           Case: 13-10069    Date Filed: 12/16/2013   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10069
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 5:08-cr-00047-CAR-CHW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                   versus


GREGORY RUTHERFORD,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                     ________________________

                            (December 16, 2013)



Before MARCUS, FAY and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Gregory Rutherford appeals his 120-month sentence imposed after he

pleaded guilty to distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(iii). On appeal, Rutherford argues that his sentence is procedurally

and substantively unreasonable. No reversible error has been shown; we affirm. 1

       We review a final sentence for procedural and substantive reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence

might be procedurally unreasonable if the district court fails to explain adequately

the chosen sentence. Id.

       Rutherford argues that his sentence is unreasonable procedurally because the

district court failed to explain adequately its decisions (1) to sentence Rutherford

as a career offender and (2) to grant a smaller downward departure than Rutherford

requested. Because Rutherford raises this argument for the first time on appeal, we




1
  We deny the government’s motion to dismiss Rutherford’s appeal based on the appeal waiver
in Rutherford’s plea agreement. During the plea colloquy, the district court mischaracterized the
terms of the appeal waiver; and the record does not otherwise make clear that Rutherford
understood the full implication of the appeal waiver. As a result, Rutherford’s appeal waiver
does not bar his claims on appeal. See United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.
1993).

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review only for plain error.2 See United States v. Aguillard, 217 F.3d 1319, 1320

(11th Cir. 2000).

        The district court’s explanation for the sentence imposed was sufficient.

When Rutherford challenged his career offender status at the sentencing hearing,

the district court explained -- and Rutherford conceded -- that his argument was

foreclosed by current circuit precedent. After considering both parties’ arguments

in support of the government’s substantial assistance motion, the district court said

expressly that the sentence imposed was appropriate in the light of the section

3553(a) factors and the “totality of the circumstances.” We see no plain error. The

district court is not required to discuss expressly each of the section 3553(a)

factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

        Rutherford also argues that his sentence is unreasonable substantively

because, although his designation as a career offender was “technically correct,”

his sentence overrepresents his criminal history. We evaluate the substantive

reasonableness of a sentence under a deferential abuse-of-discretion standard. See

Gall v. United States, 128 S.Ct. 586, 597 (2007). The party challenging the

reasonableness of the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both the record and the 18 U.S.C. § 3553(a) factors.


2
 Under plain-error analysis, Rutherford must show that “(1) an error occurred; (2) the error was
plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
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Talley, 431 F.3d at 788. We will not reverse unless we are “left with the definite

and firm conviction that 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.” United States v. Pugh,

515 F.3d 1179, 1191 (11th Cir. 2008).

      Rutherford’s sentence constitutes a 68-month downward departure from the

applicable guidelines range of 188 to 235 months’ imprisonment. Cf. Talley, 431

F.3d at 788 (concluding that sentences within the guidelines range are ordinarily

expected to be reasonable). Rutherford’s sentence is also well below the 40-year

statutory maximum sentence for his offense. See Gonzalez, 550 F.3d at 1324

(concluding that the reasonableness of a sentence may also be indicated when the

sentence imposed was well below the statutory maximum sentence).

      In fashioning Rutherford’s sentence, the court considered expressly the

extent of Rutherford’s substantial assistance and the section 3553(a) factors.

Based on this record, we are unconvinced that the district court committed a clear

error of judgment when it imposed Rutherford’s sentence.

      AFFIRMED.




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