United States v. Delion

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 27, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10689
Non-Argument Calendar
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D.C. Docket No. 2:09-cr-14044-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY BURNEY DELION, JR.
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Florida
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(September 27, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
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Terry Burney Delion, Jr. appeals his 117-month total sentence, consisting of
a 33-month term for bank robbery and a consecutive 84-month mandatory
minimum term for brandishing a firearm during a crime of violence. We affirm.
Delion pleaded guilty to bank robbery, in violation of 18 U.S.C. § 2113(a),
and brandishing a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court determined his
guideline range for the bank robbery offense as 33 to 41 months’ imprisonment.
The firearm offense carried a consecutive mandatory minimum sentence of 84
months’ imprisonment.
After determining that a reasonable sentence for bank robbery was 33
months’ imprisonment to run consecutively to the 84-month term imposed for
brandishing the firearm, the court rejected Delion’s request for a lower sentence:
“I hear many reasons, but to use a firearm and to point a firearm at someone is
reprehensible. That is the worst possible crime of violence. And for those reasons
the Court determined that a sentence within the guideline range was appropriate.”
The court also rejected Delion’s claims that the government manipulated the
system by charging him with separate offenses and that the sentence as imposed
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failed to reflect his actual conduct, which was the intent of the sentencing
guidelines. Delion now appeals the substantive reasonableness of his sentence.1
We review the reasonableness of a sentence under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). The sentencing court shall impose a sentence “sufficient,
but not greater than necessary” to comply with the purposes of sentencing set forth
in § 3553(a)(2), namely, 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 further criminal conduct by the defendant, and provide the
defendant with needed educational or vocational training or medical care. 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. 18 U.S.C. § 3553(a)(1), (3)-(7).
Delion argues only that his sentence is substantively unreasonable and thus has1
abandoned any argument as to procedural unreasonableness. United States v. Jernigan, 341 F.3d
1273, 1284 n.8 (11th Cir. 2003).
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“[W]hen the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both [the] record and the factors in section 3553(a).”
Id. “The review for substantive unreasonableness involves examining the totality
of the circumstances, including an inquiry into whether the statutory factors in
§ 3553(a) support the sentence in question.” United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009).
We conclude that the sentence imposed was substantively reasonable. As
the court explained, pointing a firearm at someone was reprehensible. The district
court had no obligation to reduce Delion’s sentence for bank robbery in order to
compensate for his mandatory minimum sentence for brandishing a firearm during
the robbery.
Additionally, the district court did not abuse its discretion by declining to
exercise its power over the alleged manipulation of an indictment; dual counts of
bank robbery and brandishing a firearm during a crime of violence are not
inappropriate manipulation of an indictment.
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Finally, Delion’s sentence was reasonably uniform and proportional, and his
argument that the Sentencing Guidelines are flawed is directed to the wrong
forum. Thus, the district court did not abuse its discretion and we affirm the
district court.
AFFIRMED.
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