FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APR 22, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-14077

Non-Argument Calendar

________________________

D. C. Docket No. 09-00122-CR-T-24-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWIN GEORGE COOPER,

a.k.a. Wayne Williams,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 22, 2010)

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

PER CURIAM:
Appellant Edwin George Cooper appeals his 30-month sentence imposed

after pleading guilty to one count of illegal reentry into the United States after

deportation for a felony, in violation of 8 U.S.C. § 1326(a) and (b). On appeal, he

argues that his upward-variant sentence is procedurally and substantively

unreasonable. He also argues, and the government concedes, that the judgment

improperly reflects that he was convicted of illegal reentry after deportation for an

aggravated felony.

I. Procedural Reasonableness

Cooper argues that his sentence was procedurally unreasonable because the

district court expressly refused to consider some potentially mitigating § 3553(a)

factors. He asserts the court placed sole weight on one factor: his previous illegal

reentry conviction. He argues that the guideline enhancement he received under

§ 2L1.2(b)(1)(D), for deportation subsequent to a felony conviction, accounted for

his previous illegal entries. He also argues that the court failed to provide an

adequate explanation for the upward variance. He further argues that our

precedent, in which we held that a district court need only acknowledge

consideration of the defendant’s arguments and the 3553(a) factors, conflicts with

other circuits.

2
We review the reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We

must “first 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.

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 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 future 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).

The sentencing court must also consider the following factors in determining a

particular sentence: the nature and circumstances of the offense and 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

3
restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7). The district court need

not discuss each factor; rather an acknowledgment “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). Not every

1

case requires a full opinion or a response to every argument. Rita v. United States,

551 U.S. 338, 356-57, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007). Rather,

“[t]he sentencing judge should set forth enough to satisfy the appellate court that

he has considered the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Id. at 356, 127 S. Ct. at 2468.

In determining a reasonable sentence, the district court may consider facts

that have already been taken into account in calculating the defendant’s guideline

range. See United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir. 2008) (as

part of history and characteristics of the defendant, district court could consider

defendant’s prior offenses in deciding to impose an upward variance, even though

those offenses were already included in the defendant’s criminal history score); see

also 18 U.S.C. § 3661 (“No limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). 1

4
offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence”).

The record belies Cooper’s contention that the court failed to adequately

consider the § 3553(a) factors and did not explain its rationale for the variance.

The court specifically noted its consideration of all the § 3553(a) factors.

Additionally, the court’s comments at sentencing, as well as the arguments that it

heard, demonstrate the court’s consideration of many pertinent § 3553(a) factors.

Although the court’s nine-month variance above the high end of Cooper’s

guideline range was significant, the district court’s consideration of many of the

§ 3553(a) factors and its statements that the sentence was sufficient, but not greater

than necessary, serve as sufficient justification. See Gall, 552 U.S. at 50, 128 S.Ct.

at 597 (holding that if a court “decides that an outside-Guidelines sentence is

warranted, [it] must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance”). The

record also demonstrates that the court considered the 3553(a) factors, “considered

the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita, 551 U.S. at 356, 127 S. Ct. at 2468; see also

Talley, 431 F.3d at 786 (holding that it is sufficient for a court to acknowledge its

consideration of the parties’ arguments and the 3553(a) factors). Regarding

5
Cooper’s argument that the court considered facts that were taken into account

when calculating his guideline range, we have held that a court may properly do so.

See Williams, 526 F.3d at 1324. Thus, we conclude from the record that Cooper’s

sentence is not procedurally unreasonable.

II. Substantive Reasonableness

Cooper also argues that his sentence was substantively unreasonable because

(1) the sentence was greater than necessary to achieve the purposes of sentencing;

and (2) the court engaged in “quintuple counting” in determining his sentence.

The reasonableness standard of review announced in Booker requires

appellate courts to review the ultimate sentence imposed under a “deferential

abuse-of-discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct. at 591. In

reviewing the ultimate sentence imposed by the district court for reasonableness,

we consider the sentence in light of the § 3553(a) factors. United States v. Thomas,

446 F.3d 1348, 1351 (11th Cir. 2006). The district court has discretion to

determine the weight that should be given to each factor. United States v. Clay,

483 F.3d 739, 743 (11th Cir. 2007). However, we may find that the district court

has abused its discretion if the weight it gives to the factors yields an unreasonable

sentence. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The

burden of establishing that the sentence is unreasonable in light of the record and

6
the § 3553(a) factors lies with the party challenging the sentence. Talley, 431 F.3d

at 788.

We conclude from the record that the district court considered the § 3553(a)

factors and sentenced Cooper to 30 months’ imprisonment, which was well within

his total statutory range of 0 to 10 years’ imprisonment. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (concluding that the sentence was

reasonable in part because it was well below the statutory maximum), cert. denied,

129 S.Ct. 2848 (2009). Although the district court imposed an upward variance,

the court provided a thorough rationale for which such a sentence was necessary

and found that the 60-month total sentence was “sufficient but not greater than

necessary to comply with the statutory purposes of the sentencing.” Given the

facts of this case, which includes the failure of a previous short sentence to deter

him, Cooper has not provided any compelling argument that the court abused its

discretion when weighing the sentencing factors. See Clay, 483 F.3d at 743

(district court has discretion to determine weight given to each factor). Thus, we

conclude that Cooper has failed to show that the court abused its discretion when

sentencing him.

III. Clerical Error in the Judgment

7
Cooper argues that the judgment improperly reflects that he was convicted

of illegal reentry after deportation for an aggravated felony, in violation of

8 U.S.C. § 1326(a) and (b)(2), when he was actually convicted of illegal reentry

after deportation for a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1).

“We may sua sponte raise the issue of clerical errors in the judgment and

remand with instructions that the district court correct the errors.” United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006).

While we affirm the district court’s 60-month sentence, the order of

judgment erroneously references 8 U.S.C. § 1326(b)(2), which criminalizes illegal

reentry after deportation for an aggravated felony and carries a 20-year statutory

maximum, rather than § 1326(b)(1), which carries a 10-year statutory maximum.

Thus, we vacate and remand for the limited purpose of correcting this clerical

error. See Massey, 443 F.3d at 822.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

8