(quoting United States v. Thomas, 446 F.3d 1348, 1349 (11th Cir. 2006)). This
reasonableness standard is deferential. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005) (per curiam). The Supreme Court recently clarified this standard
as a review for abuse of discretion. Gall v. United States, — U.S. —, 128 S. Ct.
586, 594, 169 L. Ed. 2d 445 (2007). Specifically, the district court must impose a
sentence that is both procedurally and substantively reasonable. Id. at 597. Only
the substantive reasonableness of McPherson’s sentence is at issue here.
Substantive reasonableness involves inquiring whether the court abused its
discretion in determining that the statutory factors in 18 U.S.C. § 3553(a) support
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the sentence in question. Id. at 597, 600. Pursuant to § 3553(a), the sentencing
court shall impose a sentence “sufficient, but not greater than necessary” to comply
with the purposes of sentencing listed in § 3553(a)(2), namely reflecting the
seriousness of the offense, promoting respect for the law, providing just
punishment for the offense, deterring criminal conduct, protecting the public from
future criminal conduct by the defendant, and providing the defendant with needed
educational or vocational training or medical care. See 18 U.S.C. § 3553(a)(2).
Section 3553(a) also requires the sentencing court to consider the nature and
circumstances of the offense, the Guidelines range, and the need to avoid
unwarranted sentence disparities. See 18 U.S.C. § 3553(a)(1), (4),(6). Finally, the
challenging party has the burden of establishing that the sentence is unreasonable.
United States v. Bohannon, 476 F.3d 1246, 1253 (11th Cir.), cert. denied, — U.S.
—, 127 S. Ct. 2953, 168 L. Ed. 2d 277 (2007).
We conclude that the district court did not abuse its discretion in sentencing
McPherson to 37-months’ imprisonment. McPherson’s Guidelines range was
calculated as 37–46 months. The district court addressed the factors and concerns
in § 3553(a), and McPherson has failed to show how the sentence is higher than
necessary to achieve the goals of §3553(a)(2). Consequently, McPherson has
failed to meet his burden of showing that the sentence is outside the range of
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reasonableness. Accordingly, we affirm his sentence of 37-months’ imprisonment.
AFFIRMED.
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