FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 23, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16188

Non-Argument Calendar

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D. C. Docket No. 09-20571-CR-JLK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEREK LUSTER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 23, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

Derek Luster appeals from his 63-month sentence, imposed following his
conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Luster argues that his sentence is procedurally

unreasonable within the meaning of United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005) and 18 U.S.C. § 3553(c)(1), because the district

court did not adequately explain the basis for his sentence. Luster further argues

that his sentence is procedurally unreasonable because the court treated his

guideline range as mandatory, or as presumptively reasonable. In support of his

contention that the court treated his guideline range as mandatory, Luster points

out that the court twice used term “downward departure.” He asserts that the

court’s use of this term demonstrated its belief that, consistent with a mandatory

guideline scheme, it could impose a sentence outside of his guideline range only if

a departure were warranted.

Luster also argues that the court committed the additional procedural error of

basing his sentence, at least in part, on a clearly erroneous factual

determination—namely, that the deduction of six criminal-history points from his

criminal-history score would not lower his criminal-history category or reduce his

guideline range. Finally, Luster argues that his sentence is substantively

unreasonable. He asserts, however, that we need not consider the substantive

reasonableness of his sentence at this time, because a remand is warranted so that

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the district court may correct the procedural deficiencies in his sentence.

For the reasons discussed below, we vacate and remand in part, and affirm in

part.

I.

A federal grand jury indicted Luster for one count of possessing a firearm as

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Luster pled guilty to the

offense.

In preparing the presentence investigation report (“PSI”), the probation

officer found that Luster had a total offense level of 19, and 15 criminal-history

points, which corresponds to criminal history category VI. Accordingly, the PSI

reported that Luster’s guideline range was 63 to 78 months’ imprisonment.

At sentencing, the court stated that Luster’s “advisory” guideline range was

63 to 78 months’ imprisonment. The court next asked Luster if he had filed a

motion for a variance. Luster argued that the court should vary downward from his

guideline range, partly because 6 of his criminal-history points were attributable to

felonies that he committed when he was 17 years old. The court asked Luster

whether deducting these six criminal-history points would change his criminalhistory category or reduce his guideline range, and Luster averred that, even if

these points were deducted, his criminal-history category and guideline range

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would remain the same. The court then stated to Luster, “you’re saying that . . . I

should depart downward under a variance, under 3553?” In response, Luster

confirmed that he sought a downward variance, arguing that his criminal-history

category over-represented the seriousness of his criminal history. The government

generally responded that, due to the extent of Luster’s criminal history, a

downward variance was not warranted. Apart from confirming with Luster that he

sought a variance, and asking whether the deduction of six points from Luster’s

criminal-history score would affect the guideline range, the court did not make any

comments during this discussion.

Next, Luster and the government discussed the circumstances surrounding

Luster’s arrest in the present case, and Luster pointed out that, upon being stopped

by a police officer, he had admitted to the officer, without being asked to do so,

that he was carrying a gun. The court did not ask the parties any questions about

the circumstances surrounding Luster’s present offense, and did not make any

statements during this discussion. The government, the U.S. Probation officer, and

the court next discussed that, even if Luster’s number of criminal-history points

was reduced by six points, he still would have a criminal-history category of VI.

In this regard, the court stated, “It doesn’t affect anything. [Luster] told us that.”

The court imposed a sentence of 63 months’ imprisonment, stating, “The

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[c]ourt imposes a sentence of the—at the minimum, at the low end of the guideline

range, which is 63 months’ incarceration. The motion for a downward departure

under Rule 3553 is denied.” The court did not provide any explanation as to why it

selected a sentence of 63 months’ imprisonment. Although the court probably did,

it did not expressly state that it had considered the parties’ arguments in

determining Luster’s sentence, nor that it had considered the factors set forth in 18

U.S.C. § 3553(a).

II.

After Booker, the Guidelines are advisory in nature, and “a sentence may be

reviewed for procedural or substantive unreasonableness.” United States v. Hunt,

459 F.3d 1180, 1181-82 & n.3 (11th Cir. 2006). The reasonableness of a sentence

is reviewed under an abuse-of-discretion standard. United States v. Pugh, 515 F.3d

1179, 1189-90 (11th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The question of whether a district court

complied with 18 U.S.C. § 3553(c)(1) is reviewed de novo, even if the defendant

did not object below. United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir.

2006).

A sentence is procedurally unreasonable if the district court failed to

calculate or incorrectly calculated the Guidelines, treated the Guidelines as

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mandatory, failed to consider the factors set forth in 18 U.S.C. § 3553(a), selected

a sentence based on clearly erroneous facts, or failed to explain adequately the

chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. In addition, a district

court may not presume that a defendant’s guideline range is reasonable. Nelson v.

United States, 555 U.S. ___, 129 S.Ct. 890, 892, 172 L.Ed.2d 719 (2009).

Section 3553(a) provides that district courts imposing a sentence must

consider, inter alia:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence

imposed—(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct; (C) to protect

the public from further crimes of the defendant; (D) to provide the

defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner;

and (3) the kinds of sentences available.

18 U.S.C. § 3553(a)(1)-(3). Section 3553(c) provides, in relevant part, that “[t]he

court, at the time of sentencing, shall state in open court the reasons for its

imposition of the particular sentence” and, if the sentence falls within a guideline

range that exceeds 24 months, the court should provide its reasons for imposing a

sentence at a particular point within the defendant’s guideline range. 18 U.S.C.

§ 3553(c)(1).

A district court “must adequately explain the chosen sentence to allow for

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meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 552 U.S. at 597, 128 S.Ct. at 50. Specifically, § 3553(c) requires that, “[t]he

sentencing judge . . . set forth [sufficient reasoning] to satisfy the appellate court

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

exercising his own legal decisionmaking authority.” Rita v. United States, 551

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

Procedural reasonableness does not require that a court recite or discuss each

of the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005) (addressing whether a defendant’s sentence was procedurally reasonable

under Booker); see also Bonilla, 463 F.3d at 1182 (addressing whether the court

adequately articulated the basis for the defendant’s sentence, as required by 18

U.S.C. § 3553(c)(1)). Rather, it is sufficient if a court merely states that, in

selecting the defendant’s sentence, it has considered the parties’ arguments and the

§ 3553(a) factors. Scott, 426 F.3d at 1329-30. On the other hand, a district court

need not expressly mention § 3553(a) where its reasoning, or its consideration of

the parties’ objections, demonstrates that it considered the § 3553(a) factors. See

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). Where a court fails

to provide any explanation for its sentence, we will vacate and remand so that the

court may articulate the reasons that it selected a particular sentence. See United

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States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006).

In determining whether a district court imposed a variance under 18 U.S.C.

§ 3553(a), as opposed to a departure, we will consider, among other things,

whether the district court referred to a specific guideline departure provision. See

United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009), cert. denied,

130 S.Ct. 1315 (2010).

“The doctrine of invited error is implicated when a party induces or invites

the district court into making an error.” United States v. Love, 449 F.3d 1154,

1157 (11th Cir. 2006). “Where invited error exists, it precludes a court from

invoking the plain error rule and reversing.” Id.

We will not review the substantive reasonableness of a defendant’s sentence

where a remand is necessary to cure procedural errors in the sentencing process.

United States v. Barner, 572 F.3d 1239, 1253 (11th Cir. 2009); see also Gall, 552

U.S. at 51, 127 S.Ct. at 597.

Here, the record, as a whole, does not reveal the basis for the court’s 63-

month sentence. Before imposing sentence, the court did not mention the

§ 3553(a) factors, did not state that it had considered the parties’ arguments, and

did not provide an explanation for selecting a sentence of 63 months’

imprisonment. See Scott, 426 F.3d at 1329; Rita, 551 U.S. at 356, 127 S.Ct. at

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2468.

While, in some cases, the record may demonstrate that the court considered

the § 3553(a) factors by virtue of its discussion with the parties, the record here is

insufficient to make this showing. While the court and the parties discussed

Luster’s criminal history, this discussion primarily focused on the narrow question

of whether the deduction of six criminal-history points from Luster’s criminalhistory score would have affected his guideline range. Moreover, while this

discussion demonstrated that the court found that a downward variance was not

warranted, the court did not indicate whether Luster’s criminal history was a basis,

or the primary basis, for its decision to impose a 63-month sentence. Furthermore,

although Luster and the government discussed the circumstances surrounding

Luster’s offense, the court did not participate in this discussion, or articulate any

finding based on this discussion. See Dorman, 488 F.3d at 944. Thus, the record

does not demonstrate clearly whether the court selected Luster’s sentence based, in

part, on the nature and circumstances of his offense.

For the reasons set forth above, neither the court’s statements, nor the

exchanges between the parties and the court, sufficiently demonstrate the court’s

basis for imposing a 63-month sentence. As a result, Luster’s sentence is

procedurally unreasonable, and we vacate and remand so that the court may

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articulate the basis for Luster’s sentence. See Williams, 438 F.3d at 1274. Because

we vacate and remand on this procedural ground, we do not address the substantive

reasonableness of Luster’s sentence. See Barner, 572 F.3d at 1253.

We note, however, that Luster’s additional procedural arguments lack merit.

The record reveals no indication that the district court treated Luster’s guideline

range as mandatory, or as presumptively reasonable. The court expressly stated

that Luster’s guideline range was advisory. While the court twice used the term

“downward departure,” the court did not refer to a specific guideline departure

provision. See Kapordelis, 569 F.3d at 1316. In fact, the court inquired whether

Luster was requesting a variance “under 3553,” and Luster confirmed that he was

seeking a downward variance. Accordingly, it is clear that the court treated

Luster’s arguments as a request for a variance, which shows that it necessarily

recognized that Luster’s guideline range was advisory.

Moreover, to the extent that the court made a clear factual error by finding

that the deduction of six points from Luster’s criminal-history score would not

affect his guideline range, this error was invited by Luster, as he expressly told the

court that such a deduction would not lower his criminal-history category or reduce

his guideline range. See Love, 449 F.3d at 1157. As a result, Luster may not

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challenge this error on appeal. Accordingly, we affirm as to the additional

procedural arguments that Luster raises on appeal.

VACATED AND REMANDED IN PART, AFFIRMED IN PART.

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