FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15093

Non-Argument Calendar

________________________

D. C. Docket No. 07-00520-CR-LSC-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRE THOMAS, JR.,

a.k.a. Andre Burgin,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(October 6, 2009)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Andre Thomas, Jr. appeals his 120-month sentence imposed after he pled
guilty to one count of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). Thomas’ advisory Sentencing Guidelines (“Guidelines”) range

was 51 to 63 months’ imprisonment, and the statutory maximum was 120 months’

imprisonment. On appeal, Thomas argues that the district court’s sentence of 120

months is unreasonable.

We review the final sentence imposed by the district court for

reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).

The reasonableness standard means review of sentences for abuse of discretion.

Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007).

The district court must impose a sentence that is both procedurally and

substantively reasonable. Id. 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. Id. Once we conclude that the district

court made no procedural errors, we then consider the substantive reasonableness

of the sentence imposed. Id. The Supreme Court has suggested that such review

entails determining whether the sentence is supported by the § 3553(a) factors. Id.

at __, 128 S. Ct. at 600. “[T]he party who challenges the sentence bears the burden

2
of establishing that the sentence is unreasonable in light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005).

Thomas argues that the district court did not adequately explain the extent to

which it relied on each § 3553(a) factor in arriving at a significant upward

deviation. Specifically, Thomas contends that the district court relied exclusively

1

on the first § 3553(a) factor – the history and characteristics of the defendant. See

18 U.S.C. § 3553(a). While the district court must provide some explanation for

the sentence, “nothing in [United States v. Booker, 543 U.S. 220, 125 S. Ct. 738

(2005)] or elsewhere requires the district court to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

“[A]cknowledgment by the district court that it [] considered [the defendant’s]

arguments and the sentencing factors of section 3553 ‘alone is sufficient in postBooker sentences . . . .’” United States v. Docampo, No. 08-10698, slip op. 2581,

The § 3553(a) factors include: (1) the nature and circumstances of the offense and 1

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

restitution to victims. See 18 U.S.C. § 3553(a). 

3
2590 (11th Cir. June 15, 2009) (quoting United States v. Scott, 426 F.3d 1324,

1330 (11th Cir. 2005)). However, “[w]here the judge imposes a sentence outside

the Guidelines, the judge will explain why he has done so.” Rita v. United States,

551 U.S. 338, 357, 127 S. Ct. 2456, 2468 (2007). As for variances from the

Guidelines range, “a major departure should be supported by a more significant

justification than a minor one.” Gall, 552 U.S. at __, 128 S. Ct. at 597.

The district court acknowledged the sentencing factors in 18 U.S.C. §

3553(a) and treated the Guidelines as advisory. The court concluded that the

statutory maximum was appropriate based on Thomas’ extensive criminal record,

the need to provide adequate deterrence and the need to protect the public. The

court stressed Thomas’ history of violence involving firearms. The defense stated

that it had no objections to Thomas’ pre-sentence investigation report. It also made

no objections to the district court’s findings of fact or sentence calculations.

The district court acknowledged that the advisory Guidelines range was 51

to 63 months. It recognized the defense’s argument that Thomas suffered from a

learning disability. The court ordered Thomas to participate in a GED program to

the extent he was capable and requested his participation in a drug treatment

program. The court stated: “My obligation is to sentence the defendant to a

sentence which is sufficient, but not more than necessary, to accomplish the

4
sentencing goals set forth in the statute.” We discern no abuse of discretion.

Accordingly, we affirm Thomas’ sentence.

AFFIRMED.

2

Thomas’ request for oral argument is denied. 2

5