                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            NOV 17, 2008
                             No. 07-15833                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 07-14048-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SAMMIE LEE SCALES,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (November 17, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Sammie Lee Scales appeals his conviction for carrying a firearm during and

in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He also

appeals his sentences for possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g), and carrying a firearm during and in relation to a drug

trafficking crime, in violation of § 924(c). He asserts three issues on appeal, which

we address in turn. After review, we affirm Scales’ conviction and sentences.

                                          I.

      Scales asserts he should be able to withdraw his guilty plea to the § 924(c)

charge because it was not knowing and voluntary, and was therefore invalid under

the Due Process Clause and Rule 11 of the Federal Rules of Criminal Procedure.

He contends the court failed to inform him of the nature of the § 924(c) charge or

the elements of the crime, and he did not understand the elements of the offense.

Scales asserts he did not understand the Government would need to prove an

underlying drug trafficking crime to convict him of the § 924(c) charge for

possession of a firearm in furtherance of a felony. Further, he contends he would

have reasonable grounds to challenge that underlying drug trafficking charge

because the entire quantity of drugs was small and the weight was not established

by laboratory testing.




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      Because Scales objects to the plea proceedings for the first time on appeal,

he “has the burden to satisfy the plain-error rule.” United States v. Vonn, 122 S.

Ct. 1043, 1046 (2002). Under the plain-error standard of review, “[t]here must be

an ‘error’ that is ‘plain’ and that affect[s] substantial rights.” United States v.

Olano, 113 S. Ct. 1770, 1776 (1993) (citations omitted).

      The Due Process Clause requires a defendant knowingly and voluntarily

waive the constitutional rights attendant to a criminal prosecution. McCarthy v.

United States, 89 S. Ct. 1166, 1171 (1969). Rule 11 provides the district court

must address the defendant personally in open court and inform the defendant of,

and determine that he understands, a list of 14 specific items, including the

defendant’s trial rights, the consequences of a guilty plea, and the nature of the

charges. Fed. R. Crim. P. 11(b)(1). In addition, the court must ensure that a plea is

voluntary. Fed. R. Crim. P. 11(b)(2). Although a court does not necessarily

commit error if it omits some items under Rule 11, “[a] court accepting a guilty

plea must comply with Rule 11 and specifically address three ‘core principles,’

ensuring that a defendant (1) enters his guilty plea free from coercion,

(2) understands the nature of the charges, and (3) understands the consequences of

his plea.” United States v. Moriarty, 429 F.3d 1012, 1019-20 (11th Cir. 2005).




                                            3
      At issue here is the second core concern underlying Rule 11, namely,

whether Scales understood the nature of the § 924(c) charge. Rule 11(c) does not

specify that a district court must list each element of the offense. United States v.

Wiggins, 131 F.3d 1440, 1442-43 (11th Cir. 1997). “Indeed, there is no one

mechanical way or precise juncture that a district court is required to inform the

defendant of the nature of the charges in the Rule 11 colloquy.” Id. at 1443.

Rather, the court must “review the particular charge and colloquy and determine

whether the core objective of Rule 11(c) was satisfied.” Id. at 1444. The

complexity of the charge and the sophistication of the defendant are two major

factors in this analysis. See, e.g., United States v. Telemaque, 244 F.3d 1247,

1249-50 (11th Cir. 2001).

      In Telemaque, the defendant pled guilty to possessing cocaine with intent to

distribute and conspiracy to do the same. Id. at 1248. After confirming the

defendant had “seen the indictment or . . . had the indictment read to [him] so that

[he understood] exactly . . . what the Government . . . would have to prove,” the

district court found the defendant understood the nature of the charges. Id. at 1249.

The court never referenced the elements of the charges, did not ask whether the

defendant’s counsel had explained the charges, and did not inquire as to the

defendant's education and background. Id. We held the district court plainly erred



                                           4
by finding the plea was knowing because the defendant had immigrated from Haiti

when he was 16, had graduated at the bottom of his class and had no “prior

involvement in the court system, either, that would make his quick comprehension

more probable.” Id. at 1249-50.

      According to Vonn, 122 S. Ct. 1054-55, we must look to the entire record,

not just to the Rule 11 hearing, to determine whether a Rule 11 error occurred and

what effect it had. In addition, “a defendant who seeks reversal of his conviction

after a guilty plea, on the ground that the district court committed plain error under

Rule 11, must show a reasonable probability that, but for the error, he would not

have entered the plea.” United States v. Dominguez Benitez, 124 S. Ct. 2333,

2340 (2004).

      The record contains information from which the district court could find

Scales understood the nature of the § 924(c) charge. During the plea colloquy, the

court confirmed Scales had attended the twelfth grade, had not been treated

recently for mental illness, and was not under the influence of any drugs or alcohol.

The court also confirmed Scales had discussed the indictment and plea agreement

with his attorney and he understood the terms of the plea agreement. At this

hearing, the Government stated it was prepared to prove Scales was arrested while

in possession of 30 or more crack cocaine rocks and 39 bags of marijuana, and he



                                           5
had admitted in a post-Miranda statement to selling narcotics and possessing the

firearm. Scales confirmed the accuracy of this information.

      In light of Scales’ level of education, his extensive prior involvement with

the court system, and his assurances he had discussed the charges and plea

agreement with his attorney and he understood the agreement, the district court did

not plainly err by finding Scales understood the nature of the charge of knowingly

using, carrying or possessing a firearm in furtherance of a drug trafficking crime.

18 U.S.C. § 924(c). Even if the court’s failure to specifically list the elements of

the charge did constitute error, Scales has not shown, or even argued, that he would

not have pled guilty if the court had listed the elements of the § 924(c) charge. See

Dominguez Benitez, 124 S. Ct. at 2340. Thus, the district court did not plainly err

by finding that Scales understood the nature of the § 924(c) charge.

                                          II.

      Scales also asserts the district court violated 18 U.S.C. § 3553(c)(1) by

imposing a high-end sentence without explaining why the high end was needed in

addition to the career offender enhancement. He acknowledges the district court’s

discussion of his prior criminal history, but argues that, when compared to other

career offenders, his history is not so egregious as to warrant a high-end sentence,




                                           6
particularly because it consists mainly of lesser crimes such as petit theft, reckless

driving, fleeing or eluding, and traffic violations.

      We review de novo whether a district court’s statement of reasons was

deficient under § 3553(c)(1), even where, as here, the defendant did not object

below. United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006). When the

Guidelines range exceeds 24 months, the district court must state in open court the

reasons for imposing a sentence at a particular point within that range. 18 U.S.C.

§ 3553(c)(1). The district court makes an adequate statement under § 3553(c)(1)

by tailoring its comments to show the sentence was consistent with the sentencing

factors of § 3553(a). United States v. Parrado, 911 F.2d 1567, 1572 (11th Cir.

1990). No specific language is required when stating the reasons for a sentence, as

a district court simply must demonstrate that it was “mindful” of the appropriate

factors when imposing the sentence. Id. at 1572-73.

      The district court cited specific reasons for Scales’ 327-month sentence,

which was at the high end of the applicable Guidelines range of 262 to 327 months.

Before imposing its sentence, the court noted that Scales had an eight-year long

criminal record and a “significant criminal history.” The court specifically listed

Scales’ previous criminal charges, which included multiple sales of cocaine,

possession with intent to deliver cocaine, petit theft, burglary of a dwelling while



                                            7
armed, home invasion robbery, aggravated battery, and numerous driving

violations. The court stated, “I take those offenses into consideration and I’m

noting the statutory factors set forth in 3553[,] taking into consideration the nature

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

defendant.” Id. Thus, the court’s analysis confirms that it had a reasoned basis for

Scales’ high-end sentence, and therefore constitutes an explanation that complies

with § 3553(c)(1). See Parrado, 911 F.2d at 1572.

                                          III.

      Scales further contends his sentence was unreasonable, because the district

court did not consider the sentencing factors set forth in 18 U.S.C. § 3553(a). He

insists the district court relied disproportionately on his criminal history, which

was not egregious as compared to other career offenders, and did not give

appropriate consideration to his efforts to cooperate with the government.

      In United States v. Booker, 125 S. Ct. 738, 765-66 (2005), the Supreme

Court held that sentences are to be reviewed for “unreasonable[ness].” The

Supreme Court in Gall v. United States, 128 S. Ct. 586, 591 (2007), clarified the

reasonableness standard of review announced in Booker requires that appellate

courts review the ultimate sentence imposed under a “deferential abuse-of-

discretion standard.” A sentence is procedurally unreasonable if the district court



                                           8
failed to calculate or incorrectly calculated the Guidelines, treated the Guidelines

as mandatory, failed to consider the § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed to adequately explain the chosen sentence. Id. at

597.

       Section 3553(a) provides district courts must consider, inter alia, (1) the

applicable Guideline range; (2) the nature and circumstances of the offense; (3) the

history and characteristics of the defendant; (4) the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense; (5) the need for adequate deterrence to

criminal conduct; (6) protection of the public from further crimes of the defendant;

and (7) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.

§ 3553(a)(1)-(6). However, “[t]he weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court, and we

will not substitute our judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007), cert. denied, 128 S. Ct. 671 (2007)

(quotations and alterations omitted).

       “[A]n acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient under

Booker.” United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The burden



                                           9
of establishing the sentence is unreasonable in light of the record and the § 3553(a)

factors lies with the party challenging the sentence. Id. at 788. Although a

sentence within the advisory Guidelines range is not per se reasonable, we

ordinarily expect such a sentence to be reasonable. Id.

      Scales’ argument the district court failed to properly consider the § 3553(a)

factors is a challenge to a sentence’s procedural reasonableness. See Gall, 128 S.

Ct. at 597. This argument fails, as the record reflects the district court’s adequate

consideration of the § 3553(a) factors. The court specifically discussed Scales’ age

and his extensive criminal history over the past eight years at the sentencing

hearing. Before imposing its sentence, the court stated, “I take those offenses into

consideration and I’m noting the statutory factors set forth in 3553[,] taking into

consideration the nature and circumstances of the offense and the history and

characteristics of the defendant.” The court also noted it had considered the

parties’ statements in determining a sentence. Therefore, the record reflects the

district court’s adequate consideration of the § 3553(a) factors. See Talley, 431

F.3d at 786.

      Although Scales did not dispute his classification as a career offender, he

argues he should not have been given a sentence at the high end of the career

offender range. Arguing for a lower sentence, Scales noted at sentencing “the



                                          10
[Guidelines] range in this case is very harsh,” and he contends the court gave

“undue weight” to his criminal history while ignoring his attempt to cooperate with

the Government. Scales does not give examples of his “attempts to cooperate with

the Government,” and the record does not reflect any, but he insists that “his efforts

were at least worth consideration for a low-end guidelines sentence.” However,

the district court’s focus on Scales’ criminal history was not an abuse of discretion,

as “[t]he weight to be accorded any given § 3553(a) factor is a matter committed to

the sound discretion of the district court.” Amedeo, 487 F.3d at 832.

      Thus, we reject Scales’ argument that his sentence was unreasonable. The

record reflects the district court’s adequate consideration of the § 3553(a)

sentencing factors, and the court’s focus on Scales’ criminal history was not an

abuse of discretion.

      AFFIRMED.




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