                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          APRIL 21, 2010
                            No. 09-13712
                                                            JOHN LEY
                        Non-Argument Calendar                CLERK
                      ________________________

                 D. C. Docket No. 08-00189-CR-TWT-1-1

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

MARK GREEN,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                            (April 21, 2010)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Mark Green was sentenced to 175 months imprisonment after pleading

guilty to one count of conspiracy to possess with intent to distribute at least 1,000

kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A)(vii), and two counts of possession with intent to distribute at least 1,000

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii),

and 18 U.S.C. § 2. He contends that his sentence, which was within the

Guidelines range, was procedurally and substantively unreasonable.

                                          I.

      “We review sentencing decisions only for abuse of discretion, and we use a

two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).

First, we must “ ‘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.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct.

586, 597 (2007)). If we find the sentence to be procedurally sound, the second

step is to review the “substantive reasonableness” of the sentence, taking into

account the totality of the circumstances, “including the extent of any variance

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from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. at 597. If the district

court’s sentence is within the guidelines range, we expect that the sentence is

reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)

(“After Booker, our ordinary expectation [of reasonableness] still has to be

measured against the record, and the party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both that

record and the factors in section 3553(a).”); see also United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically presume a

sentence within the guidelines range is reasonable, we ‘ordinarily . . . expect a

sentence within the Guidelines range to be reasonable.’” (quoting Talley, 431 F.3d

at 788)).

      As for procedural error, Green does not contend that the district court

improperly calculated the sentencing guidelines or treated them as mandatory.

Instead, he argues that the district court improperly presumed that a sentence

within the Guidelines range was reasonable. See Nelson v. United States, 129

S.Ct. 890, 892 (2009) (“[A] sentencing court [may not] presume that a sentence

within the applicable Guidelines range is reasonable.”). We disagree. Before

imposing its sentence, the district court stated: “I think the guidelines result in a

guideline range that is fair and reasonable considering all the circumstances of the

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case, including Mr. Green’s relative culpability with his co-Defendants . . . .” It is

clear, based on that statement, that the district court did not presume that a

sentence within the guidelines range was reasonable but instead calculated

Green’s Guidelines range and then considered the § 3553(a) factors to determine

an appropriate sentence. See 18 U.S.C. § 3553(a)(1) (court must consider “the

nature and circumstances of the offense and the history and characteristics of the

defendant”); 3553(a)(6) (court must consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct”); see also Nelson, 129 S.Ct. at 891–92. Nor did the

district court base its sentencing decision on clearly erroneous facts or fail to

adequately explain its sentence. Accordingly, we conclude that no procedural

error occurred.

      Green also challenges the substantive reasonableness of his sentence. He

argues that an unwarranted disparity exists between his 175 month sentence and

the sentences of his co-defendants. We disagree. Green had a more extensive

criminal history than his co-defendants and, unlike many of his co-defendants, did

not enter into a plea agreement with the government. He has not shown that the

difference between his sentence and the sentences of his co-defendants was




                                           4
unwarranted. See United States v. Williams, 526 F.3d 1312, 1323 (11th Cir.

2008).

      AFFIRMED.




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