                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________          FILED
                                                 U.S. COURT OF APPEALS
                              No. 09-16062         ELEVENTH CIRCUIT
                                                     AUGUST 12, 2010
                          Non-Argument Calendar
                                                        JOHN LEY
                        ________________________
                                                          CLERK

                     D. C. Docket No. 09-00030-CR-5-RS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MICHAEL REED,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 12, 2010)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Michael Reed appeals his 57-month sentence for conspiracy to
distribute, and possession with intent to distribute, a mixture or substance

containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846.

On appeal, Reed argues that the district court committed procedural error under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),

by failing to explain its sentence adequately and by misapprehending its own

authority to consider his community-support evidence under the statutory factors.

Reed also argues that his sentence is substantively unreasonable because he

presented ample mitigating evidence that, when considered with the statutory

factors, supported a lower sentence. Reed further argues that his sentence was

unreasonable because it resulted in an unwarranted sentencing disparity between

himself and his more culpable codefendant and that sentencing disparities also

existed between himself and similarly situated defendants nationwide. He claims

that the statistics demonstrate the district court engaged in reverse discrimination

by penalizing him more harshly because he was well-educated and had a successful

medical career. Reed finally argues that the district court’s refusal to consider his

community-support evidence rendered his sentence substantively unreasonable.

                                           I.

      We review the reasonableness of sentences imposed under the advisory

Sentencing Guidelines under an abuse-of-discretion standard. Gall v. United



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States, 552 U.S. 38, 56, 128 S. Ct. 586, 600, 169 L. Ed. 2d 445 (2007). We first

review a sentence for procedural reasonableness to ensure that the district court

committed no significant procedural error, such as 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 explain adequately the chosen sentence. Id. at 51, 128 S. Ct. at 597. In relevant

part, § 3553(a) provides that a sentencing court “shall consider: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant[.]”

18 U.S.C. § 3553(a)(1). The statute specifically provides that “[n]o limitation shall

be placed on the information concerning the background, character, and conduct of

a person . . . which [the sentencing court] may receive and consider for the purpose

of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also United States v.

Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (noting that, “after Booker, ‘courts

may still consider relevant facts concerning a defendant’s background, character,

and conduct’ when imposing a reasonable sentence.”) (quoting United States v.

Faust, 456 F.3d 1342, 1348 (11th Cir. 2006). The burden of establishing

unreasonableness lies with the party challenging the sentence. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In relevant part, 18 U.S.C. § 3553 requires the district court to “state in open



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court the reasons for its imposition of the particular sentence[.]” 18 U.S.C.

§ 3553(c). Accordingly, a sentencing judge “should set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007).

A sentencing judge is not required to state expressly on the record which, if any,

§ 3553(a) factors were considered in determining a sentence. United States v.

Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). Rather, “an acknowledgment

by the district court that it has considered the defendant’s arguments and the

[statutory] factors in section 3553(a) is sufficient under Booker.”

Talley, 431 F.3d at 786; see also Rita, 551 U.S. at 358, 127 S. Ct. at 2469 (holding

that a brief explanation of the sentencing decision was sufficient, in part, because

the record showed that the district court considered the defendant’s supporting

evidence).

      However, in order to preserve an issue for appeal, the defendant must “raise

that point in such clear and simple language that the trial court may not

misunderstand it.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006)

(internal quotation marks omitted); see United States v. Reyes-Vasquez, 905 F.2d

1497, 1500 (11th Cir. 1990) (“Plain talk by lawyers is necessary for clear



                                           4
understanding by judges.”). We review arguments raised for the first time on

appeal only for plain error. United States v. Spoerke, 568 F.3d 1236, 1244 (11th

Cir. 2009). “Plain error occurs where (1) there is an error; (2) that is plain or

obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial

and not harmless; and (4) that seriously affects the fairness, integrity or public

reputation of the judicial proceedings.” Id. at 1244-45 (quoting United States v.

Hall, 314 F.3d 565, 566 (11th Cir. 2002)). In plain-error review, the defendant

bears the burden to prove that his substantial rights were affected.

United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003).

      We review Reed’s challenge to the district court’s sentencing explanation

for plain error only. Because Reed did not object in the district court, we thus

conclude from the record that the district court satisfied the requirements of

§ 3553(c), and accordingly, committed no error, plain or otherwise, in its

explanation of Reed’s sentence.

      The district court abused its discretion to the extent that it declined to

consider Reed’s evidence of community support, based on a belief that such

evidence could not be considered under the statutory factors. However, the district

court’s misapprehension of its own authority to consider the community-support

evidence is not a “significant procedural error.” Gall, 552 U.S. at 51, 128 S. Ct. at



                                           5
597. Accordingly, Reed’s sentence is procedurally reasonable.

                                           II.

      If the district court’s sentence is procedurally sound, we next evaluate

whether the sentence imposed by the district court is substantively reasonable and

achieves the purposes of sentencing under 18 U.S.C. § 3553(a). Talley, 431 F.3d

at 788. While a sentence may be substantively unreasonable if the court ignores

relevant factors, it is not necessarily unreasonable because the sentence must be

examined based on the totality of the circumstances. United States v. Pugh, 515

F.3d 1179, 1192, 1192 (11th Cir. 2008). Further, the weight accorded to the

various factors is in the discretion of the district court, and we will not second

guess the exercise of that discretion as long as the sentence imposed is reasonable

under the totality of the circumstances. Id. at 1191. Thus, a defendant’s personal

disagreement with the district court’s assessment of one or more of the factors will

not be sufficient reason to vacate as unreasonable a district court’s careful

consideration of the § 3553(a) factors. See United States v. Valnor, 451 F.3d 744,

752 (11th Cir. 2006). Reasonableness review is deferential, and if a district court

imposes a sentence within the advisory guideline range, “we ordinarily will expect

that choice to be a reasonable one.” Talley, 431 F.3d at 788.

      District courts should not use § 3553(a)(6), which states that courts should



                                           6
consider the need to avoid unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar conduct, to adjust the

sentence of a codefendant. United States v. Chotas, 968 F.2d 1193, 1197-98

(11th Cir. 1992). Rather, § 3553(a)(6) applies in order to cure unwarranted

disparities between the defendant and all similar offenders in other cases.

Id. at 1198. Thus, disparity between sentences imposed on codefendants is

generally not an appropriate basis for relief on appeal. United States v. Regueiro,

240 F.3d 1321, 1325-26 (11th Cir. 2001).

      We conclude from the record that Reed’s 57-month sentence is substantively

reasonable under the totality of the circumstances. Reed’s 57-month sentence is

within the guideline range, is well below the statutory maximum of 40 years’

imprisonment, and achieves the purposes of sentencing under § 3553(a).

Accordingly, we affirm Reed’s sentence.

      AFFIRMED.




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