           Case: 12-12346   Date Filed: 02/28/2013   Page: 1 of 5




                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12346
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:07-cr-00239-RLV-GGB-1



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

TYWAN L. WILLIAMS,

                     Defendant - Appellant.

                       ________________________

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

                            (February 28, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
                Case: 12-12346       Date Filed: 02/28/2013      Page: 2 of 5

       Tywan Williams appeals his 210-month sentence, imposed at the low end of

the applicable guideline range, after a jury convicted him of one count of assault on

an officer, in violation of 18 U.S.C. § 111(a)(1), and one count of assault on an

officer with a deadly or dangerous weapon, in violation of 18 U.S.C. §§ 111(a)(1)

and (b). On appeal, Williams argues that his current sentence, imposed after we

vacated and remanded his earlier sentence for resentencing,1 is procedurally and

substantively unreasonable because the district court (1) engaged in a cursory

discussion of the factors listed in 18 U.S.C. § 3553(a), and (2) failed to consider or

address his post-offense rehabilitation. Finding no reversible error on the part of

the district court, we affirm.

       We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 600

(2007). The party challenging the sentence bears the burden of establishing that

the sentence is unreasonable in light of the record. United States v. De La Cruz

Suarez, 601 F.3d 1202, 1223 (11th Cir. 2010). First, we must determine whether

the district court committed any significant procedural error, including failing to

consider the § 3553(a) factors. United States v. Bradley, 644 F.3d 1213, 1303–04


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         The first sentencing court imposed a downward variance from the advisory guidelines
range of 168 to 210 months, sentencing Williams to 120 months. On appeal we affirmed
Williams’s conviction, but vacated and remanded for resentencing because the district court had
erroneously reduced the sentence for acceptance of responsibility and failed to enhance his
sentence for obstruction of justice. United States v. Williams, 627 F.3d 839, 844–46 (11th Cir.
2008).
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(11th Cir. 2011), cert denied, 132 S. Ct. 2375 (2012). Although the district court

must consider the § 3553(a) factors, it is not required to state on the record that it

has explicitly considered each of the factors or to discuss each one individually.

United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010).

      If we find that the sentence is procedurally reasonable, we must then

determine whether the sentence is substantively reasonable under the totality of the

circumstances, including whether the § 3553(a) factors actually support the

sentence at issue. United States v. Barrington, 648 F.3d 1178, 1203 (11th Cir.

2011), cert. denied, 132 S. Ct. 1066 (2012). Generally, we do not second-guess the

weight that the district court gave a certain factor. United States v. Snipes, 611

F.3d 855, 872 (11th Cir. 2010).

      We will only reverse a sentence as substantively unreasonable if we are left

with a definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors, such that the sentence at issue falls

outside of the range of reasonable sentences dictated by the facts of the case.

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). Although

there is not an explicit presumption, usually a sentence within the Sentencing

Guidelines range is expected to be reasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005) (per curiam). Moreover, a resentencing court “may

consider evidence of the defendant’s postsentencing rehabilitation and . . . such


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evidence may, in appropriate cases, support a downward variance from the now-

advisory Federal Sentencing Guidelines range.” Pepper v. United States, 131 S.

Ct. 1229, 1236 (2011). However, the resentencing court is not required “to apply

the same percentage departure from the Guidelines range . . . that [was] applied at

[the defendant’s] prior sentencing.” Id.

      Here, Williams’s argument that his sentence is procedurally unreasonable is

unfounded. The record clearly indicates that the district court reviewed and

considered the transcript of the initial sentencing hearing, our sentencing remand

opinion, the Presentence Investigation Report, and the sentencing memorandum

that Williams submitted; in light of all of this information, the district court

sentenced Williams at the low end of the guidelines range. The district court also

highlighted the severity of the charges, the fact that this was Williams’s eighteenth

criminal conviction, and that many of his previous crimes included felony

controlled substance offenses and felony crimes of violence. As such, the district

court’s consideration of the nature and circumstances of the offense, Williams’s

criminal history, the characteristics of his previous offenses, and the need to

protect the public are more than sufficient to render Williams’s sentence

procedurally reasonable.

      Moreover, Williams does not contest that the appropriate guidelines range is

210 to 262 months, but simply maintains that his sentence is substantively


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unreasonable because the district court did not vary his sentence downward to 120

months, as the previous sentencing court did. Although the initial sentencing judge

may have considered a downward variance appropriate, it is well-settled that

sentencing judges “exercise a wide discretion in the types of evidence they may

consider when imposing [a] sentence.” Pepper, 131 S. Ct. at 1235 (internal

quotation marks omitted). Here, Williams’s resentencing judge properly

considered the § 3553(a) factors. Based on the totality of the circumstances, the

facts of the case, and the range of imprisonment dictated by statute and by the

guidelines, we cannot say that the resentencing court committed “a clear error of

judgment in weighing the § 3553(a) factors,” such that the sentence at issue falls

“outside the range of reasonable sentences dictated by the facts of the case. Irey,

612 F. 3d at 1190. Although the district court was free to consider Williams’s

post-offense rehabilitation, it was in no way required to award a downward

variance in light of that evidence. See Pepper, 131 S. Ct. at 1236. Accordingly,

we affirm.

      AFFIRMED.




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