FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 7, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-14034

Non-Argument Calendar

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D. C. Docket No. 04-00087-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CHARLES E. DANIELS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(March 7, 2006)

Before ANDERSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

Charles Daniels appeals his sentences of concurrent terms of 168 months’
 Although police also found marijuana with the crack cocaine and cocaine at the 1

residence where they arrested Daniels, he was not charged with possession of marijuana.

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imprisonment for possession with intent to distribute five grams or more of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and possession

with intent to distribute a detectable amount of cocaine, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(C). Because we find that the district court properly

considered the sentencing guidelines and the factors set forth in 18 U.S.C §

3553(a) in arriving at a reasonable sentence, we affirm.

I. Background

Daniels pleaded guilty to two counts of possession with intent to distribute

crack cocaine and cocaine. After his plea hearing, but prior to sentencing, the 1

district court issued an arrest warrant for Daniels for violation of the terms of his

pretrial release.

The probation officer prepared a presentence investigation report (“PSI”),

grouping the offenses together and assigning a base offense level of 26 given the

amount of crack cocaine, cocaine and marijuana involved. The PSI also reflected

the probation officer’s determination that Daniels was a career offender pursuant to

U.S.S.G. § 4B1.1, increasing his offense level to 34. The probation officer then

recommended a three-level reduction for acceptance of responsibility, resulting in

an adjusted offense level of 31.
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Noting Daniels’s prior offenses dating back to age 16, the probation officer

placed him in criminal history category VI.

At sentencing, Daniels made three objections: (1) he argued that, pursuant to

United States v. Booker, 543 U.S. 220 (2005), the district court need not consider

the sentencing guidelines and should instead base its sentence on the factors set

forth in 18 U.S.C § 3553(a); (2) he objected to a reference in the PSI to the

marijuana the police found upon his arrest, as he was not charged with marijuana

possession; and (3) he objected to being sentenced as a career offender, arguing

that, as a result, he would be given an unreasonable sentence, i.e., a sentence

greater than necessary to achieve the purposes set forth in § 3553(a). Finally,

Daniels requested leniency based on his efforts at post-offense rehabilitation, his

role as a low-level street dealer, and his remorse.

In light of the above factors, the district court departed downward to a

criminal history category of V. However, the court declined further downward

departures, noting that Daniels had tested positive for marijuana while out on bond

and had otherwise violated the terms of his release. The court concluded that, in

light of the absence of exceptional remorse or extraordinary rehabilitation efforts, a

sentence of 168 months’ imprisonment, which was at the low end of the guidelines

range, was sufficient but not greater than necessary to meet the sentencing goals of
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§ 3553(a).

II. Discussion

The government first argues that this court lacks jurisdiction to review

Daniels’s sentences pursuant to 18 U.S.C. § 3742(a) because the sentences were

not “imposed in violation of the law” or “as a result of an incorrect application of

the sentencing guidelines,” and each sentence is within the applicable guidelines

range. Id. As this court recently explained in United States v. Martinez, No. 05-

12706, slip op. (11th Cir. Jan. 9, 2006), however, “a post-Booker appeal based on

the “unreasonableness” of a sentence, whether within or outside the advisory

guidelines range, is an appeal asserting that the sentence was imposed in violation

of law pursuant to § 3742(a)(1).” Id. at 8-9. Accordingly, we have jurisdiction to

consider the reasonableness of Daniels’s sentences.

After Booker, we review a defendant’s sentence for reasonableness. United

States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005). First, the district court

must correctly calculate the applicable guidelines range. See United States v. Lee,

427 F.3d 881, 892 (11th Cir. 2005). Second, the court must consider the advisory

guidelines as well as the factors set forth in § 3553(a). See United States v.

Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). 

The court need not “conduct an accounting of every § 3553(a) factor . . . and
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expound upon how each factor played a role in its sentencing decision,” however.

United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005). “[O]rdinarily we

would expect a sentence within the Guidelines range to be reasonable;” Daniels

bears the burden of showing that his sentence was unreasonable. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Here, Daniels’s sentences were reasonable. First, Daniels was sentenced at

the low end of the guidelines range. Second, the court departed downward in the

criminal history category because it found that a criminal history category of VI

over-represented Daniels’s criminal history. Third, Daniels received a three-level

reduction for his acceptance of responsibility. Finally, the court considered

Daniels’s attempts at rehabilitation, although it concluded that Daniels’s inability

to abide by the terms of his supervised release demonstrated that his rehabilitation

efforts were not extraordinary. 

Because the district court both correctly calculated the applicable guidelines

range and considered the guidelines, the § 3553(a) factors, the circumstances of the

offense and Daniels’s arguments, we hold that the sentences imposed by the

district court were reasonable. Accordingly, we AFFIRM.