          Case: 12-16405   Date Filed: 10/25/2013   Page: 1 of 8


                                                       [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-16405
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 3:12-cr-00012-CAR-CHW-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

JOSEPH D. BAUGHNS,

                                                        Defendant-Appellant.

                     ________________________

                           No. 12-16406
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 3:08-cr-00016-CAR-CHW-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                 versus

JOSEPH D. BAUGHNS,

                                                        Defendant-Appellant.
              Case: 12-16405     Date Filed: 10/25/2013   Page: 2 of 8


                           ________________________

                   Appeals from the United States District Court
                       for the Middle District of Georgia
                          ________________________

                                (October 25, 2013)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Joseph Baughns appeals his 85-month total

sentence, imposed after pleading guilty to one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1), and revocation of his supervised

release, 18 U.S.C. § 3583(e)(3), on an earlier felon in possession of a firearm

conviction. On appeal, Baughns argues that: (1) the district court’s decision to run

his 61-month sentence for the conviction offense and the 24-month sentence for

the revocation of supervised release consecutively was procedurally unreasonable,

because the district court failed to explain why it was imposing the sentences

consecutively; and (2) his 61-month, above-guideline sentence is substantively

unreasonable because the district court gave no weight to Baughns’s mitigating

evidence. The government argues that Baughns waived any right to a direct appeal

of the substantive reasonableness of his 61-month sentence because of an appeal-

waiver provision in his plea agreement. After careful review, we affirm.




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       We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). We review the validity of a sentence appeal waiver de novo. United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).

       In reviewing sentences for reasonableness, we typically perform two steps.

Pugh, 515 F.3d at 1190. First, we “‘ensure 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. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)).1 The district court is not, however, required to discuss all of the §

3553(a) factors in explaining its sentencing decision. United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2005).




1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) 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; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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      Relevant to the procedural reasonableness of the district court’s sentence in

this case are the law and Sentencing Guidelines concerning consecutive sentences.

The United States Code provides that “[t]he [district] court, in determining whether

the terms imposed are to be ordered to run concurrently or consecutively, shall

consider, as to each offense for which a term of imprisonment is being imposed,

the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). Further, the

Sentencing Guidelines provide that “[a]ny term of imprisonment imposed upon the

revocation of probation or supervised release shall be ordered to be served

consecutively to any sentence of imprisonment that the defendant is serving.”

U.S.S.G. § 7B1.3(f).     The commentary to § 7B1.3 also says that “it is the

Commission’s recommendation that any sentence of imprisonment for a criminal

offense that is imposed after revocation of probation or supervised release be run

consecutively to any term of imprisonment imposed upon revocation.”           Id. §

7B1.3, comment. (n.4).

      If we conclude that the district court did not procedurally err, we consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515

F.3d at 1190 (quoting Gall, 552 U.S. at 51). Applying “deferential” review, we

must determine “whether the sentence imposed by the district court fails to achieve

the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788.


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“[W]e will not second guess the weight (or lack thereof) that the [court] accorded

to a given factor ... as long as the sentence ultimately imposed is reasonable in light

of all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872

(11th Cir. 2010) (quotation, alteration and emphasis omitted), cert. denied, 131

S.Ct. 2962 (2011). We will not reweigh the relevant § 3553(a) factors, and will not

remand for resentencing unless the district court committed a clear error of

judgment in weighing the § 3553(a) factors by imposing a sentence outside the

range of reasonable sentences.     United States v. Langston, 590 F.3d 1226, 1237

(11th Cir. 2009). A district court’s unjustified reliance upon any one § 3553(a)

factor may be a symptom of an unreasonable sentence. United States v. Crisp, 454

F.3d 1285, 1292 (11th Cir. 2006). A district court’s failure to give mitigating

factors the weight a defendant contends they deserve, however, does not render the

sentence unreasonable. United States v. Lebowitz, 676 F.3d 1000, 1016-17 (11th

Cir. 2012), cert. denied, 133 S.Ct. 1492 (2013). A sentence imposed well below

the statutory maximum penalty is an indicator of a reasonable sentence. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The party

challenging the sentence bears the burden to show it is unreasonable. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S.Ct. 674

(2010).




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      Here, Baughns has failed to demonstrate that the district court imposed a

procedurally unreasonable sentence by denying his request for concurrent

sentences on his supervised release revocation and felon in possession of a firearm

conviction. The district court expressly said that it considered the § 3553(a)

factors in imposing the sentence. After the district court imposed the consecutive

sentences, it specifically explained its consideration of the § 3553(a) factors,

including: Baughns’s criminal history; the nature and circumstances of the current

felon in possession of a firearm offense, and its similarities to his previous felon in

possession of a firearm offense; Baughns’s history and characteristics; the need for

adequate deterrence; and the need to protect the public from further criminal

activity by Baughns.      Contrary to Baughns’s assertion, the district court’s

discussion of the § 3553(a) factors was in no way “cursory.” Although the district

court did not specifically discuss how the § 3553(a) factors justified the

consecutive nature of the sentence, Baughns points to no authority requiring the

court to do so. In any event, there is no requirement that the district court even

discuss all the § 3553(a) factors. See Talley, 431 F.3d at 786. Furthermore, by

imposing consecutive sentences, the district court followed the § 3553(a)(5) factor

of the policies and recommendations of the Sentencing Commission regarding

revocation of supervised release. See U.S.S.G. § 7B1.3; 18 U.S.C. § 3553(a)(5).




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      Turning to substantive reasonableness, we first must determine whether

Baughns has waived his right to appeal this issue through the appeal waiver in his

plea agreement.     A sentence appeal waiver will be enforced if it was made

knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343, 1350-51

(11th Cir. 1993).     To establish that the waiver was made knowingly and

voluntarily, the government must show either that (1) the district court specifically

questioned the defendant about the waiver during the plea colloquy, or (2) the

record makes clear that the defendant otherwise understood the full significance of

the waiver. Id. at 1351.

      We have enforced an appeal waiver where “the waiver provision was

referenced during [the defendant’s] Rule 11 plea colloquy and [the defendant]

agreed that [he] understood the provision and that [he] entered into it freely and

voluntarily.” United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001). An

appeal waiver “cannot be vitiated or altered by comments the court makes during

sentencing.” United States v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006).

      In this case, Baughns’s appeal waiver is valid. Baughns acknowledged that

he understood that he could not appeal the sentence imposed by the district court

“except for very limited reasons.” Additionally, Baughns agreed that he “freely

and voluntarily waive[d] [his] right to appeal [his] sentence except under limited

circumstances.” Although the district court did not engage in a long discussion


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about the appeal waiver with Baughns, the district court certainly did more than

simply “reference” the waiver and Baughns certainly agreed that he understood the

provision and entered into it freely and voluntarily.                     Finally, although the

presentence investigation report (“PSI”) stated that Baughns retained the right to

appeal if the district court imposed a sentence greater than the advisory guideline

range, this does not render the appeal waiver invalid. Because an appeal waiver

cannot be “vitiated or altered” by a district court’s comments during sentencing, it

likewise cannot be “vitiated or altered” by a probation officer in his preparation of

the PSI. Therefore, because Baughns’s appeal waiver only preserved his right to

appeal in the event of an upward departure under U.S.S.G. §§ 5K2.0 or 4A1.3,

Baughns has waived his right to appeal the imposition of his 61-month sentence.2

       AFFIRMED.




2
        In any event, the issue is meritless. As we’ve discussed, the district court said that it had
considered the various § 3553(a) factors and expressly addressed several of the factors and how
they affected the district court’s sentencing decision.
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