                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-11082         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     OCTOBER 19, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 1:09-cr-00174-JRH-WLB-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

KENNETH DARRELL STEVENS,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

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

                                      (October 19, 2010)

Before EDMONDSON, CARNES and MARTIN, Circuit Judges.

PER CURIAM:

         Kenneth Darrell Stevens challenges his sentence for possession of a firearm

and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g). Stevens
contends that his 77-month sentence, a 14-month variance from the upper end of

the 51 to 63 months range determined by the sentencing guidelines, is both

procedurally and substantively unreasonable.

      Stevens argues that the district court procedurally erred in imposing an

upward departure based on his criminal history score of 31 points because the

court did not follow the procedures required by U.S.S.G. § 4A1.3 and because the

court relied on mistaken facts about the nature of his criminal history. Stevens

also argues that, even if the district court did not err in imposing the departure, his

sentence was nevertheless unreasonable because: (1) the district court erroneously

concluded that he had a history of violent crimes, (2) his 77-month sentence was

unreasonable for a “status” crime, (3) the court erred in finding that Stevens posed

a risk of recidivism despite mitigating evidence, and (4) the court erred in

concluding that Stevens should be incarcerated instead of being treated for

substance abuse. Alternatively, Stevens argues that his sentence is unreasonable

because the district court considered only one of the 18 U.S.C. § 3553(a) factors

and failed to consider his mitigating evidence or adequately explain its sentence.

                                          I.

      We review the reasonableness of a sentence imposed under the advisory

sentencing guidelines only for an abuse of discretion. Gall v. United States, 552

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U.S. 38, 56, 128 S.Ct. 586, 600 (2007). The burden of establishing

unreasonableness lies with the party challenging the sentence. United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). When reviewing sentencing decisions

for abuse of discretion, we use a two-step process. “First, we review to ‘ensure that

the district court committed no significant procedural error, 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.’”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quoting Gall, 552

U.S. at 51, 128 S.Ct. at 597). The district court need not specifically discuss each

§ 3553(a) factor, provided that the court acknowledges that it considered all of the

factors. Talley, 431 F.3d at 786. The district court’s findings of fact supporting a

sentence are reviewed only for clear error. United States v. Docampo, 573 F.3d

1091, 1096 (11th Cir. 2009).

      If the district court’s sentencing decision is procedurally sound, we must

then determine whether the sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The district

court’s sentencing decision will be set aside only if we determine, “after giving a

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full measure of deference to the sentencing judge, that the sentence imposed truly

is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010).

The sentencing judge should “set 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,

127 S.Ct. 2456, 2468 (2007). While a district court is required to evaluate all of

the § 3553(a) factors, it is permitted to attach greater weight to one factor over

others. Shaw, 560 F.3d at 1237.

      Stevens contends that his sentence is procedurally unreasonable because the

district court did not follow the procedures required by U.S.S.G. § 4A1.3 in

arriving at his above-guidelines sentence. The court noted at the sentence hearing

that the PSR indicated that an upward departure under § 4A1.3 might be

warranted, and it allowed Stevens to present mitigating evidence. The court found

that Stevens’ criminal history score under the guidelines did not adequately take

into account his extensive criminal history or his “alarming level of recidivism.”

The court later explained why the nature and extent of Stevens’ criminal history

was of the kind or degree not adequately taken into consideration by the

guidelines:




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            This defendant has over twice the criminal history points needed
      to place him in the highest Criminal History Category, that is, a
      Category VI. At least two of his convictions were not counted, as the
      sentencing guidelines direct that only a maximum of four one-point
      convictions be counted pursuant to Sentencing Guideline Section
      4A1.1(c). Mr. Stevens has been arrested almost every year since age 20.
      A review of his criminal history reveals that the only years that Mr.
      Stevens was not arrested were the years that he was incarcerated.

             The Court also notes that Mr. Stevens’ record reflects a number
      of very serious crimes, including attacks on law officers, violent crimes,
      pointing guns at others, and his past activity reflects a total lack of
      respect of authority in that he has had a number of probation
      revocations. Clearly, Mr. Stevens’ egregious criminal record reflects an
      alarming level of recidivism and a likelihood of further offenses when
      not incarcerated.

Doc. 28 at 20–21. Stevens assumes that, based on these statements, the district

court imposed an upward departure on the basis that his “criminal history category

substantially under-represent[ed] the seriousness of [his] criminal history or the

likelihood that [he] will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). He argues

that if the court did impose an upward departure, it was procedurally unreasonable

because the court did not follow the procedures set out in U.S.S.G. § 4A1.3.

      In order to determine whether the district court imposed an upward

departure or an upward variance, we look to whether the court justified the

sentence by citing to a specific guidelines provision authorizing departure (which

would indicate an upward departure) or instead grounded its decision on its



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determination that the guidelines range was inadequate (which would indicate an

upward variance). See United States v. Kapordelis, 569 F.3d 1291, 1316 (11th

Cir. 2009); United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006). In this

case, the district court did not mention § 4A1.3 or any other guidelines provision

authorizing departure. Instead, the court explicitly found that the guidelines were

inadequate, and it based that determination on considerations drawn from the

factors listed in 18 U.S.C. § 3553(a):

      Accordingly, this Court has determined that the imprisonment range
      established by the advisory guideline system does not adequately
      address the facts of this case. The need to impose a sentence which
      reflects the seriousness of the offense, promotes respect for the law and
      provides a just punishment while serving as a deterrent to others as well
      as protecting this community from further crimes of Mr. Stevens were
      all factors considered by this Court in determining that a sentence
      outside the advisory guideline system is appropriate.

Doc. 28 at 21. We conclude that the district court relied on an upward variance

instead of an upward departure in imposing the above-guidelines sentence, and for

that reason it was not required to follow the procedures set forth in § 4A1.3.

      It was not clear error for the district court to determine from the undisputed

facts that Stevens’ criminal history included instances of violence, and it was not

an abuse of discretion for the court to consider those facts in sentencing Stevens to

a term of imprisonment that was above the range provided for by the guidelines.



                                          6
See Shaw, 560 F.3d at 1240–41 (affirming an upward variance of 83 months

based primarily on district court’s conclusion that a greater sentence was needed to

promote deterrence and a respect for the law in light of defendant’s extensive

criminal history); United States v. Williams, 526 F.3d 1312, 1323–24 (11th Cir.

2008) (it was not an abuse of discretion for the district court to consider

defendant’s prior offenses in determining whether to impose an upward variance

even though those offenses were already considered in calculating defendant’s

criminal history score).

      Finally, Stevens’ sentence is procedurally reasonable because the district

court considered all of the 18 U.S.C. § 3355 factors and adequately explained its

sentence. The court’s statements during the hearing show that it considered the

parties’ arguments, the advisory guidelines, and the statutory factors, thus

satisfying the requirements of § 3553(c). Although the court focused on the

dangers posed by Stevens’ “alarming level of recidivism,” the record makes clear

that the court also considered “[t]he need to impose a sentence which reflects the

seriousness of the offense, promotes respect for the law and provides a just

punishment while serving as a deterrent to others.” Cf. United States v. Irizarry,

458 F.3d 1208, 1211–12 (11th Cir. 2006) (affirming a district court’s decision to

apply an upward variance based on a single § 3553(a) factor, the need to protect

                                          7
the public from further crimes of the defendant). Therefore, the district court’s

reasoned explanation of its sentencing decision is sufficient for us to find that the

district court did not abuse its discretion by the manner in which it arrived at a

sentence outside the applicable guidelines range.

                                           II.

         Stevens contends that his sentence is substantively unreasonable because

the district court erred by concluding that his criminal history was “violent.” We

disagree. Stevens’ extensive record includes four convictions for battery, one of

which involved Stevens punching his victim in the face. On still another occasion,

Stevens punched his victim in the face several times, threw her down, kicked her

in the ribs, spat in her face, and dragged her down a hallway while holding a knife

to her throat. Stevens was also convicted of pointing a gun at another person and

of obstructing law enforcement officers, including resisting arrest. Finally, during

his commission of the offense at issue in this case, Stevens repeatedly punched the

arresting officer in the face while the officer tried to stop Stevens from swallowing

drugs.

         It was not unreasonable for the district court to sentence Stevens to a 77-

month term of imprisonment for what Stevens calls a “status” crime. Although

Stevens was convicted of being a felon in possession of a firearm and ammunition,

                                            8
he was arrested while attempting to sell illegal drugs to a confidential informant,

and he assaulted the arresting officer. His 77-month sentence is well below the

statutory maximum sentence of 10 years imprisonment. See Shaw, 560 F.3d at

1239–40 (affirming the district court’s upward variance from a guidelines range of

30 to 37 months to the statutory maximum of 120 months based on the defendant’s

twenty-six known offenses that gave him a criminal history score of 20).

      The district court did not abuse its discretion in its consideration of Stevens’

mitigating circumstances evidence or his request for drug treatment instead of

incarceration. As the court noted, Stevens had been arrested almost every year of

his adult life, he had a history of violence, he had demonstrated a disrepect of

authority, and his criminal history score of 31 was the highest the court had seen.

The court was not obligated to accept or be swayed by the testimony of Stevens’

brother and mother that he was turning his life around “prior to this last event.” In

fact, Stevens was arrested for the offense that led to this sentence during the period

he was attending court-ordered weekly counseling sessions for substance abuse.

      Accordingly, we hold that Stevens’ above-guidelines sentence is both

procedurally and substantively reasonable.

      AFFIRMED.




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