FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12731

Non-Argument Calendar

________________________

D. C. Docket No. 07-20027-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

VIBERT ANTHONY LOWES, 

a.k.a. Vebert Anthony Lowes, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 20, 2008)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:
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Vibert Anthony Lowes appeals his 15-month sentence for one count of false

use of a passport, in violation of 18 U.S.C. § 1543, and one count of impersonating

a U.S. citizen, in violation of 18 U.S.C. § 911. Lowes argues that his sentence was

greater than necessary to comply with the purposes of sentencing set forth in 18

U.S.C. § 3553(a). He contends that, based on the pattern and timing of his prior

convictions for shoplifting and marijuana possession, which occurred between five

and ten years before the instant offense, a criminal history category of IV grossly

overstated the seriousness of his criminal history and warranted a downward

departure under U.S.S.G. § 4A1.3. For the reasons set forth more fully below, we

affirm Lowes’s sentence.

On December 18, 2006, Lowes, a citizen of Guyana, entered the United

States at Miami International Airport. Lowes presented U.S. Customs and Border

Patrol officials with a U.S. passport and declared that he was a U.S. citizen. It was

later discovered that the passport Lowes had presented belonged to another person

and had been altered from its original state to include his picture and biographical

information. Lowes subsequently admitted that he was a citizen of Guyana and

further admitted that the passport he presented was altered and did not belong to

him. A federal grand jury subsequently indicted Lowes for one count of false use

of a passport, in violation of 18 U.S.C. § 1543, and one count of impersonating a
 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 1

3

U.S. citizen, in violation of 18 U.S.C. § 911. Lowes pled guilty to the charges in

the indictment without the benefit of a written plea agreement. The district court

ultimately sentenced Lowes to concurrent terms of 15 months’ imprisonment and 2

years’ supervised release as to each count.

As an initial matter, as to Lowes’s argument that the facts and circumstances

surrounding his previous convictions warranted a downward departure pursuant to

U.S.S.G. § 4A1.3, we have held that “[a] district court’s refusal to depart

downward from the sentencing guideline range is not reviewable on appeal, unless

the district court denied the departure because it erroneously believed that it had no

authority to depart downward.” United States v. Liss, 265 F.3d 1220, 1231 (11th

Cir. 2001). Here, there is no indication that the district court erroneously believed

that it lacked the authority to depart downward. Accordingly, we decline to

address this issue.

We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). 

Unreasonableness may be procedural, when the court’s procedure does not follow

Booker’s requirements, or substantive. See Gall v. United States, 552 U.S. ___,

1

128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt, 459 F.3d 1180,
4

1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may

be procedurally unreasonable if the district court improperly calculates the

guideline imprisonment range, treats the Guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597. 

The Court also has explained that the substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Id. It has suggested that review

for substantive reasonableness under this standard involves inquiring whether the

factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128

S.Ct. at 600. 

Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to comply with the purposes of

sentencing listed in § 3553(a)(2), namely reflecting the seriousness of the offense,

promoting respect for the law, providing just punishment for the offense, deterring

criminal conduct, protecting the public from future criminal conduct by the

defendant, and providing the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). The statute also instructs the

sentencing court to consider certain factors, including the nature and circumstances

of the offense, the history and characteristics of the defendant, the guideline
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imprisonment range, and the need to avoid unwarranted sentencing disparities. 

See 18 U.S.C. § 3553(a)(1), (4), and (6).

The Supreme Court has held that, in reviewing sentences for reasonableness

under 18 U.S.C. § 3553(a), a federal appellate court may apply a presumption of

reasonableness to a district court sentence imposed within the guideline range. 

Rita v. United States, 551 U.S. ___, ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203

(2007). We, however, have held that a sentence within the guidelines range is

neither per se reasonable, nor entitled to a presumption of reasonableness. See

Hunt, 459 F.3d at 1185. 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. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

With regard to the procedural reasonableness of Lowes’s sentence, the

district court did not err in its sentencing procedure. The record indicates that

Lowes did not dispute either the factual findings or the probation officer’s

calculations, as stated in the PSI. Moreover, Lowes did not explicitly move for a

downward departure pursuant to U.S.S.G. § 4A1.3. Accordingly, the record

reflects that the district court properly calculated the advisory guideline range as 15

to 21 months’ imprisonment, based on an offense level of 10 and a criminal history
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category of IV. The record further demonstrates that the district court expressly

stated that it considered the sentencing factors set forth in § 3553(a), along with the

parties’ arguments, and sufficiently explained its reasons for imposing the

sentence. 

Lowes also has not established that his sentence is substantively

unreasonable. See Gall, 552 U.S. at ___, 128 S.Ct. at 597; Hunt, 459 F.3d at 1182

n.3. Lowes’s sentence of 15 months’ imprisonment is at the low-end of the

advisory guideline range. Moreover, the record indicates that the district court

considered Lowes’s criminal history and the need to promote respect for the law in

determining that a Guidelines sentence was appropriate. Therefore, the district

court did not abuse its discretion because the § 3553(a) factors supported the

district court’s sentence, which was not greater than necessary to achieve the goals

of sentencing set forth in § 3553(a)(2). See Gall, 552 U.S. at ___, 128 S.Ct. at 597,

601-02.

In light of the foregoing, Lowes’s sentence is 

AFFIRMED.