                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            NOV 21, 2008
                             No. 08-11618                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 07-00343-CR-KOB-PWG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CURTIS LEE BRASFIELD,

                                                         Defendant-Appellant.


                       ________________________

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

                           (November 21, 2008)

Before ANDERSON, MARCUS and FAY, Circuit Judges.

PER CURIAM:
       Curtis Lee Brasfield appeals his 60-month sentence after pleading guilty to

1 count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, he raises the following two arguments: 1) the district court

violated his due process rights and Fed.R.Crim.P. 32(i)(1)(C) by failing to disclose

to defense counsel, before the sentencing hearing, a letter upon which it relied at

sentencing; and 2) the district court’s 60-month sentence, which was the result of

an upward variance to twice the high-end of the applicable guideline range, was

unreasonable under 18 U.S.C. § 3553(a).1 For the reasons set forth below, we

affirm.

                                               I.

       A federal grand jury returned a single-count indictment against Brasfield,

charging him with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). At the plea hearing, the government proffered the following

facts that it expected to prove at trial. On July 18, 2005, a law enforcement officer

conducted a traffic stop of Brasfield. When Brasfield was ordered out of the

vehicle, officers observed a .45 caliber semi-automatic pistol in plain view.

       1
          There was a sentence appeal waiver in this case prohibiting Brasfield from appealing
his sentence unless, inter alia, the court imposed an “upward departure” from the applicable
guideline range. Although Brasfield received an upward variance under the 18 U.S.C. § 3553(a)
factors rather than an upward departure under the Guidelines, we nonetheless review Brasfield’s
arguments on appeal because the government has not sought application of the waiver, has not
filed a motion to dismiss the appeal, and has already briefed the case on the merits. United
States v. Valnor, 451 F.3d 744, 745 n.1 (11th Cir. 2006).

                                               2
Brasfield did not have a permit for the firearm and the authorities later learned that

it had been reported as stolen. Brasfield had a prior felony conviction in

Tuscaloosa County, Alabama, for possession of a controlled substance. Brasfield

pled guilty to the charge in the indictment pursuant to a written plea agreement.

      The probation officer prepared a pre-sentence investigation report (“PSI”)

and determined that Brasfield’s applicable guideline range was 24 to 30 months’

imprisonment based on an offense level of 13 and a criminal history category of

IV. The statutory maximum sentence for his offense was 10 years’ imprisonment,

and he was not eligible for probation under the Guidelines.

      The PSI contained the following information with respect to Brasfield’s

criminal history. He had one prior felony conviction for possession of a controlled

substance in Tuscaloosa County in 2003. In addition to that felony conviction,

however, Brasfield had several other convictions that were not felonies. In 1996,

when Brasfield was 17 years old, he was convicted of possession and distribution

of a small amount of crack cocaine. In 1997, he was convicted of disorderly

conduct and criminal coercion in connection with a traffic stop, where he

repeatedly threatened to kill the investigating officers “Texas style.” In 1998, he

was convicted of forgery. In 1999, he was convicted of driving with a suspended

license. In 2000, he was convicted of carrying a firearm without a license. Also in



                                           3
2000, Brasfield was convicted of possession of marijuana. In 2006, after the

instant offense occurred, Brasfield was convicted of harassment for threatening to

kill two law enforcement officers and their families. Brasfield was also convicted

of various traffic-related offenses, such as reckless driving, “switching tags,” and

reckless endangerment and resisting arrest. The probation officer also listed the

following five offenses for which Brasfield was charged but not convicted: assault

domestic violence, distribution of controlled substances, reckless endangerment,

carrying a firearm without a permit, and giving a false name and address to law

enforcement.

      The probation officer then summarized approximately 20 police reports

describing incidents implicating Brasfield in criminal activity. Several of these

incidents involved domestic violence against women and, on three occasions, the

victims declined to press charges. Several incidents involved Brasfield’s use or

threatened use of a firearm, including: firing a shotgun at an ex-girlfriend,

threatening to shoot a mother and her infant son, firing shots into an occupied

building, threatening a couple with a firearm by shooting at their feet, shooting out

the tires of a woman’s car, shooting into an occupied vehicle, threatening to shoot

another individual’s car, and threatening to shoot a woman. Other incidents

included the commission or attempted commission of armed robbery, burglary, and



                                           4
kidnaping.

      The probation officer recommended that the court impose a sentence above

the high-end of the applicable guideline range based on Brasfield’s criminal

history. The probation officer noted that in many of the reported incidents

described above, the victim initially agreed to press charges against Brasfield but

subsequently declined to do so, thus implying that the victim had been threatened.

He also pointed out that Brasfield was the leader of the Alberta City (“ABC”)

Boys, a gang in Tuscaloosa. The probation officer noted that, since 1995,

Brasfield had been listed as a suspect in 33 cases and had been arrested at least 57

times by the Tuscaloosa Police Department, thus informing the probation officer’s

view that Brasfield had not been adequately deterred from engaging in criminal

conduct. Significantly, the probation officer also stated: “It is noteworthy that the

Tuscaloosa Chief of Police has recognized a drastic decrease in ABC Gang activity

since the defendant’s absence.” Based on the above analysis, the probation officer

recommended that the court vary upward to a sentence of 70 months’

imprisonment.

      Brasfield raised numerous objections to the PSI not relevant here. However,

he did object to the assertion that he threatened any law enforcement officer in

connection with the 2006 harassment offense, to which the probation officer



                                           5
responded that the government planned to elicit testimony at the sentencing

hearing in this regard. He also objected to the inclusion in the PSI of the five

charges for which he was not convicted and the police reports implicating him in

criminal activity. He did not object to the inclusion of the police chief’s statement

that there had been a drastic decrease in ABC gang activity since Brasfield’s

incarceration.

      At sentencing, defense counsel declined the court’s opportunity to offer any

argument on his objections to the PSI, and the court overruled them. The court

noted that it had consulted the advisory guidelines and, having overruled

Brasfield’s objections, adopted the factual findings and guideline calculations in

the PSI.

      The court stated that it had extensively reviewed the PSI, which was one of

the longer ones it had seen, and noted that, while Brasfield only had one prior

felony conviction, he had a very lengthy criminal history dating back to his 1996

conviction for possession of crack cocaine. The court pointed out that guns had

been a part of Brasfield’s life for awhile, as he had previously been convicted of

carrying a firearm without a license. The court also emphasized the reports of

domestic violence in the PSI for which Brasfield was not convicted and questioned

whether Brasfield had prevented the victims from pressing charges through



                                           6
intimidation. The court then stated that it had reviewed a letter written by the

Tuscaloosa Chief of Police to the probation officer, where the police chief

discussed Brasfield’s criminal history and noted “the fact that since he has been

arrested and incarcerated, the police have seen a drastic decrease in the criminal

activity from the Alberta City’s gang.”2 The court then noted that the incidents

described in the PSI indicated that Brasfield had threatened other people and law

enforcement officers, and the court stated that it could not ignore that conduct. The

court again reiterated that, although Brasfield had only one prior felony conviction,

he had engaged in other felonious conduct for which he could have been convicted

had it not been for his victims’ fear of pressing charges.

       The court stated that it “ha[d] considered the sentencing factors of 18 U.S.C.

Section 3553(a) and [found] that those factors outweigh[ed] the advisory guideline

sentence.” The court explained that it had considered the nature and circumstances

of the offense and the history and characteristics of the defendant, stating that it

“had just outlined [its] view of the history and characteristics of the defendant

which, in [its] opinion, call[ed] for a higher sentence than called for under the

guidelines.” The court also stated that it had taken into account the need to reflect


       2
          In the text of the letter, and after informing the probation officer about Brasfield’s
extensive criminal history, the chief of police wrote: “Since the arrest and incarceration of Mr.
Brassfield [sic] we have seen a drastic decrease of criminal activity from the Alberta City’s
Gang.” He also requested the court to impose the maximum sentence.

                                                 7
the seriousness of the offense, promote respect for the law, and provide just

punishment for the offense, emphasizing that Brasfield had a prior firearm

conviction and that guns were particularly dangerous when “in the hands of people

who have a propensity to threaten other people.” The court also opined that it was

clear from Brasfield’s criminal history that he had no respect for the law and that it

was “time that he learned that he is not above the law.” With respect to deterrence,

the court stated that Brasfield had long been engaged in criminal conduct for which

there had been relatively little punishment, and it was therefore “time for him to

face the consequences.” The court then stated:

      I have also considered that an appropriate sentence is one that is
      necessary to protect the public from further crimes of this defendant.
      And it’s my belief that until this defendant faces substantial
      punishment and reckons with his conduct, that the public needs
      protection from him.

      I cite the letter from the Chief of Police which indicates that the
      community has been much safer since his departure and I intend to
      provide the public with further protection from him.

Finally, the court stated that a “significant term of imprisonment” was necessary to

provide Brasfield with effective correctional treatment.

      Based on this analysis of the § 3553(a) factors, the court imposed a sentence

of 60 months’ imprisonment, finding it to be reasonable and sufficient but not

greater than necessary to comply with the statutory purposes of sentencing.



                                           8
Defense counsel objected to the court’s consideration of the police chief’s letter on

the ground that he had not received it before the sentencing hearing and, therefore,

could not challenge its contents. The court overruled the objection, finding the

letter to be a mere summary of the criminal history contained in the PSI.

      Although the court had already pronounced its sentence, it reconvened the

hearing because police officers who were scheduled to testify on the government’s

behalf arrived in the courtroom. The government called two police officers with

the City of Tuscaloosa Police Department, who testified that, in October 2006,

upon responding to a report of gunfire, they encountered Brasfield who threatened

to kill them and their families. After this testimony, the court noted that Brasfield

had pled guilty to the harassment offense arising out of this incident, and that the

officers’ testimony added some detail to the PSI and confirmed the reasons the

court had previously given for imposing its upward variance. The court also noted

that the statutory maximum penalty was ten years’ imprisonment and that,

although it could have imposed such a penalty, it decided that five years’

imprisonment was sufficient.

                                          II.

A.    Due Process and Fed.R.Crim.P. 32(i)(1)(C)

      “We review de novo constitutional challenges to a sentence, assuming they



                                          9
are properly preserved.” United States v. Brown, 526 F.3d 691, 708 (11th Cir.

2008), petition for cert. filed, (U.S. No. 08-5564) (July 28, 2008).3 The provision

in Rule 32 on which Brasfield relies to support his due process argument provides:

“At sentencing, the court . . . must allow the parties’ attorneys to comment on the

probation officer’s determinations and other matters relating to an appropriate

sentence.” Fed.R.Crim.P. 32(i)(1)(C).

       In this case, defense counsel did not receive the police chief’s letter before

sentencing and the district court relied on the letter at sentencing. Nonetheless, we

decline to decide whether this constituted a violation of Rule 32(i)(1)(C) because,

even if it did, it was harmless error. See Fed.R.Crim.P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial rights must be

disregarded.”); United States v. Patrick, 988 F.2d. 641, 647-49 (6th Cir. 1993)

(applying harmless error where the sentencing court failed to notify the defendant

before sentencing that it would rely on extraneous evidence).4

       This is so because the information contained in the police chief’s letter was


       3
           There is confusion among the parties as to whether we should review Brasfield’s
argument for plain error. However, because we reject Brasfield’s argument under a de novo
standard of review, we do not decide whether Brasfield sufficiently objected to the police chief’s
letter at sentencing.
       4
          We do note, however, that other circuits have held that this sort of failure to disclose
violates Rule 32(i)(1)(C). See, e.g., United States v. Warr, 530 F.3d 1152, 1161-63 (9th Cir.
2008); United States v. Meeker, 411 F.3d 736, 741 (6th Cir. 2005); United States v. Nappi, 243
F.3d 758, 762-68 (3d Cir. 2001).

                                                10
also contained in the PSI, which defense counsel admittedly received and

reviewed before sentencing. Although most of the letter refers to Brasfield’s

criminal history, the district court relied only on the following sentence in the

letter: “Since the arrest and incarceration of Mr. Brasssfield [sic] we have seen a

drastic decrease of criminal activity from the Alberta City’s Gang.” The court

relied on this statement in analyzing the need to protect the public from further

crimes by Brasfield. However, this statement is contained in the PSI, where the

probation officer, in making his sentencing recommendation, states: “It is

noteworthy that the Tuscaloosa Chief of Police has recognized a drastic decrease

in ABC Gang activity since the defendant’s absence.” Defense counsel had the

opportunity to object to this statement in either his written objections or at

sentencing, but he failed to do so. In this respect, the Sixth Circuit has found

harmless error under similar circumstances:

      Where the evidence upon which the sentencing court relies without
      previously notifying the defendant is of the same character, allows the
      same inferences, and, most importantly, is subject to the same
      arguments in rebuttal as evidence in the record of which the defendant
      is already aware, it seems logical to conclude that advance notice
      would not give the defendant any additional incentive or ability to
      challenge the evidence. Accordingly, we hold that, because advance
      notice would not have given Patrick any increased incentive or ability
      to introduce evidence or make arguments in rebuttal, the sentencing
      court’s failure to provide advance notice of its intention to rely on
      matters outside the record constitutes harmless error.



                                           11
Patrick, 988 F.2d. at 648-49 (citations omitted); see also Nappi, 243 F.3d at 771-

72 (concluding that the defendant could not show that his substantial rights were

affected under the third prong of plain error review in part because the

information contained in an undisclosed state PSI, upon which the sentencing

court erroneously relied, was “largely cumulative” to the information contained in

the federal PSI). In sum, because the contents of the letter upon which the court

relied were made available to defense counsel before sentencing, any error in

failing to disclose the letter before sentencing was harmless.

B.       Reasonableness of the Sentence

         We review a defendant’s sentence for reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. __, __, 128 S.Ct. 586, 594,

169 L.Ed.2d 445 (2007). The party challenging the sentence “bears the burden of

establishing that the sentence was unreasonable in light of [the] record and the

factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

         Brasfield essentially raises two arguments in his brief: 1) the district court

did not adequately explain its variance; and 2) the district court did not consider

all of the 18 U.S.C. § 3553(a) factors because it relied exclusively on his history

and characteristics. We address these arguments in turn.



                                             12
       Brasfield first contends that the district court did not sufficiently explain the

reasons for its variance. On this point, the Supreme Court in Gall stated:

       If [the district judge] decides that an outside-Guidelines sentence is
       warranted, he must consider the extent of the deviation and ensure that
       the justification is sufficiently compelling to support the degree of the
       variance. We find it uncontroversial that a major departure should be
       supported by a more significant justification than a minor one.

552 U.S. at __, 128 S.Ct. at 597. As explained below, although the court imposed

a significant upward variance in this case, the court provided a sufficient and well-

reasoned justification for it.

       The court stated that it had reviewed Brasfield’s extensive criminal history

dating back to 1996 when he was 17 years old and convicted of distribution of a

small amount of cocaine. It noted that Brasfield was previously convicted for

carrying a firearm without a license and that guns had been part of his life for

awhile. The court expressed concern over the reports of domestic violence and

the implication that Brasfield, through intimidation, had prevented the victims

from pressing charges. In this respect, the court noted that, although Brasfield had

only one prior felony conviction, there was evidence of other felonious conduct

for which he could have been convicted. The court highlighted the police chief’s

letter indicating that there had been a drastic decrease in the criminal activity of

the ABC gang since his incarceration. The court explained that, in light of the



                                           13
above discussion, Brasfield’s history and characteristics called for a sentence

above the guideline range.

      The court then proceeded to analyze several of the § 3553(a) factors. The

court emphasized that guns were particularly dangerous when in the hands of

people who have the propensity to threaten others. The court further found that, in

light of his criminal history, Brasfield had no respect for the law and had not been

adequately deterred from engaging in criminal activity. The court highlighted

again the statement from the police chief about the decrease in the ABC gang’s

criminal activity since Brasfield’s incarceration and explained how this informed

the court’s view that substantial punishment was necessary in order to protect the

public. The court also found that a significant period of imprisonment was

necessary to provide Brasfield with effective correctional treatment. Finally, the

court found that the testimony of the two Tuscaloosa police officers regarding the

details of Brasfield’s harassment offense confirmed its previous reasons for

imposing an upward variance.

      The court’s above reasoning was specifically tied to the facts of Brasfield’s

case, namely his history of criminal activity, and was amply supported by the

record. Although the court imposed a significant upward variance, it thoroughly

explained why a sentence above the applicable guideline range was appropriate,



                                         14
and there is nothing to suggest that the court abused its discretion in this regard.

      Brasfield next argues that the court’s sentence was unreasonable because

the court relied too heavily on his history and characteristics and did not consider

all of the § 3553(a) factors. “Gall makes clear that the district court is obliged to

consider all of the § 3553(a) factors to determine whether they support the

sentence requested by a party.” Pugh, 515 F.3d at 1191 (quotation omitted). The

factors in § 3553(a) that the court must consider 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.

Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).

      In Pugh, we discussed the argument that Brasfield advances here:

      Moreover, a district court’s unjustified reliance on any one Section
      3553(a) factor may be a symptom of an unreasonable sentence.
      Likewise, a sentence may be substantively unreasonable when the
      district court . . . fails to consider pertinent section 3553(a) factors.

      We hasten to add that while the application of these analyses may
      suggest an unreasonable sentence, they do not necessarily make a
      sentence unreasonable: Gall itself found that the district court did not
      commit reversible error simply because it attached great weight to a

                                           15
      single factor. However, it remains uncontroverted that a sentence
      suffering from these symptoms may in fact be unreasonable,
      depending on an examination of the totality of the circumstances.

515 F.3d at 1191-92 (citations, quotations, and alterations omitted).

      As an initial matter, Brasfield ignores the fact that the district court in this

case expressly stated that it had “considered the sentencing factors of 18 U.S.C.

Section 3553(a) and [found] that those factors outweigh[ed] the advisory

guideline sentence.” Moreover, as discussed below, the record confirms that the

district court did consider the pertinent § 3553(a) factors.

      First, the district court considered the nature, circumstances, and

seriousness of Brasfield’s offense. 18 U.S.C. § 3553(a)(1), (a)(2)(A). Although

the court did not discuss the specific facts of his offense, the court emphasized

Brasfield’s historic involvement with firearms – especially his previous firearm

conviction – and the fact that guns were particularly dangerous in the hands of

those who have the propensity to harm others. In this respect, the court’s

statement was supported by the fact that numerous incidents described in the

police reports involved Brasfield’s actual or threatened use of firearms. Thus,

although Brasfield’s offense may have been a standard felon-in-possession

offense, the court sufficiently considered the nature and seriousness of his offense

in light of his historic involvement with firearms.



                                           16
      In addition, and as Brasfield concedes at one point in his brief, the court

also considered the applicable guideline range. 18 U.S.C. § 3553(a)(4). The court

stated that it had considered the advisory guidelines, clarified that Brasfield’s

guideline range was 24 to 30 months’ imprisonment, and explained that it was

imposing a variance above that range for the reasons explained above.

      The court’s consideration of the advisory guidelines also undermines

Brasfield’s argument that the court should have discussed the possibility that,

under § 3553(a)(6), its variance might create sentencing disparities with other

similarly situated defendants. This is so because the Supreme Court in Gall

rejected a similar argument:

      As with the seriousness of the offense conduct, avoidance of
      unwarranted disparities was clearly considered by the Sentencing
      Commission when setting the Guidelines ranges. Since the District
      Judge correctly calculated and carefully reviewed the Guidelines
      range, he necessarily gave significant weight and consideration to the
      need to avoid unwarranted disparities.

552 U.S. at __, 128 S.Ct. at 599. Furthermore, we have held that it is sufficient

for the district court to acknowledge that it has considered the § 3553(a) factors,

but it need not explicitly discuss each of them. United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005). Thus, the court’s failure to specifically discuss the

sentencing disparity factor is not fatal. In this respect, the present case does not

represent an extreme situation like the one in Pugh, where the district court

                                          17
imposed a non-custodial sentence for a child pornography offense, but failed to

explain how this sentence would avoid creating “profound disparities with other

similarly situated defendants” in light of the fact that we were unable to locate

another child pornography case where the court imposed a non-custodial sentence.

515 F.3d at 1202-03.

      With respect to § 3553(a)(5), Brasfield does not identify any “pertinent”

policy statements that were applicable in this case. It is noteworthy, however, that

there is a policy statement providing for an upward departure if the defendant

receives an enhancement for his involvement in a criminal street gang under 18

U.S.C. § 521. U.S.S.G. § 5K2.18. Although this policy statement is inapplicable

to Brasfield because he did not receive the § 521 enhancement, it appears to be the

most relevant policy statement to this case and, due to Brasfield’s involvement in

the ABC gang, does not work in his favor. Thus, this case is again unlike Pugh,

where the district court did not impose a period of supervised release, despite the

fact that the Commission’s applicable policy statement recommended the statutory

maximum period of supervised release for sex offenders. 515 F.3d at 1199.

      Finally, Brasfield does not explain how the court erred by not discussing the

“kinds of sentences available” under § 3553(a)(3), as a non-custodial sentence of

probation was not authorized in this case, and the court did find that a “significant



                                          18
period of imprisonment” was necessary in order to provide Brasfield with the

most effective correctional treatment.

       Despite considering all of the pertinent § 3553(a) factors, Brasfield is

correct that the district court relied primarily on his criminal history to justify its

variance. However, this reliance was not “unjustified” under the facts of this case.

See Pugh, 515 F.3d at 1191 (“Moreover, a district court’s unjustified reliance on

any one Section 3553(a) factor may be a symptom of an unreasonable sentence.”)

(emphasis added). The court commented that the PSI was one of the longest ones

it had ever seen in light of Brasfield’s lengthy criminal history. Similarly, in his

recommendation, the probation officer explained at length why he believed that

Brasfield’s criminal history justified an upward variance of up to 70 months’

imprisonment. Thus, the district court in this case did not ignore relevant factors,

but rather justifiably focused its attention on the one outstanding aspect of the

case, namely, Brasfield’s criminal history. See Pugh, 515 F.3d at 1203 (“[T]he

district court must give some weight to the factors in a manner that is at least

loosely commensurate with their importance to the case . . . .”). Indeed, it would

have been suspect had the district court not focused on Brasfield’s criminal

history. Furthermore, the government correctly points out that we have stated that

it is in the district court’s discretion regarding what weight to given to particular



                                            19
factors. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.) (“The weight

to be accorded any given § 3553(a) factor is a matter committed to the sound

discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.”) (quotations and alterations omitted), cert. denied,

128 S.Ct. 671 (2007). Accordingly, and for the reasons set out above, Brasfield

has not met his burden to show that his sentence was unreasonable.

                                         III.

      In sum, any error committed by the district court in failing to disclose the

police chief’s letter before sentencing was harmless, as the contents of the letter

upon which the court relied were contained in the PSI. In addition, Brasfield has

not met his burden to show that his sentence was unreasonable, as the district

court sufficiently explained the reasons for its variance, considered all of the

pertinent § 3553(a) factors, and justifiably relied on Brasfield’s lengthy criminal

history. Accordingly, we affirm Brasfield’s sentence.

      AFFIRMED.




                                          20
