USA v. Mark Green

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 21, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13712
Non-Argument Calendar
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D. C. Docket No. 08-00189-CR-TWT-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK GREEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 21, 2010)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:

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Mark Green was sentenced to 175 months imprisonment after pleading
guilty to one count of conspiracy to possess with intent to distribute at least 1,000
kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(A)(vii), and two counts of possession with intent to distribute at least 1,000
kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii),
and 18 U.S.C. § 2. He contends that his sentence, which was within the
Guidelines range, was procedurally and substantively unreasonable.
I.
“We review sentencing decisions only for abuse of discretion, and we use a
two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
First, we must “ ‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct.
586, 597 (2007)). If we find the sentence to be procedurally sound, the second
step is to review the “substantive reasonableness” of the sentence, taking into
account the totality of the circumstances, “including the extent of any variance
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from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. at 597. If the district
court’s sentence is within the guidelines range, we expect that the sentence is
reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)
(“After Booker, our ordinary expectation [of reasonableness] still has to be
measured against the record, and the party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both that
record and the factors in section 3553(a).”); see also United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically presume a
sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a
sentence within the Guidelines range to be reasonable.’” (quoting Talley, 431 F.3d
at 788)).
As for procedural error, Green does not contend that the district court
improperly calculated the sentencing guidelines or treated them as mandatory.
Instead, he argues that the district court improperly presumed that a sentence
within the Guidelines range was reasonable. See Nelson v. United States, 129
S.Ct. 890, 892 (2009) (“[A] sentencing court [may not] presume that a sentence
within the applicable Guidelines range is reasonable.”). We disagree. Before
imposing its sentence, the district court stated: “I think the guidelines result in a
guideline range that is fair and reasonable considering all the circumstances of the
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case, including Mr. Green’s relative culpability with his co-Defendants . . . .” It is
clear, based on that statement, that the district court did not presume that a
sentence within the guidelines range was reasonable but instead calculated
Green’s Guidelines range and then considered the § 3553(a) factors to determine
an appropriate sentence. See 18 U.S.C. § 3553(a)(1) (court must consider “the
nature and circumstances of the offense and the history and characteristics of the
defendant”); 3553(a)(6) (court must consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct”); see also Nelson, 129 S.Ct. at 891–92. Nor did the
district court base its sentencing decision on clearly erroneous facts or fail to
adequately explain its sentence. Accordingly, we conclude that no procedural
error occurred.
Green also challenges the substantive reasonableness of his sentence. He
argues that an unwarranted disparity exists between his 175 month sentence and
the sentences of his co-defendants. We disagree. Green had a more extensive
criminal history than his co-defendants and, unlike many of his co-defendants, did
not enter into a plea agreement with the government. He has not shown that the
difference between his sentence and the sentences of his co-defendants was
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unwarranted. See United States v. Williams, 526 F.3d 1312, 1323 (11th Cir.
2008).
AFFIRMED.
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