                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE ELEVENTH CIRCUIT
                                   ________________________            FILED
                                                              U.S. COURT OF APPEALS
                                           No. 10-14852         ELEVENTH CIRCUIT
                                       Non-Argument Calendar        JUNE 15, 2011
                                     ________________________        JOHN LEY
                                                                      CLERK
                          D.C. Docket No. 5:09-cr-00076-CAR-CWH-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff–Appellee,

                                               versus

KENNETH GREGORY THOMPSON,

llllllllllllllllllllllllllllllllllllllll                        Defendant–Appellant.

                                     ________________________

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

                                           (June 15, 2011)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

         Kenneth Gregory Thompson pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e), and was sentenced to
188 months’ imprisonment and 5 years’ supervised release. Thompson appeals

from his sentence and argues that it was procedurally and substantively

unreasonable. Because we conclude that Thompson’s sentence was both

procedurally and substantively reasonable, we affirm.

      We review a sentence for procedural and substantive reasonableness under

an abuse of discretion standard. United States v. Wetherald, 636 F.3d 1315, 1320

(11th Cir. 2011). We first look to whether the district court committed any

significant procedural error. United States v. Pugh, 515 F.3d 1179, 1190 (11th

Cir. 2008). We then examine the substantive reasonableness of the sentence. Id.

      Thompson argues that his sentence is procedurally unreasonable because the

district court failed to ask him and his counsel whether they had read and

discussed the presentence investigation report (PSI). But because Thompson did

not object to the district court’s failure to directly ask whether he and his counsel

had read and discussed the PSI, we review this issue for plain error. United States

v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). To prevail, Thompson must

establish (1) that there was error; (2) that it was plain; and (3) that it affected his

substantial rights. Id.

      At sentencing, the district court is required to “verify that the defendant and

the defendant’s attorney have read and discussed the presentence report and any

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addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A). Although the district court

did not explicitly ask Thompson or his counsel whether they had read and

discussed the PSI, Thompson’s counsel discussed her objections to the PSI with

the district judge and Thompson wrote the judge a letter in which he referred to

the PSI. Under our caselaw interpreting an earlier version of Rule 32, that

probably would have been enough to satisfy compliance with the rule. See United

States v. Aleman, 832 F.2d 142, 144 (11th Cir. 1987). Since Aleman was decided,

however, Rule 32 has changed. But we need not decide whether the district court

complied with the new rule because Thompson has failed to demonstrate any

prejudice from the alleged error.

      Thompson claims that he was prejudiced because unobjected-to statements

in the PSI are admissions for sentencing purposes. But, tellingly, Thompson did

object to statements in the PSI, and his objections were considered by the district

court. He has not identified any other objections he would have made, much less

how those unmade objections would have affected his sentence, had the district

court asked him whether he and his counsel had read and discussed the PSI.

Accordingly, we conclude that Thompson failed to establish prejudice.

      Thompson next argues that the district court committed procedural error by

not adequately explaining its sentencing rationale. 18 U.S.C. § 3553(c); see also

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Gall v. United States, 552 U.S. 38, 51 (2007). The Supreme Court has said that

when the judge decides to apply the guidelines in a particular case, a lengthy

explanation is not always required. Rita v. United States, 551 U.S. 338, 356

(2007). The Court went on to say that “Circumstances may well make clear that

the judge rests his decision upon the Commission’s own reasoning that the

Guidelines sentence is a proper sentence . . . .” Id. at 357. This is such a case.

Here the district court considered the guidelines and imposed a sentence at the

bottom end of the range. The judge said he thought that the sentence was

appropriate and that it complied with the factors set forth in 18 U.S.C. § 3553(a).

Under our caselaw this explanation was sufficient.

      Next Thompson argues that it is unclear whether the district court

considered the § 3553(a) factors before imposing sentence. But the district court’s

statement that the sentence “complied with the factors that are to be considered as

set forth in 18 U.S.C. § 3553(a),” shows that it did. It is also clear that the district

court treated the guidelines as advisory. Throughout the sentencing hearing the

district court referred to the sentencing guidelines as “advisory” and specifically

mentioned that it was not “bound to apply the sentencing guidelines.”

Accordingly, we conclude that Thompson’s sentence is procedurally reasonable.




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        We now turn to Thompson’s arguments about the substantive

reasonableness of his sentence. Whether a sentence is substantively reasonable is

essentially a question whether the district court abused its discretion. Pugh, 515

F.3d at 1179. Although we do not presume that a sentence, like this one, that is

within the properly calculated guidelines range is reasonable, we ordinarily expect

that is the case. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). But

even if a sentence is within the guidelines, it must also, considering the totality of

the circumstances, achieve the purposes of 18 U.S.C. § 3553(a).1 Gall v. United

States, 552 U.S. 38, 51 (2007); Pugh, 515 F.3d at 1191. The party challenging a

sentence bears the burden of establishing its unreasonableness. Pugh, 515 F.3d at

1189.

        Thompson contends that his sentence is substantively unreasonable because

it fails to account for the circumstances of the offense, his employment history,


        1
            The purposes of § 3553(a) are:

                 (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 educational or vocational training or medical care; (6) the kinds of sentences
                 available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of
                 the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
                 and (10) the need to provide restitution to victims.

        18 U.S.C. § 3553(a).

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and the possibility that he will not receive credit for time served in state custody

before his case was federalized. Thompson’s argument boils down to a contention

that the judge did not adequately consider the § 3553(a) factors. Pugh, 515 F.3d at

1191–92 (noting that a sentence can be substantively unreasonable if the district

court fails to consider the “pertinent 3553(a) factors”). When Thompson

presented his mitigating evidence, the judge considered his arguments, but

rejected them because he felt Thompson’s conduct sounded like “something out of

a Western” and noted that Thompson could have made a different decision. Even

though the district judge did not explicitly mention Thompson’s employment

history, he did say that the sentence complied with the § 3553(a) factors, which

necessarily include Thompson’s “history and characteristics.” See United States v.

Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (“[A]lthough the district court’s

sentencing order made no mention of evidence that arguably mitigated in

Amedeo’s favor under § 3553(a), we cannot say that the court’s failure to discuss

this ‘mitigating’ evidence means that the court erroneously ‘ignored’ or failed to

consider this evidence in determining Amedeo’s sentence.”). Thus we conclude

that the district court adequately considered the relevant § 3553(a) factors.

      As for Thompson’s remaining argument, the district court explained that it

would not vary downward based on Thompson’s time in state custody because it

                                          6
believed that only the Bureau of Prisons had the authority to calculate credit for

time served, and it would be inappropriate for the court to vary downward to

ensure Thompson received such credit. The district court also thought it seemed

likely that Thompson would be credited for the time he spent in state custody. See

Rita v. United States, 551 U.S. at 357. We conclude that the district court was

within its discretion when it refused to vary downward to ensure Thompson would

receive credit for time served. Accordingly, we also conclude that Thompson’s

sentence is substantively reasonable.

AFFIRMED.




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