USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-10995 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEON KING, a.k.a. PK,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:05-cr-00355-WFJ-MRM-1 USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 2 of 6
2 Opinion of the Court 23-10995
Before WILSON, LUCK, and MARCUS, Circuit Judges. PER CURIAM: Leon King appeals his within-range sentence of 36 months’ imprisonment with no supervised release imposed upon revoca- tion of supervised release. On appeal, King argues that his sentence was procedurally unreasonable because the district court failed to adequately explain its sentencing decision and failed to directly ad- dress King’s arguments in mitigation of his sentence. After careful review, we affirm. We review a sentence imposed upon revocation of super- vised release for reasonableness. United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir. 2016). If a party does not raise a procedural sentencing argument before the district court, we generally review only for plain error. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). To establish plain error, the appellant must show (1) error, (2) that was plain, and (3) that affected his substantial rights. Id. If these three conditions are satisfied, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Section 3553(c) requires that a district court state in open court at the time of sentencing the reasons for its imposition of the particular sentence. 18 U.S.C. § 3553(c). It further requires that if a sentence is within the guideline range and “that range exceeds 24 months,” the court must specify “the reason for imposing a USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 3 of 6
23-10995 Opinion of the Court 3
sentence at a particular point within the range.” Id. § 3553(c)(1). Notably, § 3553(c)(1) applies only where the span of the guideline range exceeds 24 months. See United States v. Pippin, 903 F.2d 1478, 1484–85 (11th Cir 1990) (stating that § 3553(c)(1) did not apply where the span of the guideline range was only six months). Sec- tion 3553(c) also requires that if a sentence is outside the guideline range, the court must state “the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form.” Id. § 3553(c)(2). We’ve said that we will review challenges that a dis- trict court failed to comply with § 3553(c)(1) or (c)(2) de novo, even if the appellant did not object in the district court. United States v. Parks, 823 F.3d 990, 996 (11th Cir. 2016) (§ 3553(c)(2)); United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006) (§ 3553(c)(1)). Section 3553(c) does not require a full opinion in every case. See Rita v. United States, 551 U.S. 338, 356 (2007). Instead, when explaining a sentence, the district court judge must “set forth enough to satisfy the appellate court that he has considered the par- ties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Id. A sentence imposed within the guideline range will “not necessarily require lengthy explanation,” where the circumstances may make clear that the judge relies on the Sentencing Commission’s reasoning that a sentence within the guideline range is proper in a typical case and that the present case is typical. Id. at 356–57. The appropriateness of the length and de- tail of what to write depends on the circumstances of the case, and USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 4 of 6
4 Opinion of the Court 23-10995
“[t]he law leaves much, in this respect, to the judge’s own profes- sional judgment.” Id. at 356. When a district court considers a party’s nonfrivolous argu- ments, it is “not required to be persuaded by every argument par- ties make, and it may, in its discretion, dismiss arguments that it does not find compelling without a detailed explanation.” Concep- cion v. United States, 597 U.S. 481, 501 (2022). The district court’s acknowledgement that it considered the defendant’s arguments at sentencing and the § 3553(a) factors is sufficient explanation for a particular sentence. United States v. Tinker, 14 F.4th 1234, 1241 (11th Cir. 2021). In other words, the court need not specifically discuss each § 3553(a) factor so long as the record reflects that the court considered those factors. United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010). Similarly, the failure to discuss mitigat- ing evidence does not indicate that the court “erroneously ‘ig- nored’ or failed to consider this evidence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Here, even under de novo review, King’s 36-month sentence was procedurally reasonable.1 At the hearing, the district court said
1 While King says plain error review applies, the government argues that de novo review applies since we review de novo challenges that a district court’s explanation did not comply with § 3553(c)(1). See Bonilla, 463 F.3d at 1181. However, that provision does not apply here because King’s guideline range before application of the statutory maximum was 33 to 41 months, which spans eight months and is not a range with a span that “exceeds 24 months.” See 18 U.S.C. § 3553(c)(1); Pippin, 903 F.2d at 1484–85. We’ve not yet decided whether de novo review applies to an unpreserved challenge to the adequacy USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 5 of 6
23-10995 Opinion of the Court 5
that it had “heard from the defense and from the government” and “reviewed the 18 U.S.C. 3553
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USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 1 of 6
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-10995 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEON KING, a.k.a. PK,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:05-cr-00355-WFJ-MRM-1 USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 2 of 6
2 Opinion of the Court 23-10995
Before WILSON, LUCK, and MARCUS, Circuit Judges. PER CURIAM: Leon King appeals his within-range sentence of 36 months’ imprisonment with no supervised release imposed upon revoca- tion of supervised release. On appeal, King argues that his sentence was procedurally unreasonable because the district court failed to adequately explain its sentencing decision and failed to directly ad- dress King’s arguments in mitigation of his sentence. After careful review, we affirm. We review a sentence imposed upon revocation of super- vised release for reasonableness. United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir. 2016). If a party does not raise a procedural sentencing argument before the district court, we generally review only for plain error. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). To establish plain error, the appellant must show (1) error, (2) that was plain, and (3) that affected his substantial rights. Id. If these three conditions are satisfied, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Section 3553(c) requires that a district court state in open court at the time of sentencing the reasons for its imposition of the particular sentence. 18 U.S.C. § 3553(c). It further requires that if a sentence is within the guideline range and “that range exceeds 24 months,” the court must specify “the reason for imposing a USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 3 of 6
23-10995 Opinion of the Court 3
sentence at a particular point within the range.” Id. § 3553(c)(1). Notably, § 3553(c)(1) applies only where the span of the guideline range exceeds 24 months. See United States v. Pippin, 903 F.2d 1478, 1484–85 (11th Cir 1990) (stating that § 3553(c)(1) did not apply where the span of the guideline range was only six months). Sec- tion 3553(c) also requires that if a sentence is outside the guideline range, the court must state “the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form.” Id. § 3553(c)(2). We’ve said that we will review challenges that a dis- trict court failed to comply with § 3553(c)(1) or (c)(2) de novo, even if the appellant did not object in the district court. United States v. Parks, 823 F.3d 990, 996 (11th Cir. 2016) (§ 3553(c)(2)); United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006) (§ 3553(c)(1)). Section 3553(c) does not require a full opinion in every case. See Rita v. United States, 551 U.S. 338, 356 (2007). Instead, when explaining a sentence, the district court judge must “set forth enough to satisfy the appellate court that he has considered the par- ties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Id. A sentence imposed within the guideline range will “not necessarily require lengthy explanation,” where the circumstances may make clear that the judge relies on the Sentencing Commission’s reasoning that a sentence within the guideline range is proper in a typical case and that the present case is typical. Id. at 356–57. The appropriateness of the length and de- tail of what to write depends on the circumstances of the case, and USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 4 of 6
4 Opinion of the Court 23-10995
“[t]he law leaves much, in this respect, to the judge’s own profes- sional judgment.” Id. at 356. When a district court considers a party’s nonfrivolous argu- ments, it is “not required to be persuaded by every argument par- ties make, and it may, in its discretion, dismiss arguments that it does not find compelling without a detailed explanation.” Concep- cion v. United States, 597 U.S. 481, 501 (2022). The district court’s acknowledgement that it considered the defendant’s arguments at sentencing and the § 3553(a) factors is sufficient explanation for a particular sentence. United States v. Tinker, 14 F.4th 1234, 1241 (11th Cir. 2021). In other words, the court need not specifically discuss each § 3553(a) factor so long as the record reflects that the court considered those factors. United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010). Similarly, the failure to discuss mitigat- ing evidence does not indicate that the court “erroneously ‘ig- nored’ or failed to consider this evidence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Here, even under de novo review, King’s 36-month sentence was procedurally reasonable.1 At the hearing, the district court said
1 While King says plain error review applies, the government argues that de novo review applies since we review de novo challenges that a district court’s explanation did not comply with § 3553(c)(1). See Bonilla, 463 F.3d at 1181. However, that provision does not apply here because King’s guideline range before application of the statutory maximum was 33 to 41 months, which spans eight months and is not a range with a span that “exceeds 24 months.” See 18 U.S.C. § 3553(c)(1); Pippin, 903 F.2d at 1484–85. We’ve not yet decided whether de novo review applies to an unpreserved challenge to the adequacy USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 5 of 6
23-10995 Opinion of the Court 5
that it had “heard from the defense and from the government” and “reviewed the 18 U.S.C. 3553(a) factors and the advisory guidelines and policies.” The court said it was imposing a 36-month sentence -- King’s advisory range was 33 to 41 months’ imprisonment, but it was capped at 36 months due to a statutory maximum penalty -- and discussed King’s criminal history, which was at a criminal his- tory category VI before his federal conviction, and then King com- mitted the prior offense that “resulted in a lengthy sentence.” On top of this, the court noted, King committed the recent trafficking conviction that led to the instant revocation proceedings, which would make King’s criminal history “a six-plus-plus at this point.” The court added the sentence was justified by the need for King’s “personal specific deterrence and protecting the public from the continued recidivism.” 2 All told, the record reflects that in impos- ing King’s sentence, the district court considered the parties’ argu- ments and had a reasoned basis for exercising its decision-making authority. Rita, 551 U.S. at 356. It’s also worth noting that the dis- trict court’s sentence was within the guideline range, which gener- ally will not require a lengthy explanation. See id. at 356–57.
of the district court’s explanation of a sentence that does not fall within § 3553(c)(1) or (c)(2). But because, as we’ll explain, King’s sentence is procedur- ally reasonable under de novo review, we need not resolve this issue. 2 In making its remarks, the court used the term “variance,” but in context, it is clear that the court was explaining why it had imposed a sentence at 36 months, the upper end of the guideline range, as opposed to 33 months, the bottom of the guideline range. USCA11 Case: 23-10995 Document: 28-1 Date Filed: 11/20/2023 Page: 6 of 6
6 Opinion of the Court 23-10995
As for King’s claim that the district court improperly failed to specifically address his mitigating arguments, the record does not indicate that the court failed to consider those arguments. To the contrary, the court stated that it had read King’s sentencing memorandum and had heard counsel’s remarks at the sentencing hearing, both of which contained his mitigation arguments. More- over, the district court thanked King and his counsel at the conclu- sion of each of their arguments and said that he appreciated their comments, further indicating that it considered the parties’ argu- ments. There is simply nothing in the record to suggest that the court “erroneously ‘ignored’ or failed to consider this evidence.” Amedeo, 487 F.3d at 833. Nor is there any merit to King’s attempts to draw a distinction between the court’s statements that it “heard” his argument as opposed to “considered” it. The length and detail of the district court’s sentence is largely left to the professional judgment of the judge, and the court may use its discretion to dis- miss arguments it does not find compelling without detailed expla- nation, as the district court did here. Rita, 551 U.S. at 356; Concep- cion, 597 U.S. at 501. In short, King has not demonstrated that the district court failed to adequately explain his sentence or otherwise procedurally erred, and we affirm. AFFIRMED.