FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 18, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12899

Non-Argument Calendar

________________________

D. C. Docket No. 07-14075-CR-JEM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVE BROWN, 

a.k.a. Michael Frisby,

a.k.a. Daniel Brown,

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 18, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
2

Dave Brown appeals as unreasonable the district court’s imposition of his

96-month sentence following his guilty plea to illegal reentry into the United States

following deportation after conviction for an aggravated felony, in violation of 8

U.S.C. § 1326(a). 

Brown argues that the sentence imposed by the district court was

unreasonable because there were no aggravating circumstances surrounding the

instant charge, and he attempted to cooperate with the government in its

apprehension and prosecution of the man who smuggled him into the United

States. Brown maintains that the statement he gave to Immigration and Customs

Enforcement (ICE) led to the apprehension of the smuggler (a claim the

government disputes). He further states that he would have been available to

testify for the government if the smuggler had not pled guilty to the charges against

him, though he acknowledges that he was unsuccessful in reaching a cooperation

agreement with the prosecutor due to concerns about his criminal background. He

states that the district court should have given him credit for this offer of

assistance. 

In addition, he argues that the district court relied only on his criminal

history to set the sentence. He asserts that his criminal history had already

increased both his base offense level and his criminal history category, and it
3

further counted against him when the government would not give him any

cooperation credit because of his record. He believes the district court penalized

him for his criminal history a fourth time by relying on it in deciding to sentence

Brown at the top of the guidelines range. He also believes that a sentence at the

low end of the range would have been more than sufficient, but not greater, than

necessary to punish and deter him.

After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d

621 (2005), sentencing is a two-step process that requires the district court first to

“consult the Guidelines and correctly calculate the range provided by the

Guidelines,” then to consider the factors in 18 U.S.C. § 3553(a) and determine a

reasonable sentence. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). 

Those factors include: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just punishment for

the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the

need to provide the defendant with needed educational or vocational training or

medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines

range; (8) pertinent policy statements of the Sentencing Commission; (9) the need

to avoid unwanted sentencing disparities; and (10) the need to provide restitution
4

to the victims. Id., citing 18 U.S.C. § 3553(a). The sentence must be no greater

than necessary to punish, deter, protect the public, and provide the training and

care outlined in the statute. See 18 U.S.C. § 3553(a); Talley, 431 F.3d at 788. 

We then review the sentence for reasonableness in a two-step process. 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. Assuming that the district court’s sentencing

decision is procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard. When conducting this review, the

court will, of course, take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.

Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). 

Review of a sentence for reasonableness is deferential. Id. at ___, 128 S. Ct. at

598. We will reverse a sentence under this deferential abuse-of-discretion standard

only if “the district court has made a clear error of judgment.” United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quoting United States v. Frazier, 387

F.3d 1244, 1259 (11th Cir. 2004) (en banc)). Furthermore, although we do not

apply a presumption of reasonableness to a within-guidelines sentence, we
5

“ordinarily . . . would expect a sentence within the Guidelines range to be

reasonable.” Talley, 431 F.3d at 788. The appellant bears the burden of

establishing that the sentence is unreasonable. Id. at 788.

We have previously noted that unjustified reliance on a single factor,

reliance on impermissible factors, or failure to consider pertinent factors can be

“symptoms” of unreasonable sentences. Pugh, 515 F.3d at 1191-92. On the other

hand, the Supreme Court made clear in Gall that a district court does not abuse its

discretion when it merely attaches “great weight” to a single (permissible) factor or

set of factors. Gall, 552 U.S., 128 S. Ct. at 600-02.

Here, the record demonstrates that Brown has failed to establish that the

district court abused its discretion and imposed an unreasonable sentence. The

transcript of the sentencing hearing indicates that the district court’s deliberation is

of the type described in Gall. The court considered all of the information in the

PSI, including the convictions that contributed to Brown’s criminal history

category and the other elements of Brown’s criminal record that were not included

in the guidelines calculation. The court also took into consideration that Brown

had provided information and tried to cooperate with law enforcement authorities. 

The district court’s conclusion that Brown’s criminal background and “scofflaw

tendencies” merited a high sentence was reasonable and evidences no abuse of
6

discretion.

For the foregoing reasons, we affirm Brown’s sentence.

AFFIRMED.