FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 12, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10820

Non-Argument Calendar

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D. C. Docket No. 07-00180-CR-WKW

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

BOBBY LEE JOHNSON, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(September 12, 2008)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
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Bobby Lee Johnson appeals the 33-month sentence imposed after he pled

guilty to possessing a firearm after being convicted of a felony, in violation of 18

U.S.C. § 922(g). Johnson argues that his sentence was unreasonable, as the district

court cited erroneous facts, relied exclusively on Johnson’s criminal history, and

imposed a sentence that was greater than necessary. For the reasons set forth

below, we affirm. 

I.

Before Johnson’s sentencing hearing, a probation officer prepared a

presentence investigation report (“PSI”). The probation officer explained that a

city police officer, responding to a call that a black male was walking around a

local subsidized housing development with a rifle in his hand, saw Johnson

walking with a “short rifle” in his hand. When Johnson saw the police officer, he

walked between two nearby buildings and put the firearm into a trash can. After

the police officer apprehended Johnson, he found within the trash can a rifle with a

“sawed-off stock.” Johnson informed the police officer that he put the firearm in

the trash can because he did not want the police officer to shoot him and because

he previously had been convicted of a felony. 

Based on this offense conduct, the probation officer calculated a total

offense level of 12 and set Johnson’s criminal history category at V. Regarding
 These statements were made in connection with the district court’s rejection of 1

Johnson’s written plea agreement. Per the terms of this plea agreement, “[t]he government

agree[d] with [Johnson] to a sentence at the low end of the applicable Guidelines Range, as

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Johnson’s criminal history, the probation officer explained that Johnson had been

sentenced to five years’ imprisonment for breaking and entering a motor vehicle,

one year’s imprisonment for possession of a short-barreled shotgun, five years’

imprisonment for receiving stolen property, 30 days’ imprisonment for promoting

prison contraband, and 90 days’ imprisonment for indecent exposure, and had his

parole or probation revoked on three occasions in connection with these offense. 

With a total offense level of 12 and a criminal history category of V, Johnson’s

guideline imprisonment range was 27 to 33 months. Johnson’s offense carried a

statutory maximum of ten years’ imprisonment, pursuant to 18 U.S.C. § 924(a)(2). 

At Johnson’s sentencing hearing, Johnson argued that a sentence at the low

end of the guideline imprisonment range would suffice. Specifically, Johnson

argued that he did not deserve a higher sentence because there was no evidence

that he intended to use the firearm, the firearm was not stolen, and Johnson had not

obliterated the firearm’s serial number. The district court disagreed, stating, 

I’m looking at two probation–three probation revocations. I’m

looking at a guy walking through Trenholm Court, which is a place

where people who can’t afford to live anywhere else have to live, and

because of defendants like this they have to live in fear who, because

of people walking around with guns, babies are shot. I see a guy who

has put a good deal of prison time in.1
calculated by the Court.” The district court rejected the plea agreement “[b]ecause of the

agreement to bind the [district court] to sentence [Johnson] at the low end of the guideline

range,” and Johnson argued that a sentence at the low end was appropriate. During the actual

sentencing portion of his sentencing hearing, Johnson relied on this argument in mitigation. 

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The district court then acknowledged that it had considered the guideline

imprisonment range, Johnson’s arguments in mitigation, and the factors set out in

18 U.S.C. § 3553(a). Indeed, the district court listed these factors. The district

court sentenced Johnson to 33 months’ imprisonment, the high end of the range. 

The district court explained that it found this sentence sufficient, but not greater

than necessary, to comply with the statutory purposes of sentencing and other

considerations. Johnson objected that a 27-month sentence would have been

sufficient under § 3553(a)(2). 

II. 

As an initial matter, although Johnson, in his appellate brief, explains that

his attempt to plead guilty with the aid of a written plea agreement was rejected by

the district court and states in closing that the district court should not have

rejected his plea agreement, Johnson has abandoned any claim that the district

court’s rejection of the plea agreement was error. We have held that “a party

seeking to raise a claim or issue on appeal must plainly and prominently so

indicate” and must “devote[] a discrete section of his argument to [that] claim[],”

or else abandon the claim. United States v. Jernigan, 341 F.3d 1273, 1284 n.8
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(11th Cir. 2003). Johnson did not introduce the matter in his statement of issues or

elsewhere and did not provide any legal citation or argument on the matter, and

therefore abandoned the claim. See id. Moreover, as Johnson does not challenge

the voluntariness of his guilty plea or the district court’s guideline-imprisonmentrange calculations, it appears that correction of the district court’s alleged error

would not affect Johnson’s ultimate sentence. Accordingly, we will not address

this matter.

III.

After the Supreme Court’s decision in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must

correctly calculate the guideline imprisonment range and then must treat that range

as advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d

784, 786 (11th Cir. 2005). Specifically, the district court must impose a sentence

that is both procedurally and substantively reasonable. United States v. Hunt, 459

F.3d 1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, 552 U.S. __, 128 S.Ct.

586, 597, 169 L.Ed.2d 445 (2007). The Supreme Court has held that the

reasonableness of a sentence is reviewed under an abuse-of-discretion standard. 

Gall, 552 U.S. at __, 128 S.Ct. at 597. “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable.” United States
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v. Talley, 431 F.3d 784,788 (11th Cir. 2005). 

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

Supreme Court also has explained that review for substantive reasonableness

involves inquiring whether the statutory factors in § 3553(a) support the sentence

in question. Gall, 552 U.S. at __, 128 S.Ct. at 598-99. 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 and the

history and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1).

In considering the § 3553(a) factors and explaining the reasoning behind its
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choice of sentence, the district court need not discuss or state that it has explicitly

considered each factor of § 3553(a). Talley, 431 F.3d at 786. Rather, even a brief

explanation of its reasoning, coupled with a clear consideration of the parties’

arguments, will suffice. See Rita v. United States, 551 U.S. __, 127 S.Ct. 2456,

2469, 168 L.Ed.2d 203 (2007). 

IV.

The district court did not impose an unreasonable sentence. See Talley, 431

F.3d at 786. Although Johnson argues to the contrary, the district court did not

base its sentence on unproven facts, namely that Johnson put others in fear or

contributed to the death or injury of children. Rather, the district court explained

that it was not inclined to sentence Johnson at the low end of the guideline

imprisonment range because of the societal impact that behavior such as his had

and could have. Indeed, the district court specifically stated that “defendants” such

as Johnson had impacted society in these ways, and did not state that Johnson

himself had. Therefore, the district court’s sentence was not procedurally

unreasonable in the manner alleged. See Gall, 552 U.S. at __, 128 S.Ct. at 597. 

Also, although Johnson argues to the contrary, the district court did not fail

to consider the relevant § 3553(a) factors. Rather, the district court listed the

§ 3553(a) factors and acknowledged that it had considered them, along with the
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Sentencing Guidelines and Johnson’s arguments. While the district court was most

influenced by Johnson’s history and characteristics and the nature of his offense,

and the need to protect the public from the consequences of such offenses, it was

not an abuse of discretion to be especially influenced by these factors. See id.; 18

U.S.C. § 3553(a)(1), (2). Therefore, the district court’s sentence was not

substantively unreasonable in the manner alleged. See Gall, 552 U.S. at __, 128

S.Ct. at 598-99. Accordingly, we affirm.

AFFIRMED.