                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-17104                ELEVENTH CIRCUIT
                                                          SEPTEMBER 8, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-14024-CR-DLG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ALBERT LEE RIGGINS,

                                                          Defendant-Appellant.


                        ________________________

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

                             (September 8, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-Appellant Albert Lee Riggins was indicted for possessing more
than 5 grams of crack cocaine (“crack”) with intent to distribute, in violation of 21

U.S.C. § 841(a)(1)(B)(iii). Following a two-day jury trial, the jury returned a

special verdict finding that Riggins was guilty of possessing less than 5 grams of

crack with intent to distribute. The district court sentenced Riggins to 51-months’

imprisonment. Riggins appeals the procedural and substantive reasonableness of

this sentence.

                                           I. Facts

       On February 1, 2008, Detective Steve Kim of the Port St. Lucie, Florida,

Police Department gave an informant, Jason, $150 to purchase cocaine. Jason was

monitored with a listening device as he entered Riggins’ residence and emerged

approximately two and one-half minutes later with .7 grams of crack.1 Jason told

Kim that more crack was inside the residence. Based on this evidence, a search

warrant was obtained, Riggins’ home was searched, and the police recovered an

additional 5.7 grams of crack, the $150 that was originally given to Jason, and a

razor blade. Riggins was indicted for possessing with an intent to distribute more

than 5 grams of crack. The case proceeded to trial.

       At trial, in addition to the foregoing evidence, the following evidence was




       1
        The audiotape malfunctioned at times and thus only portions of the drug transaction
were documented.

                                               2
presented: following the search and after Riggins waived his Miranda2 rights, Kim

interviewed Riggins. Kim testified that Riggins admitted that the crack inside the

residence was his and that he had been selling crack for the past three months in

order to support his family. Drug Enforcement Administration (“DEA”) Agent

Michael Barbercheck, who de-briefed Riggins a few months after his arrest,

testified that Riggins told him at the de-briefing that he sold drugs and that he had

purchased as much as 14 grams of crack for $500 in the past from an individual

named “Pookie.” DEA Agent Nicolas Kent testified that one-tenth of a gram of

crack was the normal dose an individual would use in a single sitting, that the 6.4

grams possessed by Riggins therefore constituted approximately 64 doses of the

drug, and that such doses normally sell for $10 to $20 each.

      Riggins, testifying on his own behalf, stated that Jason had asked him for

drugs about eight times and, although Riggins told Jason that he did not use crack

anymore, Jason nonetheless continued to pester him for drugs. Riggins admitted

that he sold crack to Jason on the day in question, but claimed that he only did so

because he “got tired of [Jason] aggravating [him].” Riggins contended that he

contacted Pookie, arranged to purchase $150 worth of crack, Pookie dropped off a




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                               3
wafer of crack at Riggins’ residence,3 Riggins saturated the drugs with water to

increase their weight, and then Riggins called Jason to tell him to come get the

drugs. Riggins claimed that he broke off some of the crack, intending to keep it for

personal use, and then gave the rest to Jason in exchange for the $150. Riggins

testified that after Jason left, he noticed that Jason had left behind some of the

drugs that he purchased, but Riggins “picked up the remaining drugs that he left

. . . [, assuming that] he’ll be back.”

       During the course of his testimony, Riggins repeatedly claimed that he was

not a drug dealer, but rather a drug addict. The government questioned the truth of

Riggins’ claim that he was a drug addict, noting that he had been on supervised

release in the years leading up to his arrest, but had not failed any of his random

urinalysis tests. Riggins replied that it was “easy” to “dodge” these tests because

cocaine only remains in one’s system for 72 hours. He stated that “[a] lot of times”

he postponed test dates until the drugs were out of his system.

       In its closing, the defense argued that Riggins had been entrapped. Defense

counsel contended that Riggins was a drug addict who had been induced by the

government into selling drugs to Jason. The jury subsequently convicted Riggins

of possessing less than 5 grams of crack with intent to distribute.


       3
         Riggins testified that he did not have the money for the drugs, so Pookie advanced him
the crack, with the understanding that Riggins would pay the $150 once he sold the drugs.

                                               4
      The probation officer prepared a presentence investigation report (“PSI”).

The PSI held Riggins accountable for 6.4 grams of crack, pursuant to U.S.S.G.

§ 1B1.3, which yielded a base offense level of 24. See U.S.S.G. § 2D1.1(a)(3).

When applied to Riggins’ criminal history category of IV, this produced a

guideline range of 77 to 96 months’ imprisonment. Riggins objected that his

guideline sentence should not have been based on 6.4 grams of crack because the

jury explicitly found that Riggins intended to distribute less that 5 grams of crack,

and thus the jury must have believed that the unsold crack was for personal use.

Riggins argued that because only $150 was recovered from Riggins’ residence and

Kent testified that the street value of .1 grams of crack is at least $10, his guideline

range should have been based on 1.5 grams or less of crack. The government

replied that Riggins should be sentenced based on the entire amount recovered, 6.4

grams, and that he should also receive a two-level obstruction of justice

enhancement for offering false testimony at trial.

      At sentencing, the district court stated that it did “not want to speculate on

this issue” of how much crack Riggins intended to sell, and thus found that the

base offense level should be based on 1.5 grams of crack. Riggins’ probation

officer then took the stand and testified that Riggins was drug tested 31 times, and

on 29 of those occasions he did so on the same day he was instructed to report for



                                            5
testing. On one occasion he took the test a day late and on another occasion he

took it four days late. His test results were always negative for illegal drugs.

      Riggins took the stand to address the inconsistency between the probation

officer’s testimony and Riggins’ prior testimony that he rescheduled his drug tests

“[a] lot of times.” Riggins testified that he rescheduled urinalysis tests “on five or

six occasions” and that, additionally, he sometimes bought specialty products that

made him urinate more often, to thereby “flush [his] system out.”

      The district court ultimately found that Riggins had committed perjury, and

thus assessed a two-level obstruction of justice enhancement. With the reduced

base offense level and obstruction of justice enhancement, Riggins’ total offense

level was 18. An offense level of 18 and a criminal history category of IV yielded

a guideline range of 41-51 months’ imprisonment. Riggins asked the court to

consider, in light of United States v. Kimbrough, 552 U.S. 85 (2007), the disparity

between sentences for powder cocaine and crack cocaine. Riggins argued that had

he sold the same quantity of powder cocaine, his guideline sentence would have

been 27-33 months, and such a sentence would have been sufficient to adequately

punish him.

      Towards the conclusion of the sentencing hearing, Riggins apologized to the

court and closed by stating, “I’m not a drug dealer.” The court then engaged in a



                                           6
brief discussion with Riggins, in which the court said, “if you sell drugs to pay

your rent, you’re a drug dealer.” Riggins responded that he was not a drug dealer,

that he was behind in his rent payments, and thus the evidence indicated that he

was not a drug dealer because the fruits of an illicit business would have provided

him with the means to pay his rent.

      The court ultimately sentenced Riggins to 51 months’ imprisonment, noting

that defense counsel’s argument as to “the disparity between crack cocaine and

powder cocaine in determining an appropriate sentence was a convincing one until

I heard your client tell me that he wasn’t selling drugs . . . . And that’s why he got

the maximum sentence.”

      Riggins now appeals, arguing that his sentence is: (1) procedurally

unreasonable because the district court misapplied the obstruction of justice

enhancement and failed to consider the sentencing factors found in 18 U.S.C.

§ 3553(a); and (2) substantively unreasonable because a more lenient sentence

would have been appropriate to punish Riggins for his unlawful conduct.

                                    II. Discussion

      When reviewing the reasonableness of a sentence, this court conducts a 2-

step inquiry:

      first, the appellate court must ensure that the district court committed
      no significant procedural error, such as failing to calculate (or

                                           7
      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.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quoting Gall v.

United States, 128 S. Ct. 586, 597 (2007)). If the district court did not

procedurally err, this court reviews the substantive reasonableness of the sentence

for abuse of discretion, based on the “totality of the circumstances.” United States

v. Beckles, 565 F.3d 832, 845 (11th Cir. 2009).

A. Procedural Reasonableness

      Riggins contends that his sentence was procedurally unreasonable because

there was insufficient evidence from which to conclude that he proffered false

testimony and, even if he did, his false statement was not material. Thus, he argues

that the district court erroneously applied a two-point obstruction of justice

enhancement, which resulted in an improperly calculated guideline sentence. Next,

Riggins asserts that the district court did not adequately and properly address the §

3553(a) factors. Riggins argues that the district court placed an excessive amount

of emphasis on Riggins’ perjury in assessing an appropriate sentence within the

guidelines range, even after the court had already used the perjury to increase

Riggins’ criminal history category. Therefore, even though the district court



                                           8
purported to find the Kimbrough argument convincing, it did an “about face” and

did not consider Kimbrough or any other factors aside from Riggins’ perjury when

it imposed the sentence.

      The party challenging the reasonableness of a sentence “bears the burden of

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

the factors in section 3553(a).” A district court need only acknowledge that it has

considered the § 3553(a) factors; it need not explicitly discuss each of them.

United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). A lengthy discussion

is not required in the typical case, so long as the district court “set[s] 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.” Rita v.

United States, 551 U.S. 338, 356 (2007). “The weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court.”

United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation omitted).

“[A] district court’s unjustified reliance on any one Section 3553(a) factor may be

a symptom of an unreasonable sentence.” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008). Nevertheless, this court “will defer to the district court’s

judgment regarding the weight given to the § 3553(a) factors unless the district

court has made a clear error of judgment.” United States v. Gonzalez, 550 F.3d



                                            9
1319, 1324 (11th Cir. 2008) (quotation omitted).

      A defendant may obstruct justice by committing perjury. See U.S.S.G. §

3C1.1 cmt. n.4(b). “We review for clear error the district court’s factual findings

necessary for an obstruction of justice enhancement based on perjury.” United

States v. Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999) (citation omitted). The

Supreme Court has defined perjury as “false testimony concerning a material

matter with the willful intent to provide false testimony.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). A“material” statement is one that “if believed,

would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1

cmt. n.6.

      Here, the district court did not err by finding that Riggins willfully provided

false testimony. Riggins testified that he was drug addict, but had avoided testing

positive for drugs “[a] lot of times” or “five or six times” by rescheduling

urinalysis tests. Other evidence presented at trial and sentencing, however,

indicated that Riggins submitted urine samples on the same day that they were

requested 29 times, and that on only two occasions did he submit the samples late.

Moreover, officers testified that after his arrest, Riggins admitted that he had been

selling drugs for the past three months to support his family. The district court was

entitled to rely on this evidence in concluding that Riggins provided false



                                          10
testimony.

      Also, Riggins’ false testimony was material because, if believed, it

influenced or affected the issue under determination at trial. At trial, Riggins did

not deny selling some quantity of crack to Jason, but rather argued that some of the

crack found in his residence was for personal use. The jury apparently believed

this statement because it held Riggins liable for possessing less than five grams of

crack with intent to distribute, despite the fact that more than five grams of crack

was found in Riggins’ residence. If Riggins were a crack addict, this fact would

lend credence to his claim that some of the crack was for personal use.

Accordingly, testimony regarding this issue was material to his innocence or guilt.

Thus, the district court did not err by assessing an obstruction of justice

enhancement for Riggins’ perjured testimony.

      Finally, the district court adequately considered the § 3553(a) factors. The

court explicitly stated that it had considered the statements of the parties, PSI, and

sentencing factors in calculating Riggins’ sentence. The court properly noted

Riggins’ argument as to crack and powder cocaine sentencing disparities, but was

not required to adopt the more-lenient powder cocaine guidelines range. The

Supreme Court in Kimbrough merely held that it would not be an abuse of

discretion for a court to consider the crack and powder cocaine sentencing



                                           11
disparity– not that a court must adopt a lower guideline sentencing range in crack

cases. Kimbrough, 552 U.S. at 574. We thus hold that Riggins’ sentence was not

procedurally unreasonable.

B. Substantive Reasonableness

      Riggins notes in passing at several points in his brief, without explanation,

that his sentence was unreasonable because a more lenient sentence would

constitute adequate punishment for his crimes and would meet the goals specified

in § 3553(a). Even though a sentence is not per se reasonable by virtue of residing

within the guidelines range, “there is a range of reasonable sentences from which

the district court may choose, and when the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The

party challenging the reasonableness of the sentence bears the burden of

establishing that the sentence is unreasonable in light of both the record and the §

3553(a) factors. Id. Because Riggins has not provided any evidence to meet his

burden, we conclude that his sentence was substantively reasonable.

                                  III. Conclusion

      For the reasons set forth, we AFFIRM Riggins’ sentence of 51 months’

imprisonment.



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