                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               AUGUST 29, 2007
                               No. 06-16313                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 04-00226-CR-LC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JESSIE SCOTT,

                                                            Defendant-Appellant.


                         ________________________

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

                               (August 29, 2007)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     For a second time, Jessie Scott appeals his 120-month prison sentence for
threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B). In a prior

published decision, we vacated a sentence of equal length that the district court

imposed earlier. See United States v. Scott, 441 F.3d 1322, 1329–30 (11th Cir.

2006).

          The facts are set forth in great detail in our previous published decision.

See Scott, 441 F.3d at 1324–26. Nevertheless, a brief recitation of the facts

pertinent to this appeal is necessary. On September 14, 2004, while serving his

sentence for carjacking, Scott mailed a threatening letter to Judge Charles R. Butler

of the United States District Court for the Southern District of Alabama, the judge

who had sentenced him following his carjacking conviction. The letter instructed

Judge Butler “to watch [his] back Every Step Of The Way” because “I Will Get

you Killed One Day.” The letter was signed “TIME BOMb.” Scott wrote to Judge

Butler again on September 19, 2004, enclosing a second threatening letter, as well

as an additional envelope. This additional envelope contained a third letter that

included a threat to kidnap Judge Butler’s children, along with a white powder

which was eventually identified as a cleaning substance.

         Judge Butler’s staff alerted the Marshals Service. The Federal Bureau of

Investigation interviewed Scott in prison on September 23, 2004. During the

interview Scott acknowledged sending the letters. When asked if he intended to



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make good on these threats upon release from prison, Scott stated: “There are a lot

of people that I want to do something to, but I have not made up my mind when or

where I will do it.” In response to the agents’ further questioning, Scott just

smiled.

      On November 17, 2004, a grand jury handed down a six-count indictment

against Scott. Scott then pleaded guilty to threatening a federal official in violation

of 18 U.S.C. § 115(a)(1)(B) and filed a “factual resume” admitting the elements of

the offense.

      After determining the guidelines range and applying the § 3553(a) factors,

the district court imposed a 120-month sentence. Scott appealed and we vacated

the sentence because we concluded that the district court had misinterpreted the

guidelines, calculating a range of 70 to 87 months. See Scott, 441 F.3d at 1325.

We determined that the correct guidelines range was 37 to 46 months. See id. at

1329–30. Because the “step from 46 months to 120 months is significantly greater

than the step from 87 months to 120 months”, we were reluctant to “say that the

court, had it known of the appropriate range, would have sentenced Scott to the

same severe sentence.” Id. at 1330. Accordingly, we vacated the sentence and

remanded for resentencing. Id.

      On remand, the district court once again imposed a 120-month sentence,



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incorporating its application of the § 3553(a) factors from the first sentence

hearing. The court emphasized the severity of Scott’s offense, characterizing it as

“an attack on the judicial system, which is the very glue that holds this civilized

society together.” The district court also cited the “general goals of punishment”

and of deterrence as rationales for the sentence.

      On appeal, Scott argues that his sentence is procedurally unreasonable

because: (1) the district court, whose primary justification for the sentence was to

deter others from committing similar crimes, did not cite any authority

demonstrating that his lengthy sentence would have a deterrent effect on others;

(2) the district court on remand failed to meaningfully consider the corrected

guideline range; (3) the district court’s act of resentencing Scott to the same prison

term does not promote respect for the law because it sends the message that a

successful appeal “is a meaningless endeavor”; and (4) the district court failed to

consider Scott’s “traumatic” personal history and compared Scott to non-offenders

rather than to similarly-situated defendants.

      Scott also asserts that his sentence is substantively unreasonable because:

(1) the large deviation from the guideline range was not supported by compelling

circumstances as the threats against the judge were largely preposterous and were

the product of his “disturbed mind”; (2) specific deterrence of Scott would be



                                           4
better provided through mental health services; and (3) we have reversed below-

guideline sentences where the variance was similar to the one in this case and

should attempt to have “even-handed standards of reasonableness” for upward and

downward variances.

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

Our review for reasonableness is deferential. United States v. Thomas, 446 F.3d

1348, 1351 (11th Cir. 2006). Unreasonableness may be procedural, such as occurs

when the procedure the district court used does not meet the requirements found in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), or it may be

substantive in nature. See United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th

Cir. 2006). After Booker, a district court, in determining a reasonable sentence,

must consider the correctly calculated advisory guideline range and the factors set

forth in 18 U.S.C. § 3553(a). United States v. Valnor, 451 F.3d 744, 749 (11th Cir.

2006). After correctly calculating the advisory guideline range, the district court

may impose a more severe or lenient sentence, so long as the resulting sentence is

reasonable. Id. at 750.

      In reviewing a sentence for reasonableness, we consider the factors outlined

in § 3553(a) and the district court’s reasons for imposing a particular sentence.



                                          5
United States v. Williams, 456 F.3d 1353, 1360–61 (11th Cir. 2006), cert.

dismissed, 127 S. Ct. 3040 (2007). The § 3553(a) factors include: (1) the nature

and circumstances of the offense and the history and characteristics of the

defendant; (2) the need for the sentence (A) to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense, (B) to afford adequate deterrence to criminal conduct, (C) to protect the

public from further crimes of the defendant, and (D) to provide the defendant with

needed educational or vocational training or medical care; (3) the kinds of

sentences available; (4) the sentencing guidelines range; (5) pertinent policy

statements of the Sentencing Commission; (6) the need to avoid unwarranted

sentencing disparities; (7) and the need to provide restitution to victims. See 18

U.S.C. § 3553(a)(1)-(7). “[T]here 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).

         Here, the sentence imposed by the district court was procedurally

reasonable. At the initial sentence hearing, the district court discussed the §

3553(a) factors at great length, and it incorporated that analysis during the sentence



                                           6
hearing following remand. At the second sentence hearing, the district court also

considered the correct guidelines range of 37 to 46 months, as well as the advisory

nature of the guidelines. Additionally, the court acknowledged Scott’s

disadvantaged and troublesome upbringing, but found that his “violent past

behavior” and inability to begin “the process of disengaging from his previously

learned inappropriate social behavior” weighed in favor of the statutory maximum

sentence. Moreover, the court stated that the sentence was appropriate given the

extremely serious nature of the offense and the need to protect the public from

Scott. Further, the district court noted that the sentence would deter others from

committing similar crimes. The district court was not required, as Scott argues, to

cite authority for the proposition that lengthy sentences deter criminal conduct; it is

enough that deterrence is one of the § 3553(a) factors. See 18 U.S.C. §

3553(a)(2)(B). Finally, the district court       observed that Scott should be able to

obtain the substance abuse treatment and mental health care that he requires while

serving his sentence.

      The district court’s decision to impose the same sentence on remand does

not, as Scott suggests, send the message that a successful appeal “is a meaningless

endeavor.” At the outset of the second sentence hearing, the district court

acknowledged the correct guidelines range and then proceeded with its discussion



                                             7
of the § 3553(a) factors. Furthermore, we explicitly allowed for the imposition of

the same sentence after remand in our prior published decision in this case. See

Scott, 441 F.3d at 1330 (“In vacating the sentence and remanding for a new

sentence proceeding, we do not mean to imply that the district court on remand

cannot reach the same sentence as it did before, provided that it corrects the one

error identified in this opinion.”). Indeed, we also noted “that if it had wished to

do so the district court could have stated that it would reach the same sentence

regardless of how the disputed [guidelines] issue was decided. A statement like

that would have convinced us the error was harmless.” Id. (citing United States v.

Williams, 431 F.3d 767, 775 (11th Cir. 2005) (Carnes, J., concurring)); see also

United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006) (inviting district

courts to indicate that they would reach the same sentence even if a guidelines

calculation were incorrect if the court conducts an appropriate analysis of the §

3553(a) factors and noting such sentences would be upheld if on review, the

sentence is reasonable). Because the district court carefully considered the correct

advisory guideline range and the § 3553(a) factors in reaching its decision, the

sentence is procedurally reasonable.

      The 120-month sentence is also substantively reasonable. Scott’s offense

was particularly serious. He threatened to kill a federal judge and suggested that



                                           8
he would employ explosives to accomplish the task. He also threatened to kidnap

the Judge’s children and included a suspicious substance with the threatening

letter. These threats cannot be dismissed as “jailhouse banter” or merely the

inconsequential product of a disturbed mind. They were specific, and when

questioned by federal agents Scott did not disavow the threats. Instead, he gave a

cryptic response to the agents’ questions and smiled at them.

      Scott’s argument that future criminal conduct by him would be better

prevented by treatment than incarceration is unpersuasive. It is not an “either or”

proposition. As the district court noted during the sentence hearing, the Bureau of

Prisons should provide treatment options to address his substance abuse problem

and mental health issues. Scott can avail himself of these services during the 120-

month period of incarceration and afterward while on supervised release.

      Finally, Scott’s argument that we have reversed as unreasonable the

imposition of below-guidelines sentences with variances smaller than the upward

variance in this case misses the point of individualized sentences. At each sentence

proceeding, the district court must analyze the § 3553(a) factors with regard to a

defendant’s own characteristics and the specific crime involved. Neither Booker

nor any other decision require that we compare the variance in this case to

variances in cases involving different crimes and defendants with different



                                          9
characteristics. The aim of the sentencing guidelines is to produce consistency

across sentences for similar crimes committed by defendants with similar

characteristics. See Booker, 543 U.S. at 254 (observing that “the sentencing

statute’s basic aim [is] ensuring similar sentences for those who have committed

similar crimes in similar ways”). That we have reversed other sentences for

dissimilar crimes committed by dissimilar defendants is of no moment.

      AFFIRMED.




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