FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 24, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12594

Non-Argument Calendar

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D. C. Docket No. 05-00478-CR-T-30-MSS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DASHON COVERTA STARKS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 24, 2007)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:

Dashon Coverta Starks appeals his 360-month sentence imposed after he
The presentence investigation report (“PSI”) attributed 37.5 grams of cocaine base to Starks. 1

The district court sustained Starks’s objection to the PSI’s drug quantity and found Starks

responsible for 14.7 grams of cocaine base, consistent with the jury. However, the drug quantity

attributed to Stark did not affect his guidelines calculations because, as a career offender convicted

of an offense with a statutory maximum of life, Starks’s offense level was set at 37, pursuant to

U.S.S.G. § 4B1.1(b)(A).

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was found guilty by a jury of conspiring to possess, possessing and manufacturing

five grams or more of cocaine base, in violation of 21 U.S.C. §§ 846,

841(b)(1)(B)(iii) and 851, and 18 U.S.C. § 2. After review, we affirm.

I. BACKGROUND FACTS

A jury found Starks guilty on three counts of drug-related offenses. The jury

also found that Starks’s offenses involved 14.7 grams of cocaine base. 

At sentencing, the district court also attributed 14.7 grams of cocaine base to

Starks and used that drug quantity to calculate Starks’s offense level under the

Sentencing Guidelines pursuant to U.S.S.G. § 2D1.1(c)(7). The district court also 1

applied the guidelines career offender provision, pursuant to U.S.S.G. § 4B1.1,

because Starks had two prior felony convictions for controlled substance offenses. 

With a total offense level of 37 and a criminal history category of VI, Starks’s

advisory guidelines range was 360 months to life imprisonment. After resolving

several objections by Starks that are not relevant to this appeal, the district court

sentenced Starks to concurrent 360-month sentences on each count. This appeal

followed.
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II. DISCUSSION

Citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Starks

argues that his 360-month sentence is unreasonable because the Sentencing

Guidelines used to calculate his advisory guidelines range are “presumptively

unreasonable.” Starks, who is African American, bases his argument on what he

calls “concessions” made by the Sentencing Commission in a 2004 report entitled

Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal

Criminal Justice System is Achieving the Goals of Sentencing Reform. In the

2004 report, the Sentencing Commission examined, inter alia, disparities in

sentences among minority groups. Starks asserts that the Sentencing Commission

identified several guidelines provisions that had a disproportionate impact on

African American offenders, including the career offender provision of U.S.S.G. §

4B1.1 and the 100-to-1 crack to powder cocaine ratio in U.S.S.G. § 2D1.1. Starks

contends that the Sentencing Commission concluded that the harsher penalties

associated with the career offender and cocaine ratio guidelines provisions were

unjustified. The government does not dispute that these conclusions are contained

in the Sentencing Commission’s 2004 report, but contends that the report does not

make Starks’s sentence unreasonable.

Because Starks raises these arguments for the first time on appeal, we review
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only for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). Under plain error review, “[a]n appellate court may not correct an error the

defendant failed to raise in the district court unless there is: (1) error, (2) that is

plain, and (3) that affects substantial rights.” Id. “‘If all three conditions are met,

an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631,

122 S. Ct. 1781, 1785 (2002)).

Here, Starks fails to show error, let alone plain error. After Booker, the

district court first must correctly calculate a defendant’s advisory imprisonment

range under the Sentencing Guidelines before determining an appropriate sentence. 

United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006). In so doing, the

district court is not free to disregard provisions of the Sentencing Guidelines

because they have been the subject of criticism. Furthermore, once the advisory

guidelines range has been properly calculated, the district court may not vary from

that range based on a broad, categorical rejection of congressional sentencing

policy reflected in the Sentencing Guidelines. See id. at 1364-68 (reversing district

court’s variance from advisory guidelines based on criticisms of 100-to-1 crack-tococaine ratio). Rather, the district court’s variance from the advisory guidelines
On appeal, Starks does not argue that his sentence is unreasonable based on individualized, 2

case-specific factors in § 3553(a). Rather, Starks makes a sweeping challenge to these two

provisions of the Sentencing Guidelines as “presumptively unreasonable” based on the policy

concerns raised in the Sentencing Commissions 2004 report.

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range must “reflect[ ] the individualized, case-specific factors in [18 U.S.C.] §

3553(a).” Id. at 1369. Thus, Starks cannot show that his sentence is unreasonable 2

based solely on the generalized disparity concerns raised in the Sentencing

Commission’s 2004 report.

AFFIRMED.