USA v. Kenneth Gregory Thompson

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 15, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14852
Non-Argument Calendar
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D.C. Docket No. 5:09-cr-00076-CAR-CWH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellee,
versus
KENNETH GREGORY THOMPSON,
llllllllllllllllllllllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 15, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Kenneth Gregory Thompson pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e), and was sentenced to

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188 months’ imprisonment and 5 years’ supervised release. Thompson appeals
from his sentence and argues that it was procedurally and substantively
unreasonable. Because we conclude that Thompson’s sentence was both
procedurally and substantively reasonable, we affirm.
We review a sentence for procedural and substantive reasonableness under
an abuse of discretion standard. United States v. Wetherald, 636 F.3d 1315, 1320
(11th Cir. 2011). We first look to whether the district court committed any
significant procedural error. United States v. Pugh, 515 F.3d 1179, 1190 (11th
Cir. 2008). We then examine the substantive reasonableness of the sentence. Id.
Thompson argues that his sentence is procedurally unreasonable because the
district court failed to ask him and his counsel whether they had read and
discussed the presentence investigation report (PSI). But because Thompson did
not object to the district court’s failure to directly ask whether he and his counsel
had read and discussed the PSI, we review this issue for plain error. United States
v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). To prevail, Thompson must
establish (1) that there was error; (2) that it was plain; and (3) that it affected his
substantial rights. Id.
At sentencing, the district court is required to “verify that the defendant and
the defendant’s attorney have read and discussed the presentence report and any
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addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A). Although the district court
did not explicitly ask Thompson or his counsel whether they had read and
discussed the PSI, Thompson’s counsel discussed her objections to the PSI with
the district judge and Thompson wrote the judge a letter in which he referred to
the PSI. Under our caselaw interpreting an earlier version of Rule 32, that
probably would have been enough to satisfy compliance with the rule. See United
States v. Aleman, 832 F.2d 142, 144 (11th Cir. 1987). Since Aleman was decided,
however, Rule 32 has changed. But we need not decide whether the district court
complied with the new rule because Thompson has failed to demonstrate any
prejudice from the alleged error.
Thompson claims that he was prejudiced because unobjected-to statements
in the PSI are admissions for sentencing purposes. But, tellingly, Thompson did
object to statements in the PSI, and his objections were considered by the district
court. He has not identified any other objections he would have made, much less
how those unmade objections would have affected his sentence, had the district
court asked him whether he and his counsel had read and discussed the PSI.
Accordingly, we conclude that Thompson failed to establish prejudice.
Thompson next argues that the district court committed procedural error by
not adequately explaining its sentencing rationale. 18 U.S.C. § 3553(c); see also
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Gall v. United States, 552 U.S. 38, 51 (2007). The Supreme Court has said that
when the judge decides to apply the guidelines in a particular case, a lengthy
explanation is not always required. Rita v. United States, 551 U.S. 338, 356
(2007). The Court went on to say that “Circumstances may well make clear that
the judge rests his decision upon the Commission’s own reasoning that the
Guidelines sentence is a proper sentence . . . .” Id. at 357. This is such a case.
Here the district court considered the guidelines and imposed a sentence at the
bottom end of the range. The judge said he thought that the sentence was
appropriate and that it complied with the factors set forth in 18 U.S.C. § 3553(a).
Under our caselaw this explanation was sufficient.
Next Thompson argues that it is unclear whether the district court
considered the § 3553(a) factors before imposing sentence. But the district court’s
statement that the sentence “complied with the factors that are to be considered as
set forth in 18 U.S.C. § 3553(a),” shows that it did. It is also clear that the district
court treated the guidelines as advisory. Throughout the sentencing hearing the
district court referred to the sentencing guidelines as “advisory” and specifically
mentioned that it was not “bound to apply the sentencing guidelines.”
Accordingly, we conclude that Thompson’s sentence is procedurally reasonable.
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We now turn to Thompson’s arguments about the substantive
reasonableness of his sentence. Whether a sentence is substantively reasonable is
essentially a question whether the district court abused its discretion. Pugh, 515
F.3d at 1179. Although we do not presume that a sentence, like this one, that is
within the properly calculated guidelines range is reasonable, we ordinarily expect
that is the case. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). But
even if a sentence is within the guidelines, it must also, considering the totality of
the circumstances, achieve the purposes of 18 U.S.C. § 3553(a). Gall v. United1
States, 552 U.S. 38, 51 (2007); Pugh, 515 F.3d at 1191. The party challenging a
sentence bears the burden of establishing its unreasonableness. Pugh, 515 F.3d at
1189.
Thompson contends that his sentence is substantively unreasonable because
it fails to account for the circumstances of the offense, his employment history,
The purposes of § 3553(a) are:1
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant; (2) the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant
with educational or vocational training or medical care; (6) the kinds of sentences
available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of
the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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and the possibility that he will not receive credit for time served in state custody
before his case was federalized. Thompson’s argument boils down to a contention
that the judge did not adequately consider the § 3553(a) factors. Pugh, 515 F.3d at
1191–92 (noting that a sentence can be substantively unreasonable if the district
court fails to consider the “pertinent 3553(a) factors”). When Thompson
presented his mitigating evidence, the judge considered his arguments, but
rejected them because he felt Thompson’s conduct sounded like “something out of
a Western” and noted that Thompson could have made a different decision. Even
though the district judge did not explicitly mention Thompson’s employment
history, he did say that the sentence complied with the § 3553(a) factors, which
necessarily include Thompson’s “history and characteristics.” See United States v.
Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (“[A]lthough the district court’s
sentencing order made no mention of evidence that arguably mitigated in
Amedeo’s favor under § 3553(a), we cannot say that the court’s failure to discuss
this ‘mitigating’ evidence means that the court erroneously ‘ignored’ or failed to
consider this evidence in determining Amedeo’s sentence.”). Thus we conclude
that the district court adequately considered the relevant § 3553(a) factors.
As for Thompson’s remaining argument, the district court explained that it
would not vary downward based on Thompson’s time in state custody because it
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believed that only the Bureau of Prisons had the authority to calculate credit for
time served, and it would be inappropriate for the court to vary downward to
ensure Thompson received such credit. The district court also thought it seemed
likely that Thompson would be credited for the time he spent in state custody. See
Rita v. United States, 551 U.S. at 357. We conclude that the district court was
within its discretion when it refused to vary downward to ensure Thompson would
receive credit for time served. Accordingly, we also conclude that Thompson’s
sentence is substantively reasonable.
AFFIRMED.
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