                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11544                ELEVENTH CIRCUIT
                                                              MARCH 1, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                D. C. Docket No. 08-00210-CR-7-LSC-HGD

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANTOWAIN MCDAVID,
a.k.a. Pooky,

                                                          Defendant-Appellant.


                        ________________________

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

                               (March 1, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Antowain McDavid appeals his 140-month sentence for possession with
intent to distribute five grams or more of a mixture and substance containing

cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). On

appeal, McDavid argues that his sentence, 20 months above the Guidelines range

and statutory minimum, is substantively unreasonable. McDavid concedes

procedural reasonableness.

       We review the reasonableness of a sentence—“whether inside, just outside,

or significantly outside the Guidelines range—under a deferential abuse-of-

discretion standard.” United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir.

2008) (quotation omitted). “[A] district court has considerable discretion in

deciding whether the § 3553(a) factors justify a variance and the extent of one that

is appropriate.”1 United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009).

“While a sentencing judge is not required to state on the record that it has explicitly

considered each of the § 3553(a) factors,” the 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.” Livesay,


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                 The § 3553(a) factors include: (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. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (summarizing
18 U.S.C. § 3553(a)).

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525 F.3d at 1090 (quotation omitted). Accordingly, we will not vacate a sentence

unless 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.” Shaw, 560 F.3d at 1238. A defendant

bears the burden of showing that his sentence was unreasonable in light of both the

record and the § 3553(a) factors. Talley, 431 F.3d at 788. McDavid has not

carried this burden.

      Because McDavid had committed a prior felony drug offense, his conviction

under 21 U.S.C. § 841(a)(1) triggered a 120-month statutory mandatory minimum.

See 21 U.S.C. § 841(b)(1)(B) (“If any person commits such a violation after a prior

conviction for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less than 10 years and not

more than life imprisonment . . . .”). After concluding that the mandatory

minimum replaced the applicable Guidelines range of 92-115 months and listening

to McDavid’s mitigation arguments, the district court stated that it was “greatly

troubled by the defendant’s repeated drug offenses” and that “by dealing drugs,

[McDavid] is just going out and getting other people hooked on drugs.” Therefore,

due to McDavid’s demonstrated recidivism, the district court concluded that his

case was not “a minimum sentence case” and imposed a variant sentence 20-



                                           3
months above the statutory mandatory minimum. McDavid argues that this was an

abuse of discretion because his prior criminal history had already been considered

in determining the applicable Guidelines range, which was 92-115 months based in

part on his category VI criminal history classification, and in determining that the

statutory mandatory minimum of 120 months, which applied due to his prior

criminal history, became the Guideline sentence. We disagree.

      First, McDavid had not one, but four, prior drug felony convictions.

Therefore, McDavid’s argument that the mandatory minimum already took into

consideration his prior felony convictions is without merit. Although the

mandatory minimum is premised on the existence of a prior drug felony

conviction, it does not differentiate between those defendants who have only a

single prior conviction and those who are chronic drug felony offenders.

McDavid’s four prior drug felony convictions demonstrated a level of recidivism

not subsumed by the statutory mandatory minimum. Therefore, the district court

properly considered his recividism in its evaluation of the § 3553(a) sentencing

factors. See 18 U.S.C. § 3553(a)(1) (The court shall consider “the nature and

circumstances of the offense and the history and characteristics of the defendant.”).

      Second, even if there was some overlap between the conduct triggering the

application of the mandatory minimum and the district court’s upward variance, we



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have recognized that district courts may impose a variant sentence based on factors

already considered in the Guidelines calculation. United States v. Amedeo, 487

F.3d 823, 833–34 (11th Cir. 2007) (“In our view, based on the extraordinary

circumstances of this case, it was reasonable for the district court to rely on certain

aspects of Amedeo's conduct, particularly his abuse of the attorney-client

relationship, that it had already considered in imposing an enhancement.”); United

States v. Perez, No. 07-14026, 2008 WL 2446099, at *2 (11th Cir. June 19, 2008)

(“Simply because some of these factors were taken into account in the guidelines

calculation does not bar the court from considering them again as part of the §

3553(a) factors.”).

      Furthermore, McDavid’s 140-month sentence, though 20-months above the

guideline range and statutory minimum, still falls well below the statutory

maximum, which was a life sentence. See 21 U.S.C. § 841(b)(1)(B). We have

recognized that the fact that a sentence is below the statutory maximum sentence is

an indication of its substantive reasonableness. See United States v. Valnor, 451

F.3d 744, 751–52 (11th Cir. 2006).

      In sum, McDavid has failed to show that his 140-month sentence is

substantively unreasonable under the totality of the circumstances and the §

3553(a) factors. The district court properly calculated the Guidelines range and the



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application of the statutory mandatory minimum, listened to McDavid’s mitigation

arguments, and determined that a variant sentence was necessary to address

McDavid’s recidivism, to provide just punishment, to afford adequate deterrence,

and to protect the public from further crimes of this defendant. This was not an

abuse of its discretion.

      AFFIRMED.




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