                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  JUNE 6, 2007
                                 No. 06-15868
                                                                THOMAS K. KAHN
                             Non-Argument Calendar
                                                                    CLERK
                           ________________________

                   D.C. Docket No. 04-00071-CR-ORL-19-KRS

UNITED STATES OF AMERICA



                                                                  Plaintiff-Appellee,
                                       versus

MADAIRES BOYD,

                                                               Defendant-Appellant.

                           ________________________

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

                                   (June 6, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       Madaires Boyd appeals his ninety-two month sentence for possessing with

intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). First, he
challenges the district court’s denial of his motion for a downward departure based

on asserted over-representation of criminal history. Second, he argues that the

district court erred by declining to find unconstitutional the sentencing disparity

between cocaine base (“crack cocaine”) and powder cocaine. Third, he claims that

his sentence is unreasonable. We conclude that we lack jurisdiction to review the

district court’s denial of a downward departure, that the district court did not

plainly err in declining to find unconstitutional the sentencing disparity, and that

Boyd’s sentence is reasonable.

                                 I. BACKGROUND

      Boyd was arrested after a confidential source bought from him $450.00

worth of crack cocaine weighing 7.2 grams. He pled guilty to possessing with

intent to distribute five or more grams of crack cocaine, without a written plea

agreement.

      The district court originally sentenced Boyd before United States v. Booker,

543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d. 621 (2005), was decided. It followed

the United States Sentencing Guidelines’ mandatory scheme and sentenced Boyd

to ninety-five months’ imprisonment with forty-eight months’ supervised release.

Boyd later moved to vacate his sentence pursuant to 28 U.S.C. § 2255, claiming

ineffective assistance of counsel. The district court granted Boyd’s motion,

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vacated the sentence, and then reimposed the sentence to allow Boyd to file a

timely notice of appeal. Boyd timely appealed, and the government conceded a

Booker error in the initial sentencing. We vacated Boyd’s reimposed sentence and

remanded in full for re-sentencing.

      Boyd’s pre-sentencing investigation report (“PSR”) set the base offense

level at twenty-six since the offense involved more than five grams but fewer than

twenty grams of cocaine base. U.S.S.G. § 2D1.1(c)(7). The PSR subtracted three

offense levels for acceptance of responsibility. §§ 3E1.1(a), (b). The adjusted

offense level was twenty-three, with a category VI criminal history. A probation

officer determined that the applicable guideline range was 92 to 115 months’

imprisonment. The officer also noted the statutory range of five to forty years’

imprisonment. 21 U.S.C. § 841(b)(1)(B).

      Boyd initially argued during his re-sentencing that the government should

be required to prove that he possessed and distributed crack, not powder, cocaine.

The court replied that Boyd had already admitted in his plea to possessing and

selling crack. It further warned him that the credit awarded for accepting

responsibility would be compromised if he put the government to its burden of

proof. Boyd then withdrew the objection.

      Boyd also sought a downward departure, claiming that the PSR over-

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represented his criminal history. He specifically claimed that his sexual battery

conviction as a juvenile should really have been considered a form of statutory

rape. Boyd asked for the statutory minimum of five years’ imprisonment. He also

asked the court to give the same weight to his asserted over-represented criminal

history and to the advisory guidelines range when considering the § 3553(a)

factors.

      The district court denied Boyd’s motion for a downward departure. It then

individually assessed each of the §3553(a) factors and sentenced him to ninety-

two months’ imprisonment. The court imposed a sentence at the lower end of the

guideline range because she did not “want this sentence to be viewed as a penalty

for what [Boyd] did, which was to challenge and bring up the ineffective

assistance of counsel[.]” The judge also recommended that Boyd receive job

training, treatment for drug use and anger management, and the opportunity to

finish his GED.

      Boyd then asked the court to clarify whether it considered the advisory

guidelines as “a presumptive sentence.” The court replied, “They are not

presumptive . . . . But I do think the Guidelines give guidance, and I do look at

them in sentencing. But I also go through these and try to figure out ways that

they might not apply, which I’ve done” here. Boyd then timely appealed his new

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sentence.

                                       II. DISCUSSION

           A. Downward Departure for Over-represented Criminal History

       Boyd claims that the PSR over-represents his criminal history and that the

district court erred by denying his motion for a downward departure. He

specifically contends that his sexual battery conviction was really a form of

statutory rape. But the district court accepted the PSR’s conclusion that Boyd

committed sexual battery at age fourteen. Boyd thus argues that the district court

did not consider all the available information before imposing the new sentence.

       We have jurisdiction to review a district court’s refusal to grant a downward

departure in sentencing only if the court incorrectly believed that it lacked the

authority to do so. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.

2005). The record suggests that the district court recognized and displayed its

authority to grant (or deny) Boyd’s request. It particularly noted that Boyd had

“compiled a serious criminal record” in “a very short lifetime.” We therefore lack

jurisdiction to review the district court’s decision. Id.1

            B. Sentencing Disparity Between Crack and Powder Cocaine

       Boyd objects to the disparate sentences for crack and powder cocaine. He


       1
        We have also held that Booker does not alter the “rule that a district court’s discretionary
decision not to depart downward is unreviewable.” Id. (quoting United States v. Frokjer, 415
F.3d 865, 875 (8th Cir. 2005).

                                                 5
claims that his due process rights were violated because he was denied the

opportunity to present evidence about the disparity’s unreasonableness. Because

Boyd withdrew his objection at re-sentencing and consequently never raised a due

process claim, we review only for plain error Boyd’s newly raised claim. See

United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      Boyd’s contention that the crack-powder disparity is unconstitutional is

foreclosed by our binding precedent. See United States v. Williams, 456 F.3d

1353, 1364-69 (11th Cir. 2006) (declining to second-guess Congress’ decision to

maintain the crack-powder sentencing disparity). The district court was

accordingly not obligated sua sponte to consider the sentencing disparity. We find

no plain error in its decision not to do so.

                     C. The Reasonableness of Boyd’s Sentence

      Boyd’s final claim is that his sentence is unreasonable. When reviewing a

sentence, we first ensure that the district court correctly calculated the guideline

range. Winingear, 422 F.3d at 1245. Then we review the sentence for

reasonableness in light of the 18 U.S.C. § 3553(a) factors and “evaluate whether

the sentence achieves the purposes of sentencing” set forth in that statute. United

States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006) (citations omitted).

      Reasonableness review is “deferential.” United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). The challenging party “bears the burden of establishing


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that the sentence is unreasonable in light of both [the] record and the factors in

section 3553(a).” Id. Although a sentence within the guideline range is not per se

reasonable, “when the district court imposes a sentence within [that] . . . range, we

ordinarily will expect that choice to be a reasonable one.” Id. The district court is

charged with imposing a sentence that is “sufficient, but not greater than

necessary.” 18 U.S.C. § 3553(a). It need not recite a laundry list of the § 3553(a)

factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, the

record must reflect that the court adequately and properly considered those factors

and the applicable advisory guideline range. Id.

      The district court correctly calculated the guideline range. Boyd’s category

VI criminal history and Level 23 offense merited a range of 92 to 115 months.

The district court also considered every § 3553(a) factor even though it was not

required to do so. Id. It specifically articulated in open court the nature and

circumstances of the offense, Boyd’s history and characteristics, the need for the

sentence to reflect the seriousness of offense, the kinds of available sentences, the

advisory guidelines, and the need to avoid unwarranted disparities among

defendants in Boyd’s situation. 18 U.S.C. § 3553(a)(1-7).

      Furthermore, Boyd’s sentence was substantively reasonable. The statutory

maximum for Boyd’s offense was forty years’ imprisonment. Yet, the district

court imposed a sentence at the lower end of the advisory guideline range. Boyd’s


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ninety-two month sentence was not greater than necessary to achieve the purposes

of sentencing. We conclude that Boyd has not met his burden of establishing that

his sentence is unreasonable in light of the record and the § 3553(a) factors. See

Talley, 431 F.3d at 788. Boyd’s sentence is therefore affirmed.

      AFFIRMED.




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