FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 November 2, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13241

Non-Argument Calendar

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D. C. Docket No. 05-00043-CR-4-SPM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JAMES D. GORDON, 

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(November 2, 2006)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

James D. Gordon appeals his sentence following his guilty plea to

conspiracy to distribute and possess with the intent to distribute more than 500
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grams of a mixture containing “MDMA” or “ecstasy,” in violation of 21 U.S.C.

§§ 841(b)(1)(B)(ii) and (C) and 846, and possessing a firearm and ammunition as a

convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Gordon was

sentenced as a career offender based on his prior convictions for aggravated battery

with a deadly weapon and carrying a concealed firearm. On appeal, Gordon argues

that the district court erred in classifying him as a career offender because the

sentence for his aggravated battery conviction was imposed more than 15 years

before commencement of the instant offense. He further argues that three criminal

history points should be deducted from his criminal history score because the

aggravated battery conviction should not have been counted. 

A district court’s decision to classify a defendant as a career offender under

U.S.S.G. § 4B1.1 is reviewed de novo. United States v. Gibson, 434 F.3d 1234,

1243 (11th Cir.), cert. denied, 126 S.Ct. 2911 (2006). Pursuant to § 4B1.1, a

defendant is a career offender when:

(1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the instant

offense of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two

prior felony convictions of either a crime of violence or a controlled

substance offense.

U.S.S.G. § 4B1.1(a). 
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Prior felony convictions under § 4B1.1 are counted using the definitions and

instructions for computing criminal history in § 4A1.2. U.S.S.G. § 4B1.2,

comment n.3; see United States v. Shannon, 449 F.3d 1146, 1148 (11th Cir. 2006). 

A prior conviction is “any sentence previously imposed upon adjudication of guilt .

. . for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1); see

Shannon, 449 F.3d at 1148. A prior conviction counts only if “imprisonment

exceeding one year and one month . . . was imposed within fifteen years of the

defendant’s commencement of the instant offense[.]” U.S.S.G. § 4A1.2(e)(1)

(emphasis added). In the context of a conspiracy, however, we count back from

the date last alleged as part of the conspiracy, unless the district court makes a

specific finding concerning when the co-conspirators reached an agreement. 

United States v. Cornog, 945 F.2d 1504, 1509-10 (11th Cir. 1991). A prior

conviction also counts when “any prior sentence of imprisonment exceeding one

year and one month, whenever imposed, . . . resulted in the defendant being

incarcerated during any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1);

see Shannon, 449 F.3d at 1148. 

“Sentences imposed upon revocation of probation can affect the time period

under which sentences are counted under section 4A1.2(e)(1).” Shannon, 449 F.3d

at 1148 (internal quotations omitted). “Thus, the court ordinarily should count a
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conviction that is imposed, and on which the defendant is paroled, outside the

window, when the defendant later-within the window- is incarcerated for breaching

the conditions of his parole.” Id. In Shannon, Shannon committed two prior

felony offenses outside the 15-year window, but violated his probation for each

offense, resulting in incarceration for each offense, within the 15-year period. Id. 

We held that the district court correctly applied the guidelines in sentencing

Shannon as a career offender because both of Shannon’s prior convictions resulted

in him being incarcerated within the 15-year window for prior offenses. Id.

Here, because the instant offense involved a conspiracy, the 15-year window

for prior offenses opened on the last date of the alleged conspiracy, which was

May 20, 2005. Although Gordon was convicted of the aggravated battery offense

in June 1989, outside the 15-year window for predicate career offender

convictions, Gordon’s probation was revoked, and he was incarcerated until

January 29, 1993, which was within the 15-year window. Therefore, pursuant to

U.S.S.G. § 4A1.2(e)(1), because Gordon was incarcerated within the 15-year

window for violating his probation with respect to his 1989 aggravated battery

conviction, that conviction counts as a prior violent felony for purposes of the

career offender provision. Gordon’s argument concerning the applicable criminal

history points is moot because, as discussed above, the district court correctly
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applied the career offender enhancement and properly included the aggravated

battery conviction in his criminal history score. Accordingly, the district court did

not err in sentencing Gordon as a career offender. 

Gordon also argues that the district court erred in imposing a guideline-range

sentence because the sentence does not reflect his true conduct. Gordon further

contends that the district court imposed the sentence under a mandatory guideline

scheme, in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005). 

We have held that “[i]n reviewing the ultimate sentence imposed by the

district court for reasonableness, we consider the final sentence, in its entirety, in

light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th

Cir. 2006) (brackets in original) (citation omitted). In determining a reasonable

sentence, the district court is to be guided by the § 3553(a) factors. Booker, 543

U.S. at 261, 125 S.Ct. at 765-66; United States v. Winingear, 422 F.3d 1241, 1246

(11th Cir. 2005). Section 3553(a) provides that district courts must consider, inter

alia, (1) the applicable guideline range; (2) the nature and circumstances of the

offense; (3) the history and characteristics of the defendant; (4) the need for the

sentence imposed to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense; (5) the need for adequate
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deterrence; (6) protection of the public; and (7) the need to avoid unwarranted

sentencing disparities. 18 U.S.C. § 3553(a)(1)-(7). 

Although the district court must be guided by these factors, we have held

that “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. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005). “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although a

sentence within the advisory guidelines range is not per se reasonable, we

ordinarily expect such a sentence to be reasonable. Id. at 787-88. We recently

held that “a district court may determine, on a case-by-case basis, the weight to

give the Guidelines, so long as that determination is made with reference to the

remaining section 3553(a) factors that the court must also consider in calculating

the defendant’s sentence.” United States v. Hunt, 459 F.3d 1180, 1185 (11th Cir.

2006). The burden of establishing that the sentence is unreasonable in light of the

record and the § 3553(a) factors lies with the party challenging the sentence. 

Talley, 431 F.3d at 788. 
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As a preliminary matter, Gordon’s contention that the district court

sentenced him under a mandatory guideline scheme is without merit. Gordon was

sentenced after Booker, and the court explicitly stated that the guidelines were only

advisory. 

 Further, Gordon failed to carry his burden of showing that his sentences

were unreasonable. Here, the record reveals that the district court adequately and

properly considered the § 3553(a) sentencing factors as well the advisory guideline

range in sentencing Gordon. First, as in Scott, the district court explicitly stated

that it had considered the § 3553(a) factors. Second, the court demonstrated its

explicit consideration of many of the sentencing factors, including (1) Gordon’s

history and characteristics, (2) the nature and circumstances of the offense, (3) the

need for the sentence imposed to reflect the seriousness of the offense, promote

respect for the law, and provide just punishment and adequate deterrence, and

(4) the policy statements issued by the Sentencing Commission. The court did not

need to state on the record its explicit consideration of every § 3553(a) factor, nor

did it need to address every argument for a variance. Third, Gordon’s assertion

that he has not maintained the life of a career criminal is without merit because his

criminal record is serious and spans many years. Finally, the court imposed 

sentences at the low end of the guideline range, and, for the reasons discussed
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above, nothing in the record suggests that the low-end sentences were

unreasonable. 

Upon review of the record on appeal and consideration of the parties’ briefs,

we discern no reversible error.

AFFIRMED.