             Case: 13-10337    Date Filed: 12/09/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-10337
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 9:12-cr-80154-KLR-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

GARY GAROUTTE,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (December 9, 2013)

Before TJOFLAT, FAY, and DUBINA, Circuit Judges.

PER CURIAM:

      Gary Garoutte appeals his sentence of 151 months of imprisonment, which

was imposed at the low end of the applicable Sentencing Guidelines range of 151
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to 188 months of imprisonment, following his guilty plea to distribution of

methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). We affirm.

                                          I.

      The undisputed facts in Garoutte’s presentence investigation report state,

from May 2012 to August 2, 2012, the Federal Bureau of Investigation

investigated his illegal drug trafficking activities. During the investigation, an

undercover law-enforcement officer made a number of controlled purchases of

methamphetamine from Garoutte, who later pled guilty to one count of distribution

of methamphetamine.

      Prior to sentencing, Garoutte filed a sentencing memorandum and requested

a downward variance from his Sentencing Guidelines range of 151 to 188 months

of imprisonment, based on his age and physical condition. He asserted he was

forty-nine years old, and his upper and lower body was paralyzed from a car

accident. To regain some of his movement, Garoutte had undergone multiple

surgeries on his back and neck, but he still required a cane or a wheelchair to

move. He also was treated with prescription pain medications to which he became

addicted. Garoutte further argued that the Sentencing Commission’s research

showed recidivism rates declined as age increased, that articles by Professor

Jonathan Turley stated the costs of housing the nonviolent elderly were three times

that of housing younger prisoners, many older prisoners were statistically low-risk


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in comparison to younger prisoners, and their conventional incarceration offered

little for public safety. Garoutte asserted a sentence within the career-offender

Guidelines would add to the high cost of the overburdened prison system without

furthering the 18 U.S.C. § 3553(a) factors.

      At sentencing, the district judge determined Garoutte essentially was

requesting a “second chance,” but he already had a second chance, when he

previously was imprisoned, which should have deterred him. The judge stated

Garoutte wanted a “third chance” and noted his argument that, as individuals got

older, they had a lower risk of recidivism. According to the judge, Garoutte was

“already older” at the time he committed “these crimes,” and “[h]e should have

gotten out of this a long time ago.” While the judge was sympathetic to Garoutte’s

condition, he did not see a basis for departing from the low-end of the Sentencing

Guidelines range. After considering the parties’ statements, the presentence

investigation report, and the statutory factors, the judge sentenced Garoutte to 151

months of imprisonment.

                                         II.

      On appeal, Garoutte argues his 151-month-imprisonment sentence is

unreasonable, based on the § 3553(a) factors. He asserts his drug crime occurred

over a three-month period, law enforcement allowed him to “remain free” during

this period, and his crime occurred under circumstances controlled by law


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enforcement with “a relatively low degree of risk or danger.” Because of his

mobility disability and age, Garoutte contends a shorter term of imprisonment

would have achieved the sentencing purposes of deterrence, public protection, and

just punishment. He argues the district judge failed to consider adequately and

properly the findings of the Sentencing Commission and Professor Turley

concerning older prisoners’ lower risk of recidivism and higher costs of housing

compared to younger prisoners. Finally, Garoutte argues the judge failed to

consider the kinds of sentences available and contends a reasonable sentence

would have included less incarceration and a greater use of residential confinement

and therapy for his addiction to pain medication.

      We review the reasonableness of a sentence deferentially for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). A district judge’s

sentence need not be the most appropriate, but it must be reasonable. United States

v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc). After giving a full

measure of deference to the sentencing judge, we may set aside a sentence only if

we determine the sentence imposed truly is unreasonable. Id. The party

challenging the sentence has the burden of establishing the sentence was

unreasonable, based on the record and factors set forth in § 3553(a). United States

v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). We ordinarily expect a sentence

imposed within the applicable Sentencing Guidelines range to be reasonable. Id.


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      We review the substantive reasonableness of a sentence by examining the

totality of the circumstances, which includes an inquiry into whether the § 3553(a)

factors support the sentence in question. United States v. Gonzales, 550 F.3d 1319,

1323-24 (11th Cir. 2008). The district judge must impose a sentence sufficient, but

not greater than necessary, to comply with the purposes listed in § 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 criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a).

In imposing a particular sentence, the judge also must consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable Guidelines range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7). We do not substitute our own judgment for that of the

district judge in weighing the relevant sentencing factors absent a clear error of

judgment. See United States v. Early, 686 F.3d 1219, 1223 (11th Cir. 2012). The

judge need not discuss specifically each of the § 3553(a) factors. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      Garoutte’s sentence of 151 months of imprisonment was imposed at the low

end of the Guidelines range of 151 to 188 months of imprisonment; we ordinarily


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expect a sentence imposed within the applicable Sentencing Guidelines range to be

reasonable. See Talley, 431 F.3d at 788. The record evidences the district judge

considered the § 3553(a) factors in imposing the total sentence, and nothing in the

record shows the total sentence is unreasonable based on those factors. Although

the judge did not explicitly state he had considered the kinds of sentences

available, he was not required to discuss specifically each of the § 3553(a) factors.

See Scott, 426 F.3d at 1329. The judge considered Garoutte’s arguments, which

showed he had considered his contentions based on the Sentencing Commission

and Professor Turley’s findings concerning older prisoners; the judge nevertheless

determined that a Guidelines sentence was warranted. Garoutte’s crime involved

numerous methamphetamine transactions with an undercover officer and

illustrated Garoutte’s willingness to continue engaging in criminal activity. The

district judge observed Garoutte previously had been sentenced to ten years of

imprisonment for controlled-substance crimes. Despite the length of the former

sentence, Garoutte had not been deterred from committing another drug crime.

Consequently, the judge determined Garoutte should have “gotten out of this a

long time ago.” Despite his age and physical infirmities, the district judge properly

gave weight to the need to deter Garoutte from committing future criminal conduct

and his criminal history.




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      In view of his age, his physical infirmities, and research showing that elderly

prisoners are statistically low-risk in comparison with younger prisoners, Garoutte

now asserts a shorter term of imprisonment and a greater term of residential

confinement and therapy would have achieved the sentencing purposes of

deterrence, public protection, and just punishment. He also notes data showing the

costs of housing nonviolent elderly prisoners are greater than the costs associated

with younger prisoners as a mitigating factor. We do not substitute our judgment

for that of the district judge in weighing the relevant sentencing factors absent a

clear error of judgment. See Early, 686 F.3d at 1223. Because of his criminal

history and the need to deter him from committing future crimes, Garoutte has not

shown such an error. See id. The district judge did not abuse his discretion in

sentencing Garoutte to 151 months of imprisonment.

      AFFIRMED.




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