The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 18, 2007
No. 06-11556 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20140-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEWIS LAMB,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 18, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Johnny Lewis Lamb appeals his convictions and sentences for various
narcotics and firearms offenses on the grounds that (1) the district court abused its
discretion by failing to dismiss the indictment for pre-indictment delay; (2) the
post-indictment delay violated his right to a speedy trial under the Speedy Trial Act
and the Sixth Amendment; (3) the district court abused its discretion by allowing
the introduction of certain “extrinsic act” evidence; and (4) his sentence should be
vacated due to an erroneous career offender enhancement and because the sentence
is unreasonable. For the reasons that follow, we affirm.
I. BACKGROUND
On March 2, 2000, based on tip from a confidential informant, Miami Dade
Police officers searched a Miami residence suspected of being used as a “stash
house” for narcotics. The search resulted in the seizure of, inter alia, fourteen
firearms, one kilogram of powder cocaine, two-and-one-half pounds of marijuana,
narcotics packaging, and scales. In the bedroom, officers found a receipt for
cellular phone service containing Lamb’s name, a picture of Lamb standing next to
a vehicle in front of the premises, a martial arts certificate bearing Lamb’s name
hanging on the wall, and thirty utility bills for the residence in Lamb’s name.
On February of 2005, a federal grand jury in the Southern District of Florida
returned an indictment charging Lamb with various narcotics and firearms
offenses, and a warrant was issued for Lamb’s arrest. Specifically, the indictment
2
charged Lamb with: possession of firearms by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute five hundred or
more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)
(Count 2); possession with intent to distribute less than fifty kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 3); and
possession of firearms in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(I) (Count 4).
On March 11, 2005, a notice was entered deeming Lamb a fugitive from
justice.1 On June 16, 2005, Lamb was arrested on the charges stemming from the
drugs and firearms seized in 2000. During the arrest, Lamb consented to a search
of his apartment. Prior to the search, Lamb alerted officers that marijuana and
cocaine could be found on his night stand, and, during the search, officers found
marijuana, powder cocaine, crack cocaine, elastics, plastic baggies, a razor blade,
and cutting agents.
Lamb made his first appearance before a magistrate judge on June 17, 2005,
and on June 22, 2005, he was arraigned. On June 24, 2005, the district court
entered an order setting the trial date for the two-week period commencing on
August 8, 2005. On July 28, 2005, Lamb filed a motion to continue his trial on the
1
The record provides no insight into why Lamb was deemed a fugitive.
3
charges stemming from the 2000 incident for thirty days. In an order filed on
August 3, 2005, the court granted the motion, and the trial was set to commence
during the two-week period beginning September 6, 2005.
On August 30, 2005, a grand jury returned a superceding indictment adding
four additional counts based on the items found in Lamb’s residence on June 16,
2005. The superceding indictment added the following charges: possession with
intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii) (Count 5); possession with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 6); possession
with intent to distribute less than fifty kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(D) (Count 7); and renting an apartment for
purposes of manufacturing, storing, distributing, and using controlled substances,
in violation of 21 U.S.C. § 856(a)(2) (Count 8). On September 2, 2005, a grand
jury returned a second superceding indictment amending Count 5 to charge an
offense involving less than five grams of crack cocaine.
On September 12, 2005, Lamb filed a motion to dismiss the indictment due
to pre-indictment delay and to sever the counts pertaining to his 2000 conduct from
the counts pertaining to his 2005 conduct (if the dismissal was not granted). The
district court conducted a hearing on the motion on September 16, 2005. During
4
the hearing, the Government told the court that if severance were granted, it wished
to try the 2000 case first. The Government also argued that evidence pertaining to
Lamb’s 2005 arrest should be admissible in a trial of the 2000 offenses under
Federal Rule of Evidence 404(b). Lamb’s counsel argued that the defense needed
additional time to locate witnesses and that he would be on leave during the next
several days. The court granted Lamb’s motion for severance, agreed with the
Government’s contention that evidence pertaining to Lamb’s 2005 arrest should be
admissible in a trial of the 2000 offenses, and denied Lamb’s request to dismiss the
indictment.
In an order filed on September 21, 2005, the district court granted Lamb
another continuance, setting a trial date for the period beginning on October 31,
2005. On October 20, 2005, and November 22, 2005, Lamb made two additional
motions to continue the trial on the grounds that he needed more time to locate
defense witnesses. The district court granted both motions.
Lamb’s trial commenced on December 13, 2005, and the jury found him
guilty on all four counts stemming from his 2000 conduct. After Lamb’s
conviction, he pleaded guilty, without a plea agreement, to Count 5 of the
superceding indictment (which charged him with possession with intent to
distribute crack cocaine on June 16, 2005) in exchange for the Government’s
5
agreement to dismiss Counts 6, 7, and 8. Following a sentencing hearing, Lamb
was sentenced to 181 months imprisonment and six years of supervised release.
Lamb timely filed this appeal.
II. STANDARDS OF REVIEW
A district court’s decision to deny a motion to dismiss an indictment for pre-
indictment delay is reviewed for abuse of discretion. United States v. Foxman, 87
F.3d 1220, 1222 (11th Cir. 1996). A district court’s evidentiary rulings are also
reviewed for abuse of discretion. Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358,
1360 (11th Cir. 2002).
“Determination of whether a defendant’s constitutional right to a speedy trial
has been violated is a mixed question of law and fact. Questions of law are
reviewed de novo, and findings of fact are reviewed under the clearly erroneous
standard.” United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006)
(citations omitted). And under the Speedy Trial Act, we review conclusions of law
de novo, United States v. Brown, 285 F.3d 959, 961 (11th Cir. 2002), and the
district court’s factual determinations for clear error. United States v.
McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996).
We review a defendant’s ultimate sentence for reasonableness in light of the
factors set forth in 18 U.S.C. § 3553(a). United States v. Williams, 435 F.3d 1350,
6
1353 (11th Cir. 2006).
Errors raised for the first time on appeal, however, are reviewed for plain
error. United States v. Dowling, 403 F.3d 1242, 1249 (11th Cir. 2005).
III. ANALYSIS
A. Pre-indictment Delay
Lamb argues that the approximately five-year delay between the crimes of
conviction and his indictment violated his due process rights and that the district
court abused its discretion in denying his motion to dismiss the indictment on this
basis.2 Although the limit on pre-indictment delay is usually set by the statute of
limitations, the Due Process Clause can bar an indictment even when the
indictment is brought within the limitation period. Foxman, 87 F.3d at 1222. “To
prove a due process violation resulting from a pre-indictment delay, [a defendant]
must show: (1) actual prejudice to [his] defense from the delay; and (2) that the
delay resulted from a deliberate design by the government to gain a tactical
advantage.” United States v. Thomas, 62 F.3d 1332, 1339 (11th Cir. 1995)
(emphasis added). This court has held that when the delay was the result of pure
2
To the extent Lamb argues that the pre-indictment delay, in and of itself, violated the
Speedy Trial Act and the Sixth Amendment’s guarantee of a speedy trial, his contention is
without merit. The protections of the Speedy Trial Act do not apply until formal federal charges
are pending, United States v. Sanchez, 722 F.2d 1501, 1509 (11th Cir. 1984), and the Sixth
Amendment right to a speedy trial does not arise until a defendant is accused or arrested. United
States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).
7
negligence on the part of the government, “the delay cannot be attributed toward
the government’s deliberate attempt to gain an advantage,” and thus, there is no
due process violation. United States v. Benson, 846 F.2d 1338, 1343 (11th Cir.
1988).
Here, Lamb asserts that there is no evidence that the Government either
diligently pursued an indictment or engaged in an ongoing investigation during the
five years between March 2, 2000 (when the narcotics and firearms were found)
and February 18, 2005 (when he was initially indicted). He also argues that, at the
very least, remand is warranted to develop a more detailed record regarding the
Government’s reasons for the delayed indictment.
The record is devoid of any evidence that the Government delayed in
indicting Lamb to gain a tactical advantage. Indeed, the only record evidence as to
the reasons for the delay arises from the hearing on Lamb’s motion to dismiss,
wherein the prosecutor asserted that a “small part” of the delay was produced by
the Government’s efforts to find witnesses and that the rest of the delay was due to
the Government’s negligence. Because Lamb failed to present evidence to the
contrary, we agree with the district court’s determination that the delay was not the
product of intentional government acts designed to obtain a tactical advantage.
Accordingly, we need not reach the question of whether the delay caused Lamb
8
substantial prejudice. See Foxman, 87 F.3d at 1223 (“[S]ubstantial prejudice from
delay, standing alone, does not violate due process.”). Accordingly, we affirm the
district court’s denial of Lamb’s motion to dismiss for pre-indictment delay.
B. Post-indictment Delay
1. The Speedy Trial Act
Lamb argues that the delay between his indictment and his trial violated his
right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. The
Speedy Trial Act provides that a defendant must be tried within seventy days from
the filing of his indictment or information, or from the date on which he made his
first appearance before the court. 18 U.S.C. § 3161(c)(1). If the defendant is not
tried within the seventy-day time limit, the court must dismiss the indictment. 18
U.S.C. § 3161(a)(2). “The defendant must request this relief, however, and
‘[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of
guilty or nolo contendere shall constitute a waiver of the right to dismissal under
this section.’” United States v. Register, 182 F.3d 820, 828 (11th Cir. 1999)
(quoting 18 U.S.C. § 3161(a)(2)). And this court has refused to hear claims based
on the Speedy Trial Act that were not raised in the district court. See e.g., id. at
828; United States v. Stitzer, 785 F.2d 1506, 1520 (11th Cir. 1986); United States
v. Tenorio-Angel, 756 F.2d 1505, 1508 (11th Cir. 1985).
9
Here, Lamb never moved for dismissal under the Speedy Trial Act, and he
never made a formal demand for a speedy trial. Thus, we conclude that Lamb has
waived his right to the sanction of dismissal under the Act, and we need not reach
the issue of whether a violation of the Act occurred.
2. Sixth Amendment Right to a Speedy Trial
Lamb also argues that the post-indictment delay violated his Sixth
Amendment right to a speedy trial. Because Lamb raises this constitutional claim
for the first time on appeal, we review it for plain error only. United States v.
Hayes, 40 F.3d 362, 364 (11th Cir. 1994).
The Supreme Court has established a four-factor test (the “Barker factors”)
to determine whether a defendant has been deprived of his constitutional right to a
speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of the right; and (4) the actual prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2182, 33 L.Ed.2d 101 (1972).
The first factor serves a triggering function; unless the length of the delay is
presumptively prejudicial, we need not consider the remaining factors. Register,
182 F.3d at 827. A delay is considered “presumptively prejudicial” as it
approaches one year. United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003)
(citations omitted). “If, after the threshold inquiry is satisfied and the second and
10
third factor are considered, all three of these factors weigh heavily against the
Government, the defendant need not show actual prejudice (the fourth factor) to
succeed in showing a violation of his right to a speedy trial.” Ingram, 446 F.3d at
1336 (citation omitted).
In determining whether a delay is presumptively prejudicial, this court has
measured the length of the delay from the date of indictment to the date of trial.
See, e.g., id. at 1336-37; Dunn, 345 F.3d at 1296; United States v. Schlei, 122 F.3d
944, 987 (11th Cir. 1997); United States v. Twitty, 107 F.3d 1482, 1490 (11th Cir.
1997); Hayes, 40 F.3d at 365. Here, Lamb was initially indicted for the 2000
incident on February 18, 2005. His trial commenced on December 13, 2005. This
delay of ten months was approaching one year and, thus, was arguably
“presumptively prejudicial.” See Dunn, 345 F.3d at 1296. Accordingly, we
proceed to consider the remaining Barker factors.
As for the second factor, the reason for the delay, the record is unclear. For
example, the record provides no insight into the reasons for the delay between
Lamb’s initial indictment on February 18, 2005 and his arrest on June 17, 2005.3
3
Nothing in the record explains why Lamb was deemed a fugitive on March 11, 2005, or
why Lamb was not arrested until June 17, 2005. Indeed, Lamb asserts that throughout the pre-
and post-indictment period, he continued to live in the vicinity of the address where the drugs
and firearms were seized in 2000, and he claims he had worked at the local Humane Society
since 2001.
11
Yet the record does establish that Lamb’s multiple requests for continuances
produced the delay between his arrest and his trial. Although his trial date was
initially set for the two-week period commencing on August 8, 2005, Lamb moved
for, and was granted, four continuances. Nonetheless, the record also shows that
Lamb requested those continuances in order to obtain more time to locate defense
witnesses—time he likely would not have needed absent the five-year pre-
indictment delay, for which, as discussed above, he was not at fault. Thus, the
second Barker factor arguably weighs against the Government.
As for the third Barker factor, Lamb did not move to dismiss the indictment
on constitutional speedy trial grounds, and he did not make a demand for a speedy
trial. Thus, the third Barker factor does not weigh against the Government.
Because the first three Barker factors do not uniformly weigh heavily against
the Government, Lamb must demonstrate actual prejudice from the delay, “which
he may do in one of three ways: (1) oppressive pretrial incarceration, (2) anxiety
and concern of the accused, and (3) possibility that the accused’s defense will be
impaired.” Dunn, 345 F.3d at 1296 (citations omitted).
During the hearing on Lamb’s motion to dismiss for pre-indictment delay,
the district court determined that based on evidence of Lamb’s unsuccessful efforts
to locate defense witnesses, the five-year pre-indictment delay caused actual
12
prejudice to his defense. Thus, Lamb contends that the ten-month post-indictment
delay coupled with the approximately five-year pre-indictment delay caused him
actual prejudice by impairing his defense. The Government counters that the pre-
indictment delay is wholly irrelevant to the speedy trial analysis.
Although “[o]nly pretrial delay following a person’s arrest, charge, or
indictment is relevant to whether the Speedy Trial Clause of the Sixth Amendment
is triggered[,] . . . . once the Sixth Amendment’s speedy trial analysis is triggered,
it is appropriate to consider inordinate pre-indictment delay in determining how
heavily post-indictment delay weighs against the Government.” Ingram, 446 F.3d
at 1339 (citations omitted) (emphasis added). “Thus, the [ten-month]
post-indictment delay in this case weighs more heavily than a [ten-month] delay in
another case might if, in that case, the post-indictment delay began shortly after the
allegedly criminal acts occurred.” Id. But it does not follow that we analytically
transfer the actual prejudice, in toto, from the pre-indictment delay to the post-
indictment delay in our assessment of the fourth Barker factor.
Here, there is no evidence that the ten-month post-indictment delay, in and
of itself, actually prejudiced Lamb.4 Indeed, as discussed above, much of the post-
indictment delay resulted from continuances granted, at Lamb’s request, to aid his
4
Lamb does not contend that the post-indictment delay, in and of itself, resulted in actual
prejudice.
13
defense by giving him more time to locate defense witnesses. Thus, even weighing
the post-indictment delay more heavily against the Government than we otherwise
would in the absence of the pre-indictment delay, see id., we conclude that all four
Barker factors, considered as a whole, do not weigh sufficiently against the
Government to constitute a plain violation of the Sixth Amendment.
C. Admission of Evidence Under Rule 404(b)
Lamb also argues that the district court erred in admitting extrinsic evidence
of “other crimes” under Federal Rule of Evidence 404(b). Subject to specific
exceptions, Rule 404(b) provides that extrinsic evidence of other crimes, wrongs,
or acts is not admissible to prove a defendant’s character in order to show action in
conformity therewith.5 At the outset, we note that the principles governing Rule
404(b) evidence “are the same whether the conduct occurs before or after the
offense charged.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995)
(citation omitted) (emphasis added); United States v. Jernigan, 341 F.3d 1273,
5
The rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused the prosecution in a criminal case shall
provide reasonable notice in advance of trial, . . . of the general nature of any such
evidence it intends to introduce at trial.
Fed. R. Evid. 404(b).
14
1283-84 (11th Cir. 2003) (“[T]he standard for evaluating the admissibility of a
subsequent bad act under Rule 404(b) is identical to that for determining whether a
prior bad act should be admitted under this Rule.” (emphasis added)). Thus, that
the pertinent conduct occurred after the crimes charged against Lamb in this case
does not change our analysis. Delgado, 56 F.3d at 1365.
In evaluating the admissibility of 404(b) extrinsic evidence, this Court must
determine whether:
(1) the evidence is relevant to an issue other than defendant’s
character; (2) there is sufficient proof to enable a jury to find by a
preponderance of the evidence that the defendant committed the
extrinsic act; and (3) the evidence possesses probative value
outweighing any prejudicial effect.
United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir. 1994). Because Lamb
raises this claim of evidentiary error for the first time on appeal, however, “we
review it for plain error only.” United States v. Baker, 432 F.3d 1189, 1202 (11th
Cir. 2005) (citing Jernigan, 341 F.3d at 1280).
At Lamb’s trial for the 2000 offenses, the Government introduced evidence
that during his June 16, 2005 arrest, inside his apartment, police found 5.4 grams
of marijuana, 2.7 grams of powder cocaine, 0.36 grams of crack cocaine, and an
15
array of other paraphernalia indicative of drug distribution. Lamb argues that
because this evidence was seized approximately five years after the conduct for
which he was being tried, the evidence was irrelevant and unduly prejudicial. We
disagree.
Regarding the first prong of the test, the Government argues that Lamb’s
possession of narcotics and distribution-related paraphernalia in 2005 was relevant
to whether he had the intent to distribute the cocaine and marijuana found in his
residence in 2000. We agree. “A defendant who enters a not guilty plea makes
intent a material issue which imposes a substantial burden on the government to
prove intent, which it may prove by qualifying Rule 404(b) evidence absent
affirmative steps by the defendant to remove intent as an issue.” United States v.
Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998). “Where the extrinsic offense is
offered to prove intent, its relevance is determined by comparing the defendant’s
state of mind in perpetrating both the extrinsic and charged offenses.” United
States v. Dorsey, 819 F.2d 1055, 1059 (11th Cir. 1987). Where the state of mind
required for the charged and extrinsic offenses is the same, the first prong of the
Rule 404(b) test is satisfied. Id.; United States v. Dickerson, 248 F.3d 1036, 1047
(11th Cir. 2001); Delgado, 56 F.3d at 1365.
In this case, Lamb’s charged offenses include, inter alia, possession with
16
intent to distribute marijuana and possession with intent to distribute cocaine in
2000. By pleading not guilty, Lamb made his intent a material issue. See Zapata,
139 F.3d at 1358. Lamb’s subsequent extrinsic conduct included his possession of
marijuana, cocaine, and distribution-related paraphernalia in 2005, resulting in
additional charges that Lamb possessed with the intent to distribute marijuana and
cocaine. Thus, the charged conduct and the subsequent extrinsic conduct involved
the same mental state—intent to distribute marijuana and cocaine. Accordingly,
the first prong of the analysis is satisfied.
We also conclude that the second prong is satisfied. Here, the officer who
arrested Lamb in 2005 testified that after Lamb consented to a search of his
residence, he stated that marijuana and cocaine could be found on his night stand.
The officer also testified that upon searching the residence, he found marijuana,
cocaine, and distribution-related paraphernalia (e.g., plastic baggies, cutting agents,
razor blade, spoon) in the location Lamb described. Based on this testimony, a
jury could have found by a preponderance of the evidence that Lamb committed
the extrinsic conduct. See Clemons, 32 F.3d at1508.
Regarding the third prong of the test, “[w]hether the probative value of Rule
404(b) evidence outweighs its prejudicial effect depends upon the circumstances of
the extrinsic offense.” Dorsey, 819 F.2d at 1062. Factors to be considered include
17
whether it appeared at the commencement of trial that the defendant would contest
the issue of intent, the strength of the government’s case on the issue of intent, the
overall similarity of the charged and extrinsic offenses, and the temporal proximity
between the charged and extrinsic offenses. Id.
Here, Lamb’s defense rested primarily on his contention that he was merely
present at the scene and that he never actually possessed or distributed the
narcotics found in 2000. Accordingly, the Government had a strong need for the
extrinsic offense evidence to counter Lamb’s “mere presence” defense and prove
his intent. See Delgado, 56 F.3d 1365. Furthermore, the charged offenses were
nearly identical to extrinsic offenses, as both involved possession with the intent to
distribute cocaine and marijuana. Moreover, this court’s case law contradicts
Lamb’s assertion that the five-year span between the charged conduct and the 2005
conduct rendered the 2005 conduct too remote to be admitted into evidence. See,
e.g., United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (concluding
that a six-year span did not render the extrinsic acts too remote for proper
consideration); United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995)
(concluding that a fifteen-year span did not render the extrinsic acts too remote for
proper consideration); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.
1991) (concluding that a five-year span did not render the extrinsic conduct too
18
remote for proper consideration). Finally, any unfair prejudice possibly caused by
admitting the extrinsic act evidence was mitigated by the district court’s limiting
instruction to the jury. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225
(11th Cir. 1993). Thus, the probative value of extrinsic act evidence was not
substantially outweighed by its undue prejudice.
Because all parts of the Rule 404(b) test are satisfied, we conclude that
evidence of the drugs and paraphernalia found in Lamb’s apartment during his
2005 arrest was properly admitted to prove his intent in the charged offenses.
D. Sentence
Finally, Lamb argues that his sentence should be vacated because the district
court erred by sentencing him as a career offender, failing to adequately consider
record facts that would have supported a lower sentence, and imposing an
unreasonable sentence. We disagree.
Because Lamb raises these objections to his sentence for the first time on
appeal, we review them for plain error. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir.), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 866
(2005).
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), sentencing requires two steps. “First, the district court must consult
19
the Guidelines,” which, “at a minimum, obliges the district court to calculate
correctly the sentencing range prescribed by the Guidelines.” United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citations omitted). Second, the district
court must impose a sentence that is reasonable in light of the factors set forth in 18
U.S.C. § 3553(a). Id. These factors include: the nature and circumstances of the
offense, the history and characteristics of the defendant, the seriousness of the
offense, promoting respect for the law, providing just punishment for the offense,
affording adequate deterrence, the need to protect the public from further crimes of
the defendant, the Guidelines range; and the need to avoid unwarranted sentencing
disparities. 18 U.S.C. § 3553(a). “Although sentencing courts must be guided by
these factors, nothing in Booker or elsewhere requires the district court to state on
the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” United States v. Thomas, 446 F.3d 1348,
1357 (11th Cir. 2006) (citations omitted).
1. Details of Lamb’s Sentence
In the presentence investigation report (“PSI”), Lamb was classified as a
career offender with a criminal history category of VI and a total offense level of
37, resulting in Guidelines range of 360 months to life imprisonment,with an
additional, consecutive, minimum term of five years (60 months) for Count 4
20
(possession of a firearm in furtherance of a drug-trafficking offense). At a status
conference following Lamb’s conviction, the district court stated that based on
Lamb’s criminal history, it thought the Guidelines range was unreasonable. Noting
that the career offender classification was the result of felonies Lamb committed
when he was 17 and 18 years old, the district court stated “I think” a criminal
history category of III is more appropriate. The court went on to state “I think” an
offense category of 30 is more appropriate, and that this number was reached by
“disregarding” the career offender enhancement.
At the sentencing hearing, the Government argued that if the court wanted to
impose a sentence below the Guidelines range, it should do so by imposing a
downward departure based on the factors set forth in § 3553(a). Stating that the
Guidelines range had been correctly calculated in the PSI, the district court
continued to express reservations about the reasonableness of a 420-month
sentence (the Guidelines minimum). Lamb argued that although the Guidelines
range was “technically” correct, the court should use its discretion to disregard the
career offender enhancement. After expressly noting that it had considered the
§ 3553(a) factors, and after discussing how several of those factors applied to
Lamb’s case, the district court sentenced to Lamb to a total of 181 months
imprisonment, consisting of 120 months as to each of Counts 1 and 3 to be served
21
concurrently, 121 months as to each of Counts 2 and 5 to be served concurrently
with each other and concurrently with Counts 1 and 3, and 60 months as to Count 4
to be served consecutively to the terms imposed as to Counts 1, 2, 3, and 5.
2. Career Offender Enhancement
Lamb contends that during the status conference, the district court had
“announced with definiteness” that it would disregard the career offender
enhancement included in the PSI. He argues that in failing to disregard the
enhancement, the district court erred by receding from its previously-announced
position, failing to consider that Lamb’s prior felonies occurred while he was a
teenager, and failing to consider Lamb’s “lengthy period of lawful and gainful
employment” during the preceding five years. We disagree.
First, the transcript of the status conference reveals that the district court did
not announce with definiteness that it would disregard the career offender
enhancement. As discussed above, the district court stated “I think” a criminal
history category of III and an offense category of 30 (reached by disregarding the
enhancement) are more appropriate. In our view, this does not constitute a
definitive announcement that the court would disregard the enhancement.
We are also unpersuaded by Lamb’s contention that the district court erred
in failing to consider Lamb’s age when he committed the prior felonies and his
22
subsequent gainful employment. Again, after Booker, the district court must
correctly calculate the Guidelines range, and we review a defendant’s ultimate
sentence for reasonableness in light of the § 3553(a) factors. Talley, 431 F.3d 784,
786. But our reasonableness review does not apply to the application of individual
Guidelines, nor does it apply to “each individual decision made during the
sentencing process.” United States v. Winingear, 422 F.3d 1241, 1244-45 (11th
Cir. 2005). Here, Lamb does not argue that the career offender enhancement either
resulted from, or produced, an incorrect application of the Guidelines. And
because we do not review the reasonableness of an individual Guidelines
application, see id., Lamb’s arguments regarding the factors the district should
have considered in deciding whether to disregard the enhancement are addressed in
our discussion of whether Lamb’s ultimate sentence is reasonable. Accordingly,
we hold that the district court did not err in declining to disregard the career
offender enhancement.
3. Consideration of Lamb’s Rehabilitation
Lamb also argues that his sentence should be reversed because the district
court focused “solely” on the nature and circumstances of the offense, while giving
“no consideration at all” to his personal “history and characteristics” such as his
steady and gainful employment. We disagree.
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During the sentencing hearing, the district court specifically took note of
Lamb’s period of employment with the Humane Society. Indeed, the court read
excerpts from a letter written by Lamb’s supervisor describing Lamb as a well-
liked, courteous, caring, and hard-working employee. Noting the seriousness of
the charged offenses, however, the court went on to discuss the need for the
sentence to, inter alia, reflect the seriousness of the offenses, promote respect for
the law, provide just punishment, afford adequate deterrence, and protect the public
from future crimes by Lamb. Because “the weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court,”
we will not substitute our judgment in weighing the relevant factors. United States
v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006). Accordingly, we reject Lamb’s
argument.
4. Reasonableness of the Sentence
Finally, Lamb argues that the sentence was excessive “in total” and that the
individual sentences imposed on Counts 2, 3, 4, and 5 were unreasonable because
the district court made various “errors.” As a threshold matter, “[w]e do not apply
the reasonableness standard to each individual decision made during the sentencing
process; rather, we review the final sentence for reasonableness.” Winingear, 422
F.3d at 1245. “[W]e consider the final sentence, in its entirety, in light of the
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§ 3553(a) factors.” Thomas, 446 F.3d at 1350-51 (emphasis added); see e.g.,
United States v. Johnson, 451 F.3d 1239, 1241-42, 1244 (11th Cir.), cert. denied,
127 S.Ct. 462 (2006) (reviewing for reasonableness a 140-month final sentence;
not the reasonableness of the sentences imposed for each individual offense).
Accordingly, we review Lamb’s “final sentence” for reasonableness, and we
decline to evaluate each individual sentence imposed on Counts 2 through 5.
Here, the district court adhered to the requirements of Booker in imposing
Lamb’s sentence. First, the court expressly considered, and properly calculated,
Lamb’s advisory Guidelines range. Notably, Lamb does not challenge the court’s
calculation of the Guidelines range. Second, the court specifically stated that it had
considered the § 3553(a) factors. And although a sentencing court need not
explicitly discuss each of the § 3553(a) factors, Thomas, 446 F.3d at 1357, in this
case, the district court discussed several, including Lamb’s history and
characteristics (including his youth at the time of his prior offenses and his lawful
employment with the Humane Society), see 18 U.S.C. § 3553(a)(1), the need for
the sentence to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, see id. § 3553(a)(2)(A), afford adequate deterrence, see
id. § 3553(a)(2)(B), protect the public from future crimes by Lamb, see id.
§ 3553(a)(2)(C), and the need to avoid unwarranted sentencing disparity among
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similarly-situated defendants, see id. § 3553(a)(6). On this record, we cannot say
that Lamb’s 181-month final sentence was unreasonable under Booker.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
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