The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15871 ELEVENTH CIRCUIT
JUNE 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20586-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEOPOLDO JAIME BRYAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 25, 2010)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
After a series of controlled buys and a consensual search netted crack
cocaine, powder cocaine, and a firearm, Leopoldo Jaime Bryan pleaded guilty to
several counts of possession with intent to distribute crack cocaine, in violation of
21 U.S.C. § 841, and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g). In pleading guilty, Bryan admitted that the amount of drugs
involved was 162.72 grams of crack cocaine and 191.91 grams of powder cocaine.
When the probation officer calculated the applicable guideline range, the
offenses were grouped together and the amount of drugs was converted to its
marijuana equivalency, which resulted in over 3,292 kilograms of marijuana and a
base offense level of 32. The probation officer noted that, due to his criminal
history, Bryan qualified as an armed career criminal, which enhanced his offense
level to 37 and set his criminal history category as VI. Bryan received a 3-level
reduction due to his acceptance of responsibility. With an adjusted offense level of
34 and a criminal history category of VI, the resulting guideline range was 262 to
327 months’ imprisonment. The firearm offense carried a mandatory minimum
sentence of fifteen years’ imprisonment.
Bryan raised no objections to the guideline calculations and requested the
court sentence him to the mandatory minimum of fifteen years’ imprisonment in
consideration of the disparity between crack cocaine and powder cocaine
sentencing schemes and in light of his age, which meant that he would be over 70
years old when he finished serving the mandatory minimum sentence.
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Although the district court acknowledged the sentencing disparity when
crack cocaine was involved, the court rejected Bryan’s request for a mandatory
minimum sentence. The court explained, “I’m prepared to uphold and enforce the
law,” but stated that although Congress had changed the guidelines to reflect the
disparity, there had been no change to statutory minimum sentences. The court
then stated,
I just wish that some of the proponents of the change in the guidelines
[to adjust for the crack cocaine disparity] would step through the . . .
Neonatal Intensive Care Unit . . . and witness firsthand newborn
children on incubators and ventilators that came into the world
addicted to crack cocaine and tell me that there isn’t a difference
between powder and crack.
The court noted Bryan’s extensive criminal history and considered Bryan’s
arguments and the advisory guideline range before sentencing Bryan within the
guideline range to 300 months’ imprisonment. This appeal followed.
Bryan raises two issues on appeal. First, he argues that the district court
committed procedural error by treating the crack cocaine guidelines as mandatory.
He contends that remand is warranted because the court referred to the guidelines
as advisory, but treated Congress’s decision not to amend the guidelines as
established law that it was required to uphold. Second, he argues that the court
violated his due process rights by relying on its own misperception regarding the
prenatal effects of crack versus powder cocaine, in determining his sentences. We
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address each in turn.
I.
We review the reasonableness of a district court’s sentence under a
deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.
38, 41 (2007). The district court is required to impose a sentence that is
“sufficient, but not greater than necessary to comply with the purposes” listed in 18
U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from the defendant’s future criminal conduct, and
provide the defendant with needed educational or vocational training or medical
care. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. at § 3553(a)(1), (3)-(7).
In reviewing the procedural reasonableness of a sentence, we must ensure
that the district court (1) properly calculated the guideline range, (2) treated the
guidelines as advisory, (3) considered the § 3553(a) factors, (4) did not select a
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sentence based on clearly erroneous facts, and (5) adequately explained the chosen
sentence. Gall, 552 U.S. at 51. Like all of the sentencing guidelines, the
guidelines relating to crack and cocaine are only advisory. Kimbrough v. United
States, 552 U.S. 85, 91 (2007). As a result, courts “may consider the disparity
between the Guidelines’ treatment of crack and powder cocaine offenses” in
determining whether a within-guidelines sentence is greater than necessary to
accomplish the purposes set forth in § 3553(a)(2). Id.
Here, the district court referred to the guidelines as advisory and expressly
considered non-guideline sentences pursuant to the § 3553(a) factors. Although
the court stated that it could consider the disparity between crack cocaine and
powder cocaine in determining an appropriate sentence, it was unwilling to do so
in Bryan’s case given his lengthy criminal history and classification as an armed
career offender. Because the court properly calculated the guideline range, treated
the guidelines as advisory, considered the § 3553(a) factors, and adequately
explained its reasoning, we conclude Bryan’s sentences are procedurally
reasonable.
II.
We review questions of constitutional law de novo. United States v. Ward,
486 F.3d 1212, 1221 (11th Cir. 2007). When a defendant raises a constitutional
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challenge to his sentence for the first time on appeal, however, we review only for
plain error. Id. To meet this burden, the defendant must show that there is
“(1) error, (2) that is plain, [] (3) that affects substantial rights,” and “(4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
A court may consider out-of-court information in determining a sentence as
long as the information is reliable and the defendant has an opportunity to refute it.
United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). To establish a due
process violation based on the sentencing court’s reliance on false or unreliable
information, the defendant must show: “(1) that the challenged evidence is
materially false or unreliable, and (2) that it actually served as the basis for the
sentence.” Id. We will remand for a new sentencing hearing only if the defendant
meets this burden. Id.
Here, we conclude that Bryan cannot meet this standard. Even if we assume
that the out-of-court information was unreliable, Bryan did not demonstrate that
the court actually relied on this information in sentencing him within the advisory
guideline range. See Reme, 738 F.2d at 1167. The court had already indicated that
it would not sentence Bryan below the guideline range when it made the comment
about crack-addicted babies. Bryan has not shown that the court’s statement
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influenced the sentences imposed.
For the foregoing reasons, Bryan’s sentences are
AFFIRMED.
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