                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-14955                ELEVENTH CIRCUIT
                                                             AUGUST 19, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket No. 09-20238-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

PATRICK ZAMORE,
a.k.a. Coach,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 19, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Patrick Zamore appeals his 57-month sentence imposed following his guilty
plea to conspiracy to distribute a mixture or substance containing 50 grams or more

of crack cocaine, as well as detectable amounts of powder cocaine and marijuana,

in violation of 21 U.S.C. § 846. On appeal, Zamore argues that his sentence was

unreasonable in light of the 18 U.S.C. § 3553(a) factors and the district court’s

failure to sentence him based on a “1-to-1” crack-to-powder cocaine ratio. After

review, we discern no error and affirm.

      We review the sentence imposed, whether inside or outside of the advisory

Guidelines range, for reasonableness, using an abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).

      When reviewing a sentence, we must first determine 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. The district court

need not state on the record that it explicitly considered each factor and need not

discuss each factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

Rather, “an acknowledgment by the district court that it has considered the

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



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Booker.” Id. Zamore does not argue that his sentence was procedurally

unreasonable; therefore, we deem any such challenge abandoned.1 See United

States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (issue not pursued on

appeal deemed abandoned).

       Substantively, the sentence must be sufficient, but not greater than

necessary, to reflect the purposes set forth in § 3553(a). 18 U.S.C. § 3553(a). The

factors in 18 U.S.C. § 3553(a) are:

       (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
       restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.

§ 3553(a)). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court,” and this Court “will not

substitute [its] judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (internal quotation marks omitted).


       1
              We treat Zamore’s claim that the district court erred by failing to vary downward
and impose a sentence based on a “1-to-1” crack-to-power ratio as a challenge to the substantive
reasonableness of his sentence and not the calculation of the applicable Guidelines range.

                                                3
We will remand for resentencing only “if we are left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008) (internal quotation marks omitted).

      Neither this court nor the Supreme Court has held that a district court abuses

its discretion by refusing to vary downward and impose a sentence for a crack

cocaine offense based on a “1-to-1” crack-to-power cocaine ratio. In Kimbrough v.

United States, the Court held that “it would not be an abuse of discretion for a

district court to conclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §

3553(a)’s purposes, even in a mine-run case.” 552 U.S. 85, 110, 128 S. Ct. 558,

575 (2007). And in Spears v. United States, the Supreme Court made clear that

district courts have the discretion to categorically vary from the crack-cocaine

Guidelines. __ U.S. __, __, 129 S. Ct. 840, 843-44 (2009) (“[D]istrict courts are

entitled to reject and vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those Guidelines.”). These cases stand for the

proposition that a district court does not abuse its discretion by varying downward

from the crack-cocaine Guidelines whether it does so only in particular cases or



                                           4
categorically. They do not, however, impose a general obligation to vary

downward from the crack-cocaine Guidelines such that a failure to do so is

necessarily an abuse of discretion.

      Looking to this particular case, the district court acknowledged Zamore’s

argument that a variance based a “1-to-1” crack-to-powder ratio was appropriate

and was necessary to avoid sentencing disparities. The district court also

acknowledged its authority to vary downward based on the crack/powder ratio, but

gave several reasons why it felt such a variance was not appropriate in this case.

The district court noted that Zamore played a more responsible role than others in

the conspiracy and that he had been involved with more drugs than were counted in

his Guidelines calculation. Both facts are relevant, at the least, to the

circumstances and seriousness of the offense, and are thus relevant to the § 3553(a)

factors. The district court weighed these factors against Zamore’s request for a

variance based on the crack/powder disparity and concluded that a 57-month

sentence was appropriate. Nothing in the record indicates that the district court

abused its considerable discretion in weighing these factors or that this sentence

lies outside the reasonable range of sentences based on the facts of this case. Thus,

we conclude that Zamore’s sentence is substantively reasonable. Accordingly, the

sentence is affirmed.



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AFFIRMED.




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