                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            May 28, 2008
                             No. 07-14518                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 06-00464-CR-T-17-TGW

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ROBERT LEE WILLIAMS,
a.k.a. Rob 1,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 28, 2008)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Robert Lee Williams appeals his 235-month sentence, imposed after he pled

guilty to (1) conspiracy to possess with the intent to distribute 50 grams or more of

crack cocaine and a quantity of cocaine, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(iii)

and (b)(1)(C) (count 1); (2) conspiracy to unlawfully use firearms in relation to

drug trafficking crimes, 18 U.S.C. § 924(o) and 2 (count 2); and (3) possession

with the intent to distribute 50 grams or more of crack cocaine and a quantity of

cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and (b)(1)(C) (count 4). Williams

argues that the district court imposed a sentence that was greater than necessary to

achieve the purposes of sentencing set forth in 18 U.S.C. § 3553(a) when it

sentenced him within an advisory guideline range that was calculated based on the

application of a 100:1 crack cocaine-to-powder cocaine ratio. Williams asserts

that, in light of the Supreme Court’s ruling in Kimbrough v. United States, 552

U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the district court abused its

discretion by applying that ratio.

      For the reasons set forth more fully below, we affirm Williams’s sentence.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).

Unreasonableness may be procedural, when the court’s procedure does not follow

Booker’s requirements, or substantive. See Gall v. United States, 552 U.S. ___,



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128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Hunt, 459 F.3d 1180,

1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may

be procedurally unreasonable if the district court improperly calculates the

guideline imprisonment range, treats the Guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. Gall, 552 U.S. at ___, 128 S.Ct. at 597.

The Court also has explained that the substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. Id. It has suggested that review

for substantive reasonableness under this standard involves inquiring whether the

factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128

S.Ct. at 600.

      When imposing a sentence, the district court must first correctly calculate

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

Second, the district court must consider the following factors to determine a

reasonable sentence:

      (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

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      avoid unwanted sentencing disparities; and (10) the need to provide
      restitution to victims.

Id. (citing 18 U.S.C. § 3553(a)). “[N]othing in Booker or elsewhere requires the

district court to state on the record that it has explicitly considered each of the

§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, indications in the record that

the district court considered facts and circumstances falling within § 3553(a)’s

factors will suffice. Id. at 1329-30.

      We have recognized that “there is a range of reasonable sentences from

which the district court may choose,” and the burden of establishing that the

sentence is unreasonable in light of the record and the § 3553(a) factors lies with

the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). We have held that a sentence within the guidelines range is

neither per se reasonable, nor entitled to a presumption of reasonableness. See id.

at 786-88; Hunt, 459 F.3d at 1185.

      Williams does not challenge the procedural reasonableness of his sentence

on appeal. Nevertheless, the record demonstrates that the district court correctly

calculated the advisory guideline range, expressly considered the § 3553(a) factors,

and sufficiently explained its reasons for imposing a 235-month sentence. See

Gall, 552 U.S. at ___, 128 S.Ct. at 597.

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      As to the substantive reasonableness of his sentence, “[u]nder the statute

criminalizing the manufacture and distribution of crack cocaine, 21 U.S.C. § 841,

and the relevant Guidelines prescription, § 2D1.1, a drug trafficker dealing in crack

cocaine is subject to the same sentence as one dealing in 100 times more powder

cocaine.” Kimbrough, 552 U.S. at ___, 128 S.Ct. at 564. In Kimbrough, the

Supreme Court held that a district court may determine that “a within-Guidelines

sentence is ‘greater than necessary’ to serve the objectives of sentencing,” and in

making that determination, the district court “may consider the disparity between

the Guidelines’ treatment of crack and powder cocaine offenses.” Id. at ___, 128

S.Ct. at 564. In so holding, the Supreme Court overruled our earlier opinion in

United States v. Williams, 456 F.3d 1353, 1366 (11th Cir. 2006), which held that a

district court may not consider the disparity between crack and cocaine when it

imposes a sentence in a crack cocaine case. The Supreme Court also rejected the

Fourth Circuit’s reasoning that “‘a sentence . . . outside the guidelines range is per

se unreasonable when it is based on a disagreement with the sentencing disparity

for crack and powder cocaine.’” Kimbrough, 552 U.S. at ___, 128 S.Ct. at 564.

      Here, the district court expressly considered the § 3553(a) factors in

determining that a Guidelines sentence was appropriate and was not greater than

necessary to comply with the purposes of sentencing. In Kimbrough, the Supreme



                                           5
Court explained that a district court “may consider the disparity between the

Guidelines treatment of crack and powder cocaine offenses,” not that it must do so.

128 S.Ct. 558, 564 (emphasis added). Because “[t]he cocaine Guidelines, like all

other Guidelines, are advisory only,” Kimbrough, 128 S.Ct. at 564, the district

court acted within its discretion to determine that a within-Guidelines sentence

served the objectives of sentencing under § 3553(a). Nothing in either the decision

of the Supreme Court in Kimbrough or our precedents required the district court to

discuss the crack cocaine-to-powder cocaine disparity. See Scott, 426 F.3d at

1329. Accordingly, Williams has failed to establish that his sentence at the low-

end of the advisory guideline range is substantively unreasonable.

      In light of the foregoing, Williams’s sentence is

      AFFIRMED.




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