FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 15, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13168

Non-Argument Calendar

________________________

D. C. Docket No. 07-00482-CR-2-JHH-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY EUGENE COLEMAN, II,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(April 15, 2009)

Before CARNES, FAY and ANDERSON, Circuit Judges.

PER CURIAM:

Gregory Eugene Coleman appeals his 58-month sentence for possessing
firearms and ammunition as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Coleman was sentenced to 58 months despite having a Sentencing

Guidelines range of 37 to 46 months. Coleman argues that his sentence was

unreasonable because the district court failed to adequately consider his personal

history and circumstances and ignored the 18 U.S.C. § 3553(a) factors because his

sentence, which was to run consecutively to another case, was greater than

necessary.

When a sentence is imposed as a result of a § 3553(a) variance, we review it

for reasonableness. United States v. Valnor, 451 F.3d 744, 749-50 (11th Cir.

2006). The party challenging that sentence bears the burden of establishing that

the sentence is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). We review for reasonableness under a deferential abuse-of-discretion

standard, meaning that we “must first 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.” Gall v. United States, 552 U.S. ___, 128 S.

Ct. 586, 597 (2007); see also United States v. Livesay, 525 F.3d 1081, 1093 (11th

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Cir. 2008) (holding that the district court committed procedural error by failing to

provide an indication of what facts it relied on to make a significant variance from

the advisory Guidelines range).

If the district court made no procedural errors, we will next consider the

substantive reasonableness of the sentence imposed by inquiring whether the

sentence is supported by the § 3553(a) factors, taking into account the totality of

the circumstances, including the extent of any variance from the Guidelines range.

Gall, 552 U.S. at ___, 128 S. Ct at 597, 600; see also United States v. Pugh, 515

F.3d 1179, 1190 (11th Cir. 2008). In this review, we “must give due deference to

the district court's decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at ___, 128 S. Ct.

at 597). A sentence may be unreasonable when the district court failed to consider

the § 3553(a) factors, unjustifiably relied on any one § 3553(a) factor, selected the

sentence arbitrarily, or based the sentence on impermissible factors. Pugh, 515

F.3d at 1191-92. However, “while the application of these analyses may suggest

an unreasonable sentence, they do not necessarily make a sentence unreasonable,”

because reasonableness depends on the “totality of the circumstances.” Id. at 1192.

If the district court decides that a sentence outside of the Guidelines range is

warranted, it is required to state its reasons for such a variance to allow for

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meaningful appellate review. Gall, 552 U.S. at ___, 128 S. Ct. at 597; see also 18

U.S.C. § 3553(c) (stating that a district court “at the time of sentencing, shall state

in open court the reasons for its imposition of the particular sentence”). The

appropriateness of the brevity or length of the statement depends on the

circumstances of the case. Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456,

2468 (2007). While a district court need not state on the record that it has

explicitly considered each factor and need not discuss each factor, United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005), it should demonstrate that it

considered the parties’ arguments and has a reasoned basis for its decision. Rita,

551 U.S. at ___, 127 S. Ct. at 2468; United States v. Agbai, 497 F.3d 1226, 1230

(11th Cir. 2007).

The § 3553(a) 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

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restitution to victims. 18 U.S.C. § 3553(a). Moreover, under federal statute, a

district court normally has the discretion to order that a sentence imposed run

consecutively to any prior, unexpired sentence, provided that the court do so after a

consideration of the § 3553(a) factors. See 18 U.S.C. § 3584(a), (b). Lastly, when

considering whether a defendant's sentence is reasonable, we have considered the

fact that the sentence imposed falls considerably below the statutory maximum.

See, e.g., Valnor, 451 F.3d at 751-52.

Upon review of the record, and upon consideration of the briefs, we discern

no reversible error as to this issue. Here, Coleman has not demonstrated that his

58-month sentence is procedurally or substantively unreasonable. The district

court made no procedural error in calculating his offense level or criminal history.

The district court treated the Guidelines as advisory, gave both parties an

opportunity to object to the PSI, considered the factors in 18 U.S.C. § 3553(a), and

appropriately weighed those factors in sentencing Coleman to 58 months in prison.

Specifically, regardless of the fact that Coleman was still serving a sentence on

another criminal case, the district court did not abuse its discretion in determining

that a 58-month sentence to run consecutively to another sentence was necessary to

protect the public and to promote respect for the law, given Coleman’s history and

circumstances.

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The district court gave the upward variance from the advisory Guidelines

after properly considering the § 3553(a) factors. The district court noted that

Coleman’s criminal history was much more troubling than the Category V

Criminal History that he was assigned because Coleman had several arrests that did

not lead to convictions, and he had 11 convictions in four states over a 15-year

period. Furthermore, the district court noted Coleman had not spent significant

time in prison and needed to experience appropriate punishment for his level of

lawlessness. Additionally, Coleman’s 58-month sentence is significantly lower

than the statutory maximum of 120 months. See 18 U.S.C. § 924(a)(2) (providing

that the statutory maximum for Coleman’s offense is 10 years).

The district court did not commit any procedural errors, and Coleman did

not demonstrate that his sentence was substantively unreasonable. Accordingly,

we affirm.

AFFIRMED.

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