USA v. David Berry

Filing

Opinion issued by court as to Appellant David Berry in 12-15583, 13-10161. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. (Opinion corrected 9/19/2013) [12-15583, 13-10161]--[Edited 09/19/2013 by JRP]

Case: 12-15583

Date Filed: 09/19/2013

Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15583; 13-10161
Non-Argument Calendar
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D.C. Docket Nos. 0:08-cr-60065-WPD-5, 0:08-cr-60070-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BERRY,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(September 19, 2013)
Before DUBINA, HULL and BLACK, Circuit Judges.
PER CURIAM:

Case: 12-15583

Date Filed: 09/19/2013

Page: 2 of 3

In this consolidated appeal,1 David A. Berry argues his 18-month sentence
stemming from violations of his supervised release is substantively unreasonable.
Berry claims the severity of his sentence does not promote rehabilitation and does
not achieve the goals of sentencing outlined in 18 U.S.C. § 3553(a). After review, 2
we affirm the district court’s sentence.
A sentence is substantively unreasonable if, considering the totality of the
circumstances, the court weighed the § 3553(a) factors unreasonably and imposed
a sentence that did not achieve the purposes of sentencing outlined in § 3553(a).
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The party
challenging the sentence bears the burden of proving the sentence enforced was
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Berry argues that the district court failed to adequately consider the nature
and circumstances of the offense as well as the history and characteristics of the
defendant when imposing his sentence. See 18 U.S.C. § 3553(a)(1). Berry’s
violations resulted in a Sentencing Guidelines range of 12-18 months with a
statutory maximum of 24 months. Sentences within the applicable Guidelines
range are ordinarily considered reasonable. Talley, 431 F.3d at 788. Further, a
1

Berry pled guilty to one count from two separate indictments. Those separate cases are
now consolidated into this appeal.
2

We review a district court’s revocation of supervised release for abuse of discretion; we
review the sentence imposed following the revocation of supervised release for reasonableness.
United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).
2

Case: 12-15583

Date Filed: 09/19/2013

Page: 3 of 3

district judge is not required to discuss all of the § 3553(a) factors when imposing a
sentence. Id. at 786. Nevertheless, at Berry’s sentencing hearing, the district judge
explicitly stated that Berry’s family situation and cooperation with law
enforcement were the primary reasons the statutory maximum sentence was not
imposed. The record shows the district court was aware of the § 3553(a) factors
and considered Berry’s “characteristics” in fashioning his sentence. Moreover,
nothing in the record intimates that the sentence was anything but reasonable.
Berry has failed to meet his burden of proof. Accordingly, we affirm Berry’s
sentence.
AFFIRMED.

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