           Case: 12-11971    Date Filed: 11/15/2012   Page: 1 of 8

                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11971
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:11-cr-00327-TCB-ECS-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

AKIL SCOTT,

                                                      Defendant-Appellant.

                      ________________________

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

                            (November 15, 2012)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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      Akil Scott appeals his 14-month sentence, imposed after pleading guilty

to two counts of attempted possession with intent to distribute cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Counts 1 and 3); and two

counts of extortion under color of official right, in violation of 18 U.S.C.

§ 1951(a) (Counts 2 and 4). On appeal, Scott argues that his sentence is

substantively unreasonable because the district court unfairly balanced the 18

U.S.C. § 3553(a) factors to emphasize deterrence, rather than fully account for his

self-rehabilitation. After a thorough review of the record and briefs, we affirm.

                                I. BACKGROUND

       Scott was a detention officer at the Fulton County Jail (FCJ). In early

2010, the FCJ initiated an internal investigation based on reports from inmates that

detention officers were smuggling cell phones, cigarettes, and illegal drugs into

the jail for the inmates. On August 2, 2010, Scott arranged a drug deal with an

undercover Federal Bureau of Investigation (FBI) agent purporting to be an

inmate’s outside drug connection. At a later meeting, the agent gave Scott a

balloon filled with sham cocaine and $350 for the delivery, which Scott gave to

the inmate. Scott then allowed the inmate to use his cell phone to confirm delivery

with the agent. Scott continued to communicate with the agent by telephone,

expressing interest in delivering more drugs to FCJ inmates. On September 22,

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2010, Scott met with the same agent and accepted another balloon and $300,

which he then delivered to the same inmate. Scott was arrested and later indicted

on June 29, 2011, along with three other defendants who were indicted for similar

conduct.

      For Counts 1 and 3, the presentence investigation report (PSI) assigned a

base offense level of 12 for an offense involving less than 25 grams of cocaine

pursuant to U.S.S.G. § 2D1.1(c)(14). Scott received a two-level enhancement

because the offense involved distribution of a controlled substance in a

correctional or detention facility, see U.S.S.G. § 2B1.1(b)(4), and a two-level

enhancement for abusing a position of public trust in a manner that significantly

facilitated the commission or concealment of the offense. See U.S.S.G. § 3B1.3.

These adjustments yielded an offense level of 16. For Counts 2 and 4, the PSI

assigned a base offense level of 14, see U.S.S.G. § 2C1.1, and added two levels

under § 2C1.1(b)(1) because the offense involved more than one extortion. Under

§ 2C1.1(c)(1), the greater adjusted offense level was 16.

      Scott received a three-level reduction for acceptance of responsibility, see

U.S.S.G. § 3E1.1(a) and (b), yielding a total offense level of 13. Based on a

criminal history category of I and a total offense level of 13, Scott’s advisory

Guideline imprisonment range was 12 to 18 months. The maximum statutory

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penalty was 20 years’ imprisonment for each count. Neither party objected to the

PSI.

       At sentencing, the district court summarized the PSI’s factual findings and

Guideline calculations before discussing the factors in this case, including the

seriousness of an offense involving four federal felonies, Scott’s personal

hardships, and his genuine remorse and rehabilitation. The court compared Scott’s

culpability with that of three other defendants in the interest of avoiding

sentencing disparity, and denied Scott’s request for one day of imprisonment. The

court sentenced Scott to 14 months of imprisonment and gave the following

explanation:

       The court has carefully considered all sentencing factors set forth in
       18 United States Code 3553(a) and the problem that this defendant
       has going against him is the need for deterrence. I cannot
       countenance his conduct simply because he obviously has genuinely
       and thoroughly changed . . . . [B]ecause of the seriousness of the
       offense and because of the four counts being involved, I believe that a
       guideline sentence is appropriate.

(R1-35 at 19). The court emphasized that it believed in Scott but could not

“possibly go any less than [14 months] in light of the breach of the public trust and

the danger to the jail.” (Id. at 20). Scott objected to the sentence as substantively

and procedurally unreasonable due to the court’s emphasis on deterrence to the

exclusion of the other factors.

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                                     II. DISCUSSION

       We review the reasonableness of sentences under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The party challenging the sentence has the burden of

establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors.1 United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)

(per curiam).

       To be procedurally reasonable, the district court must correctly calculate the

Guidelines range, consider all of the § 3553(a) factors, and make an

“individualized assessment based on the facts presented.” See Gall, 552 U.S. at

49–50, 128 S. Ct. 586, 596–97. The district court must impose a sentence

“sufficient, but not greater than necessary, to comply with the purposes” listed in

18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and
history and characteristics of the defendant; (2) the need for the sentence to reflect the
seriousness of the offense; (3) the need to promote respect for the law and afford adequate
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with
education and vocational training and medical care; (6) the kinds of sentences available; (7) the
Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a)(1)–(7).


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criminal conduct, and protect the public from the defendant’s future criminal

conduct. Id. at 50, 128 S. Ct. at 596. A sentence may be substantively

unreasonable if the district court arbitrarily selects the sentence, bases the sentence

on impermissible factors, fails to consider pertinent § 3553(a) factors, or

unjustifiably relies on any one factor. See United States v. Pugh, 515 F.3d 1179,

1191–92 (11th Cir. 2008) (citation and internal quotation marks omitted). 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 (2007). Every § 3553(a) factor need not be discussed. See United

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

need only make clear that it considered a number of the sentencing factors. See

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).

      Although we do not automatically presume the reasonableness of a sentence

falling within the Guidelines range, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (citation

omitted). A sentence imposed well below the statutory maximum penalty is

another indicator of a reasonable sentence. See United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008) (per curiam). We will reverse only if “left with

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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.” Pugh,

515 F.3d at 1191 (internal quotation marks omitted).

      Here, Scott argues that his sentence was substantively unreasonable because

the district court put too much weight on the deterrence factor to the exclusion of

the other § 3553(a) factors. Scott argues that although the court recognized that

Scott had “turned his life around,” it focused too much on sending a message to

other FCJ employees through Scott’s sentence. He further contends that he was

less culpable than two other detention officers who were convicted, and the court’s

concern over sending a message could have been addressed by those other

officers’ sentences. Scott argues that because the court unfairly balanced the

factors to emphasize deterrence, rather than fully account for his self-

rehabilitation, his sentence should be vacated and remanded for resentencing.

      Contrary to Scott’s argument, the district court did not give undue weight to

general deterrence at the expense of the other § 3553(a) factors. In fact, the court

discussed the other factors at length, including the applicable Guideline range,

Scott’s background and post-offense rehabilitation, and the seriousness of

committing four federal felonies involving a breach of public trust. The court

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acknowledged that Scott had “turned his life around,” but felt that a Guideline

sentence was appropriate after careful consideration of all of the sentencing

factors, including, but not limited to, the need to deter criminal conduct.

Moreover, Scott’s 14-month sentence was at the lower end of the applicable

Guideline range of 12 to 18 months’ imprisonment, and well below the statutory

maximum term of 20 years’ imprisonment. 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. §

1951(a). This court ordinarily expects such a sentence to be reasonable. See

Gonzalez, 550 F.3d at 1324; Hunt, 526 F.3d at 746. Based on the record, Scott’s

sentence was not outside the range of reasonable sentences dictated by the facts of

this case. See Pugh, 515 F.3d at 1191. Scott fails to meet his burden of showing

that his 14-month sentence, imposed within the Guideline range, is substantively

unreasonable in light of the record and the § 3553(a) factors.

      Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we affirm.

      AFFIRMED.




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