                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              NOV 20, 2008
                               No. 08-12689                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 07-00026-CR-6

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MARTIEL SHARMEL LEEKS,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (November 20, 2008)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

     Appellant Martiel Sharmel Leeks was indicted on three counts of acquiring
firearms by knowingly making false and fictitious written statements to federally

licensed firearms dealers, in violation of 18 U.S.C. § 922(a)(6). These charges

stemmed from three transactions in which Leeks purchased eight firearms from

federal firearms licensees. In each transaction, Leeks completed a Bureau of

Alcohol, Tobacco, and Firearms Form 4473, in which he indicated that he was the

actual buyer of the firearms listed on the form. Subsequent events and

investigation revealed that this information was false and that the firearms were

later illegally transferred to other parties. Three of the guns were ultimately

recovered by law enforcement: the first after a suicide in Virginia; the second

during an arrest for delivery of crack cocaine in New York; and the third at the

home of a convicted felon in New York.

       On January 24, 2008, Leeks pleaded guilty to one count of the indictment.

The sentencing hearing was held on May 6, 2008. At the hearing, the district court

reviewed the Presentence Investigation Report (“PSI”).1 Neither party objected to

the portion of the PSI that identified an offense level of 17 2 and criminal history




       1
         The facts in the PSI are deemed admitted because Leeks pleaded guilty and made no
factual objections to the PSI. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
       2
         The base offense level was 12, U.S. Sentencing Guidelines Manual (“U.S.S.G.”) §
2K2.1(a)(7) (2007), plus 4 levels for eight firearms involved, id. at § 2K2.1(b)(1)(B), plus 4
levels for trafficking in firearms, id. at § 2K2.1(b)(5), minus 3 levels for acceptance of
responsibility, id. at § 3E1.1.

                                                 2
category of III,3 which resulted in a guideline range of 30 to 37 months

imprisonment. Leeks did object, however, to the portion of the PSI in which the

probation officer recommended an upward departure to 51 months imprisonment,

pursuant to U.S.S.G. § 4A1.3, because Leeks’ criminal history category

“substantially under-represented the seriousness of the defendant’s criminal

history, and particularly the likelihood that he will commit future crimes.”

       Defense counsel acknowledged that Leeks had been convicted of ten other

crimes, but only three of them were assigned criminal history points. She argued

that the convictions that did not receive points should not be considered by the

district court for two reasons: (1) consideration of these convictions would violate

Alabama v. Shelton, 535 U.S. 654 (2002), as they were obtained without the aid of

counsel; and (2) these crimes involved minor misdemeanors and traffic offenses.

Leeks, his mother, and a woman with whom he has a daughter thereafter testified

as to Leeks’ rehabilitation and good relationship with his family.

       The government agreed that the district court should not assign criminal

history points for convictions that were unconstitutionally obtained, but argued that

it could look at Leeks’ prior conduct to show a high risk of recidivism. The



       3
         Leeks received a total of 5 criminal history points for two misdemeanor convictions for
possession of less than one ounce of marijuana and one felony conviction for possession of
cocaine and MDMA (aka ecstacy).

                                                3
government argued that the convictions that did not result in criminal history

points painted the true picture of Leeks: one of a repeat offender. The probation

officer told the district court that the records for these convictions could not be

obtained, and thus it could not be verified whether Leeks did or did not have

counsel during those proceedings. She stated that by virtue of the inability to

include these convictions in determining Leeks’ criminal history, “he was spared a

total of ten criminal history points.” She also took issue with defense counsel’s

characterization of Leeks’ crimes as minor, noting that one of these crimes

involved, inter alia, fleeing from the police while an unrestrained toddler was in the

car. She noted that the crimes for which points were assigned, including felony

possession of cocaine and MDMA, did not tell the full story of Leeks’ criminal

activity because other charges were dropped after a plea agreement was procured,

including charges related to Leeks’ possession of marijuana and a gun at the time

of the arrest.

       The district court ultimately imposed a sentence of 48 months imprisonment,

3 years supervised release, a $2,400 fine, and a $100 special assessment. In doing

so, the court acknowledged the 30 to 37 month guideline sentence range and that it

did not consider the allegedly uncounseled convictions in determining Leeks’

criminal history, but stated that these convictions did nonetheless “show[]



                                           4
continual misbehavior and criminal conduct.” The court emphasized that Leeks’

arrest record indicated a pattern of criminal conduct, beginning at age 17 and

continuing to his then present age of 27. The district court noted that Leeks’

record indicated that he “does not look as if [he has] been very interested in living

within the confines of the law.” The district court listened to Leeks’ witnesses who

testified that despite his past indiscretions, Leeks had matured. The court

disagreed, however, noting that Leeks’ most recent crime was the possession of

cocaine and MDMA, evidencing that he had recently “graduated from

misdemeanors into felonies.”

       The district court also discussed the distinct circumstances of this case. The

guns that were recovered had fallen into the hands of criminals and were used for

the purposes of criminal activity. The court noted that five guns were still

unaccounted for and “people who are otherwise law abiding will in all likelihood

suffer.” Lastly, the court pointed out that there was very little evidence in Leeks’

record of legitimately earned income, positing that Leeks might support himself

through ill-gotten gains.

       Leeks now appeals his sentence, arguing that its imposition was procedurally

unreasonable.4


       4
         Leeks’ brief only raises issues of procedural reasonableness, not substantive
reasonableness. Therefore, our review is limited to this issue. See Dalrymple v. United States,

                                                5
                                                 I.

       At the outset, this court must determine whether the district court’s deviation

from the Guidelines sentencing range represents an upward departure, under

U.S.S.G. § 4A1.3(a), or a variance, under 18 U.S.C. § 3553(a). Although either

section can be used by a district court in concluding whether to deviate from the

Guidelines range, they require the consideration of different factors. See United

States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006).

       Based on a review of the record and applicable factors, we conclude that the

district court imposed a variance under 18 U.S.C. § 3553(a). First, in the

“Statement of Reasons,” which was issued by the court on the date of sentencing,

the court checked boxes under a section entitled “Reason(s) for Sentence Outside

the Advisory Guideline System,” indicating that it relied upon three § 3553(a)

factors in deviating from the Guidelines range. Notably, it did not check any boxes

under another section entitled “Reason(s) for Departure,” which included “4A1.3

Criminal History Inadequacy.” Second, although the district court did not

expressly reference § 3553(a) at sentencing, a review of the record indicates that its

analysis focused upon § 3553(a) factors, such as the nature and circumstances of

the offense and the need for the sentence imposed to reflect the seriousness of the


460 F.3d 1318, 1324 n.6 (11th Cir. 2006) (issues not raised in an appellant’s initial brief are
abandoned).

                                                 6
offense. The district court’s application of these factors is discussed below.

                                           II.

      We review the procedural reasonableness of a district court’s sentence for

abuse of discretion. Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007).

The party challenging the sentence has the burden of establishing

unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Although the Sentencing Guidelines are no longer considered mandatory, they

must be consulted and considered by the district court. United States v. Booker,

543 U.S. 220, 264 (2005). The Supreme Court has explained that our review of the

procedural reasonableness of a district court’s sentencing decision should focus

upon considerations “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.

      Both parties agree that Guidelines range was properly calculated and was

considered by the district court. Leeks contends, however, that the district court

subsequently erred in granting a variance from the Guidelines range. Leeks argues

that the court did not consider all of the § 3553(a) factors, its analysis included an



                                           7
overemphasized and inaccurate categorization of Leeks’ criminal history, and it

impermissibly considered the circumstances surrounding the instant offense for

which Leeks was being sentenced.

      Section 3553(a) includes a list of factors which a court should consider

before granting a variance:

      (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
      deterrence; (4) the need “to protect the public from further crimes of
      the defendant; ” (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) pertinent policy
      statements of the Sentencing Commission; (9) the need to avoid
      unwarranted sentencing disparities; and (10) the need to provide
      restitution to victims.

Irizarry, 458 F.3d at 1211 n.2. The weight given to particular sentencing factors is

committed to the sound discretion of the district court. United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007).

      In this case, the district court’s “Statement of Reasons” indicates, and the

record confirms, that it chiefly relied on three § 3553(a) factors in choosing to

impose a sentence greater than that of the Guidelines range: (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



                                           8
promote respect for the law, and to provide just punishment for the offense; and (3)

the need to protect the public from further crimes of the defendant. We have held

that when considering a variance, a district court need not “state on the record that

it has explicitly considered each of the § 3553(a) factors or [] discuss each of the

§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

       Although uncounseled convictions may not be used to compute a

defendant’s criminal history category, United States v. Gray, 367 F.3d 1263, 1273

(11th Cir. 2004), they may be used to determine the defendant’s character. United

States v. Peagler, 847 F.2d 756, 758 (11th Cir. 1988). Leeks has ten convictions,

three of which are for drugs offenses involving possession of three types of drugs.

Leeks has enabled guns to fall into the hands of felons and drug dealers and has

almost no legitimate income. The district court therefore did not abuse its

discretion in concluding that Leeks’ “criminal activity has been consistent for

many years,” “his arrest[s] have increased in frequency and severity over time,”

and he “has not demonstrated at this point that he is anything but a drug dealer.”

      The district court’s consideration of the circumstances surrounding the crime

for which it sentenced him were also proper. Leeks argues that the Guidelines

range already reflected the circumstances of this case, and that a variance based on

consideration of these facts essentially results in double-counting. This position,



                                           9
however, is undermined by both the purpose of the Sentencing Guidelines and the

text of § 3553. The Supreme Court’s holding that the Sentencing Guidelines are

no longer mandatory, as articulated in Booker, reflects the understanding that

although the Guidelines estimate a reasonable sentence, they cannot account for the

individual particularities of each case. See Booker, 543 U.S. at 264-65 (treating

the Guidelines as advisory helps “to avoid excessive sentencing disparities while

maintaining flexibility sufficient to individualize sentences where necessary”).

Moreover, the text of § 3553 specifically mandates that in reaching a sentence that

is “sufficient, but not greater than necessary,” the court should consider factors

such as the circumstances and seriousness of the offense. 18 U.S.C. § 3553(a). In

concluding that a variance was warranted, the district court did not abuse its

discretion in considering that Leeks’ crime involved three separate unlawful

purchases. It noted that the guns procured in these transactions have fallen into the

hands of felons, have been used during the commission of crimes, and have already

resulted in one death. The district court also noted that the public may later be

harmed by Leeks’ crime because five other guns are yet to be recovered and may

be used to harm others.

      For the aforementioned reasons, we find that the district court did not abuse

its discretion in imposing a variant sentence.

      AFFIRMED.

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