FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16721

Non-Argument Calendar

________________________

D. C. Docket No. 07-00047-CR-WS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANNY ANTONIO SELLERS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(September 23, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Danny Antonio Sellers appeals his 240-month sentence for
convictions of conspiracy to possess with intent to distribute more than 50 grams

of crack cocaine, in violation of 21 U.S.C. § 846, and possession with intent to

distribute less than 5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

On appeal, Sellers argues that the district court incorrectly calculated his

sentencing guideline range because it erroneously attributed to him at least 1.5

kilograms of cocaine base as relevant conduct. Sellers further argues that his

sentence is substantively unreasonable.

When reviewing a sentence imposed by a district court, we ordinarily must

first ensure that the district court correctly calculated the guideline range. United

States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We review a district

court’s interpretation of the Guidelines de novo, and “its factual findings for clear

error.” United States v. Vance, 494 F.3d 985, 994 (11th Cir. 2007). The quantity

of drugs attributable to a defendant under the Guidelines is a question of fact that

we review for clear error. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th

Cir. 2005).

After determining that the district court correctly calculated the guideline

range, we then review the sentence for reasonableness in light of the factors set

forth in 18 U.S.C. § 3553(a). United States v. Martin, 455 F.3d 1227, 1237 (11th

Cir. 2006). The reasonableness of a sentence is reviewed under a deferential

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abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1189 (11th

Cir. 2008) (citing Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597, 169

L. Ed. 2d 445 (2007)). Under the abuse-of-discretion standard, we will only

reverse if the district court made a clear error in judgment. Pugh at 1191. The

party challenging the sentence ultimately “bears the burden of establishing that the

sentence is unreasonable in light of both [the] record and the factors in section

3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

A sentence may be reviewed for procedural or substantive unreasonableness.

United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence is

procedurally unreasonable if the district court (1) improperly calculated the

guidelines range, (2) selected a sentence based on clearly erroneous facts, (3)

treated the Guidelines as mandatory, (4) failed to consider the § 3353(a) sentencing

factors, or (5) failed to adequately explain the reasons for the chosen sentence.

Gall, 552 U.S. at ___, 128 S. Ct. at 597; United States v. Williams, 526 F.3d 1312,

1322 (11th Cir. 2008). Where a district court has indicated that it would have

imposed the same sentence regardless of a particular guidelines calculation,

however, we may decline to decide a disputed guideline issue or remand the case

for new sentence proceedings where the guideline error, if any, did not affect the

ultimate sentence imposed. See United States v. Keene, 470 F.3d 1347, 1348–49

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(11th Cir. 2006). Under such circumstances, we will, if necessary, proceed to

examine whether the defendant’s sentence is reasonable in light of the guideline

range calculated without the procedural Guidelines error. Id. at 1349-50.

Substantive reasonableness is determined with reference to the factors listed

in 18 U.S.C. § 3553(a). Williams, 526 F.3d at 1322. The statutory factors include:

(1) the nature and circumstances of the offense; (2) the history and characteristics

of the accused; (3) the need to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense; (4) the need for

deterrence; (5) the need to protect the public; (6) the kinds of sentences available;

(7) the sentencing guidelines range; and (8) the need to avoid unwarranted

sentencing disparities among similarly situated defendants. 18 U.S.C. § 3553(a);

see also Williams, 526 F.3d at 1322. We have recognized that “there is a range of

reasonable sentences from which the district court may choose,” and the fact that

we might reasonably conclude that a different sentence is appropriate is not

sufficient to warrant reversal. Talley, 431 F.3d at 788; Williams, 526 F.3d at 1322.

Based on our review of the record, we conclude that Sellers has failed to

carry his burden of showing that the district court committed a clear error in

judgment or that his sentence is substantively unreasonable. Because the district

court indicated that it would have imposed the same sentence regardless of a

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particular guidelines calculation, any potential error was rendered harmless.

Accordingly, we decline to address the drug quantity issue. For the above-stated

reasons, we affirm Sellers’s sentence.

AFFIRMED.

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