United States v. Leonard Charles Sapp ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14394
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARD CHARLES SAPP,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60174-WPD-1
____________________
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2 Opinion of the Court 21-14394
Before ROSENBAUM, JILL PRYOR, and MARCUS, Circuit Judges.
PER CURIAM:
Leonard Sapp appeals his conviction for possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and
his 192-month sentence. On appeal, Sapp argues that: (1) the gov-
ernment committed prosecutorial misconduct in its closing argu-
ment because it improperly shifted the burden of proof to him; (2)
the district court abused its discretion in denying his motion for a
new trial because of the government’s delayed disclosure and fail-
ure to disclose Brady 1 evidence before trial; and (3) his 192-month
sentence was procedurally and substantively unreasonable. After
thorough review, we affirm.
I.
The relevant facts are these. On May 16, 2021, Fort Lauder-
dale Police Department (“FLPD”) officers responded to a report of
a shooting in progress. About five minutes after the shooting, a
witness saw Sapp get into a black Cadillac. The witness told the
driver of the black Cadillac that the police were on their way.
When the officers arrived, the black Cadillac was pulling away with
multiple bullet holes in it. Some officers followed the black Cadil-
lac while others stayed at the scene. Officers followed the black
Cadillac for about eight minutes, until it arrived at Sapp’s home in
1 Brady v. Maryland, 373 U.S. 83 (1963).
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21-14394 Opinion of the Court 3
Ft. Lauderdale. The car pulled into the front swale and Sapp im-
mediately exited from the front passenger seat. Officers hand-
cuffed Sapp and began to pat him down, at which point they found
a 9mm pistol in his front waistband.
On June 22, 2021, a federal grand jury indicted Sapp for pos-
session of a firearm by a convicted felon. In July, the government
filed a response to the standing discovery order, attaching Sapp’s
statements, criminal history, and police reports. In the response, it
noted that records and tangible objects within its possession and
material to the defense could be inspected at the U.S. Attorney’s
office and that Sapp should set up a date to examine evidence. It
said that the attachments to its discovery response were not all the
records the government intended to introduce at trial. It added
that there was body camera footage and that it would make an ad-
ditional discovery production with the footage upon receipt.
About a week before trial, Sapp received additional materials from
the government, including crime scene photos and the body cam-
era footage. Then, a few days before trial, Sapp received more ma-
terials, including a crime scene report.
At trial, Sapp argued to the jury that he was not guilty based
on the affirmative defense of justification, explaining that on the
night of the shooting, two men had approached Sapp, attempted
to rob him, and shot him in the hand, after which he wrestled a gun
from them and drove off. The court granted Sapp’s request that
the court give the Eleventh Circuit Pattern Instruction on the
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4 Opinion of the Court 21-14394
justification defense. 2 In its rebuttal during closing arguments, the
government told the jury that the defendant had the burden of
proving his affirmative defense of justification, and that the defend-
ant had the ability, through the issuance of subpoenas, to obtain
evidence he thought relevant to meeting this burden. After delib-
erations, the jury found Sapp guilty, and, later, the district court
2 The court instructed the jury:
Now, the defendant claims that if he committed the acts charged in
the indictment, he did so only because he was forced to commit the
crime.
If you conclude that the Government has proved beyond a reasonable
doubt that the defendant committed the crime as charged, you must
then consider whether the defendant should nevertheless be found not
guilty because his actions were justified by duress or coercion.
To excuse a criminal act, the defendant must prove by a preponder-
ance of the evidence, first, that there was an unlawful and present, im-
mediate and impending threat of death or serious bodily harm to the
defendant or another.
Second, that the defendant’s own negligent or reckless conduct did not
create a situation where the defendant would be forced to engage in
that crime.
Third, that the defendant had no reasonable, legal alternative for vio-
lating the law, and, fourth, that avoiding the threatened harm caused
the criminal action. A preponderance of the evidence is enough evi-
dence to persuade you that the defendant’s claim is more likely true
than not true.
If you find that the defendant has proven each of these elements by a
preponderance of the evidence, you must find the defendant not
guilty.
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imposed a 192-month sentence, which was at the low end of the
188- to 235-month guidelines range.
This timely appeal follows.
II.
When a defendant objects to a prosecutor’s comments dur-
ing closing argument, we review claims of prosecutorial miscon-
duct de novo. United States v. Schmitz, 634 F.3d 1247, 1266–67
(11th Cir. 2011). We also review alleged Brady violations de novo.
United States v. Stein, 846 F.3d 1135, 1145 (11th Cir. 2017). How-
ever, we review the denial of a motion for a new trial for abuse of
discretion. United States v. Scrushy, 721 F.3d 1288, 1303 (11th Cir.
2013); United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).
A court abuses its discretion by misapplying the law or making
clearly erroneous factual findings. Scrushy, 721 F.3d at 1303.
We review the sentence a district court imposes for “reason-
ableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quotations omitted). But if a party does not make an argu-
ment of procedural reasonableness in the district court, we review
only for plain error. United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014). To establish plain error, the defendant must
show (1) an error, (2) that is plain, and (3) that affected his substan-
tial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.
2007). If the defendant satisfies these conditions, we may exercise
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our discretion to recognize the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.III.
First, we find no merit to Sapp’s claim that the government
committed prosecutorial misconduct in its closing argument.
We’ve long held that improper assertions meant to mislead the
jury are forbidden in closing arguments. United States v. Lopez,
590 F.3d 1238, 1256 (11th Cir. 2009). To establish prosecutorial
misconduct, the remarks (1) must be improper and (2) must preju-
dicially affect the substantial rights of the defendant. Id. A defend-
ant’s substantial rights are affected when a reasonable probability
arises that, but for the remarks, the outcome of the trial would have
been different. Id.We consider four factors in determining whether a prosecu-
tor’s conduct had a reasonable probability of changing a trial’s out-
come: (1) whether the challenged comments had a tendency to
mislead the jury or prejudice the defendant; (2) whether the com-
ments were isolated or extensive; (3) whether the comments were
deliberate or accidental; and (4) the strength of the proof establish-
ing the guilt of the defendant. Id. When the record contains suffi-
cient independent evidence of guilt, any error is harmless. Id. We
consider prosecutorial misconduct in the context of the entire trial,
along with any curative instruction. Id. Improper statements can
be cured by a court’s instruction that “only the evidence in the case
be considered.” Id. (quotations omitted). If the court gives a cura-
tive instruction, we will reverse “only if the evidence is so
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21-14394 Opinion of the Court 7
prejudicial as to be incurable by that measure.” Id. We presume
the jury followed the district court’s curative instruction. Id.Prosecutors cannot make burden-shifting arguments that
suggest the defendant must produce evidence or prove his inno-
cence. United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992).
But while a defendant cannot be obligated to prove his innocence
to a jury, he can be required to prove affirmative defenses. United
States v. Blankenship, 382 F.3d 1110, 1127 (11th Cir. 2004). Also, a
prosecutor may note that a defendant has the same subpoena pow-
ers as the government. Schmitz, 634 F.3d at 1267. So, a prosecutor
may comment on defense counsel’s failure to counter or explain
the government’s evidence or direct the jury’s attention to a lack
of evidence supporting the defense’s theory of the case. See United
States v. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010);
United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998).
And, under the doctrine of fair response, a prosecutor may make a
rebuttal to the arguments raised by defense counsel in closing.
United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014).
The Eleventh Circuit Pattern Jury Instruction for an affirm-
ative defense of justification directs that if the government proved
beyond a reasonable doubt that the defendant committed the
crime, the defendant must prove his actions were justified by a pre-
ponderance of evidence. Eleventh Circuit Pattern Jury Instruction
S16 (2016); United States v. Deleveaux, 205 F.3d 1292, 1297–99
(11th Cir. 2000). Specifically, the defendant must prove by a pre-
ponderance that: (1) there was an immediate threat of death or
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serious bodily harm, (2) the defendant’s own negligence did not
create the situation, (3) the defendant had no reasonable legal al-
ternative to violating the law, and (4) avoiding the harm caused the
criminal action. Eleventh Circuit Pattern Jury Instruction S16
(2016); Deleveaux, 205 F.3d at 1297 (“[A] a defendant must show
these four elements to establish this defense.”). This defense is
available only in extraordinary circumstances. United States v.
Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).
Here, Sapp challenges statements the government made in
its rebuttal during closing arguments. Among other things, the
government argued that while it had the burden of proving that
Sapp possessed the firearm, Sapp bore “the burden of proving his
justification defense. . . . [He has] subpoena powers. [He] can col-
lect evidence. [He] can test evidence.” Sapp claims that these state-
ments and others like them in the government’s rebuttal unconsti-
tutionally shifted the burden of proof by claiming he had the power
to subpoena evidence to support his justification defense when the
government delayed giving him certain evidence.
However, the government did not commit prosecutorial
misconduct because the government’s statements during its rebut-
tal were not improper. For starters, a defendant can be required to
prove any affirmative defenses he may have, which in this instance
was Sapp’s justification defense. Blankenship, 382 F.3d at 1127.
Thus, it was permissible for the government to say that once it had
proven Sapp possessed the firearm, Sapp had the burden of proving
his affirmative defense of justification because the law requires the
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defendant to prove a justification defense by a preponderance of
the evidence. Deleveaux, 205 F.3d at 1299.
As for Sapp’s argument that the government improperly
stated he had access to evidence when he received it late, we disa-
gree. Under our case law, the government was allowed to say that
Sapp could have subpoenaed evidence and tested it to see if it sup-
ported his defense. Schmitz, 634 F.3d at 1267. This is particularly
true since the government’s argument was made in response to
Sapp’s closing argument that the government conducted a poor in-
vestigation. Reeves, 742 F.3d at 505.
Moreover, and independently, we cannot say that the gov-
ernment’s statements caused prejudice. The district court properly
instructed the jury that the law to be applied in the case was only
what was in the court’s instructions, which included the court’s
previous instructions on the burdens of proof. The court also gave
a curative instruction to the jury that it should rely only on the ev-
idence presented at trial and any reasonable inferences drawn from
the evidence, rather than the arguments of the attorneys. Lopez,
590 F.3d at 1256. There is no evidence the statements were so prej-
udicial that they were incurable. Id. As we’ll explain below, over-
whelming evidence was presented to the jury that Sapp possessed
a firearm, and there was scant evidence of his justification defense.
Accordingly, we affirm as to this issue.
IV.
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Next, we are unconvinced by Sapp’s argument that the dis-
trict court abused its discretion in denying his motion for a new
trial. A court may vacate a judgment and grant a new trial if the
interest of justice so requires. Fed. R. Crim. P. 33(a). Motions for
a new trial are disfavored and granted with great caution. Scrushy,
721 F.3d at 1304.
It is well established that the government’s suppression of
evidence favorable to an accused and material to his guilt or to pun-
ishment violates his due process rights, regardless of the good or
bad faith of the government. Brady, 373 U.S. at 87. To this end,
prosecutors have a duty to learn of favorable evidence known to
others acting on the government’s behalf, including police investi-
gators. Kyles v. Whitley, 514 U.S. 419, 437 (1995). To obtain a new
trial based on a Brady violation, the defendant must show that (1)
the government possessed evidence favorable to him; (2) he did not
possess the evidence and could not obtain it with reasonable dili-
gence; (3) the government suppressed the evidence; and (4) if it had
been disclosed, there is a reasonable probability that it would have
changed the trial’s outcome. Vallejo, 297 F.3d at 1164. “[T]he bur-
den to show a Brady violation lies with the defendant, not the gov-
ernment.” Stein, 846 F.3d at 1145.
As for the first Brady prong, evidence is favorable to the de-
fendant if it is exculpatory or impeaching. Id. As for the second
prong, the government is not required to give a defendant infor-
mation that he could obtain himself with reasonable diligence, like
a public record. Id. As for the third prong, delayed disclosure may
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qualify as a Brady violation “but only if the defendant can show
prejudice, e.g., the material came so late that it could not be effec-
tively used.” United States v. Beale, 921 F.2d 1412, 1426 (11th Cir.
1991). And as for the fourth prong, a reasonable probability is one
that undermines confidence in the outcome. United States v.
Scheer, 168 F.3d 445, 451–52 (11th Cir. 1999). A defendant need
not show that disclosure of the suppressed evidence would have
resulted in his acquittal or that there was insufficient evidence to
convict in light of the suppressed evidence. Id. at 452. Evidence is
viewed collectively, not item by item. Id.Here, Sapp says that about a week before trial, he received
materials from the government that included crime scene photos,
a statement to Sapp’s probation officer, body camera footage of in-
terviews with witnesses reporting that the car officers chased was
not involved in the shooting, a report finding a fingerprint from the
black car did not match Sapp’s, a detective’s supplemental report,
an expert report comparing cartridges, Sapp’s hospital records, and
the number of bullet holes in the car. Then, a few days before trial,
Sapp received a crime scene report, DNA blood swabs, cartridges,
Sapp’s clothes, an unidentified cell phone, unidentified Hyundai
keys, the number of cartridges at the scene, the direction of the
bullets, and cartridges from two locations from the gun Sapp took.
Sapp argues that this evidence -- if he’d received it sooner --
could have supported his justification defense, which was based on
the idea that there had been another shooter during the shootout,
so he was justified in taking the person’s gun and fleeing the scene.
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Specifically, Sapp notes that some shell casings were of a different
caliber from the gun at issue, which demonstrated there may have
been a second shooter; that the DNA blood swabs showed the
blood trail may have resulted from more than one person; that un-
identified keys and phone were found that were not Sapp’s; that an
expert had established the direction of travel from bullet holes; that
the ammunition by the car was different from that on the sidewalk;
that Sapp had told his probation officer he wrestled the gun away
from a robber; and that Sapp’s clothing was kept but not tested. He
adds that the evidence showed the firearm found on him was used
at two locations, supporting the idea that it was used to shoot him.
But even if we assume that Sapp satisfied the first prong of
the Brady analysis -- that the government possessed evidence favor-
able to him -- he has not satisfied all of the Brady requirements. As
for the second prong -- that he did not possess the evidence and
could not have obtained it with reasonable diligence -- some of the
evidence actually could have been obtained with reasonable dili-
gence. Vallejo, 297 F.3d at 1164. Notably, by the detention hear-
ing, Sapp knew there was a blood trail at the scene, and it was un-
clear if the blood was his. Further, the government’s discovery re-
sponse provided he could inspect physical materials with an ap-
pointment. So, with diligence, Sapp could have obtained evidence
for trial about the testing of the blood swabs. In addition, Sapp was
aware of the statements he’d made to his probation officer about
the robbery -- Sapp’s counsel even discussed his statement to his
probation officer at the detention hearing -- and he knew about his
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own hospital visit, so he could have requested both sets of records
himself.
As for the remaining evidence that he received days to a
week before trial -- the body camera footage, crime scene photo-
graphs, and expert reports -- he still cannot meet the third prong of
the Brady analysis, which asks whether the government’s delayed
disclosure of evidence caused prejudice. As the record reflects,
much of this evidence came out at trial. Sapp called his longtime
friend Tavaris Jacobs -- a witness who had called 911 after hearing
gunshots at the scene -- to testify about Jacobs’s statement to police
that they had the wrong person, which had been caught on the
body camera video. The government itself presented body camera
video showing a different witness stating that police had the wrong
guy. In addition, Sapp cross-examined Jorge Bello, a firearm expert
from the Broward County Sheriff’s Office crime lab, about the lo-
cation of shell casings showing that the gun found on Sapp had
been shot in two places and that some shell casings were a different
caliber from the gun at issue. And Sapp questioned an expert wit-
ness about a fingerprint on the car that was not Sapp’s.
The record further indicates that Sapp himself did not think
the late disclosure would cause prejudice. A few days before trial,
he acknowledged the recently disclosed Brady material, made no
motion to continue, and said he could overcome the delayed dis-
closures. In so doing, he mentioned the evidence he’d recently re-
ceived, including the body camera footage, statement to his proba-
tion officer, crime scene photos, his medical records, and the expert
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reports and material in them. Then, at trial, Sapp expressly said the
late disclosure of the reports was fine. On this record, Sapp has not
shown that the government’s delayed disclosure of evidence
caused him prejudice at trial.
Moreover, as for the final prong of the Brady analysis, Sapp
has not established a reasonable probability that the earlier disclo-
sure of any of these materials would have changed the outcome at
trial. Vallejo, 297 F.3d at 1164. Sapp claims that calling experts and
testing the evidence at issue would have supported his justification
defense that he took the gun from an assailant during a shootout.
But even if that were true, the evidence would not have changed
the fundamental problem with his justification defense -- that he
possessed the firearm after the shootout while there was no immi-
nent danger.
Indeed, to make out a justification defense, Sapp had to
show a present, immediate and impending threat of death and se-
rious bodily injury and that he had no reasonable legal alternative
for violating the law. Deleveaux, 205 F.3d at 1297. However, as
the record reveals, five minutes after the shooting, witness Jacobs
saw Sapp return to the scene, get into another friend’s car, and flee
from police, even upon learning that the police were on the way.
Sapp then held onto the gun eight minutes after officers began fol-
lowing him in the car. Sapp could have disposed of the gun in the
time between when the shooting ended and when he drove away
from police. Or he could have waited for police and given them
the gun. But he did not do any of those things. Once Sapp got in
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the car, there was no immediate danger, and there had been a legal
alternative to continuing to possess the gun. Id. In other words,
whether more evidence had been introduced to suggest that Sapp
had been robbed and another person had been shot at the scene
were irrelevant to whether an emergency justified Sapp’s posses-
sion of the firearm when he returned to the scene, got into a
friend’s car, declined to wait for police, and traveled, at a normal
speed, to his residence.
In short, even if the belatedly-disclosed evidence may have
supported Sapp’s justification defense, his defense was not preju-
diced since the evidence still would have shown that he possessed
the gun after the threat of imminent harm had passed. Thus, we
affirm as to this issue as well.
V.
Finally, we are unpersuaded by Sapp’s claim that his sen-
tence was procedurally and substantively unreasonable. In review-
ing sentences for reasonableness, we perform two steps. Pugh, 515
F.3d at 1190. First, we “‘ensure that the district court committed
no significant procedural error, such as failing to calculate (or im-
properly 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 de-
viation from the Guidelines range.’” Id. (quoting Gall v. United
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States, 552 U.S. 38, 51 (2007)). 3 The district court is not required to
state on the record that it has explicitly considered each of the 18
U.S.C. § 3553(a) factors if the record reflects the district court’s con-
sideration of the § 3553(a) factors. United States v. Cabezas-Mon-
tano, 949 F.3d 567, 609 (11th Cir. 2020). Further, a failure to discuss
mitigating evidence does not indicate that the court “erroneously
‘ignored’ or failed to consider this evidence.” United States v.
Amedeo, 487 F.3d 823, 833 (11th Cir. 2007).
If we conclude that the district court did not procedurally
err, we consider the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard,” based on the “to-
tality of the circumstances.” Pugh, 515 F.3d at 1190 (quotations
omitted). A court may abuse its discretion if it (1) fails to consider
relevant factors that are due significant weight, (2) gives an im-
proper or irrelevant factor significant weight, or (3) commits a clear
error of judgment by balancing a proper factor unreasonably.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
3 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 imposed to reflect the seriousness of the offense, to promote re-
spect for the law, and to provide just punishment for the offense; (3) the need
for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or voca-
tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
tencing 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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Also, a court’s unjustified reliance on any one § 3553(a) factor may
be a symptom of an unreasonable sentence. United States v. Crisp,
454 F.3d 1285, 1292 (11th Cir. 2006).
We have “underscored” that we must give “due deference”
to the district court to consider and weigh the proper sentencing
factors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir.
2018) (quotations omitted). The district court does not have to
give all the factors equal weight and is given discretion to attach
great weight to one factor over another. United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). We will vacate
a sentence only if we are “left with the definite and firm conviction
that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of
the case.” Irey, 612 F.3d at 1190 (quotations omitted).
The Sentencing Guidelines provide that the court “may de-
part downward” from the guideline range if “the defendant com-
mitted the offense because of serious coercion, blackmail or duress,
under circumstances not amounting to a complete defense.”
U.S.S.G. § 5K2.12. The extent of the decrease depends on the rea-
sonableness of the defendant’s conduct. Id. Coercion is sufficient
if it involves the threat of physical injury. Id.
We lack jurisdiction to review a discretionary decision by
the district court to not apply a downward departure, unless the
district court incorrectly believed it lacked authority to apply the
departure. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
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18 Opinion of the Court 21-14394
2006). We assume the district court knew it had the authority to
depart downward unless the record indicates otherwise. Id.We do not apply a presumption of reasonableness to sen-
tences within the guideline range, but we ordinarily expect these
sentences to be reasonable. United States v. Stanley, 739 F.3d 633,
656 (11th Cir. 2014). A sentence imposed well below the statutory
maximum penalty is also an indicator of reasonableness. Id. The
party challenging the sentence bears the burden of establishing that
it is unreasonable based on the record and the § 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
As an initial matter, Sapp did not raise a procedural objection
to his sentence or argue for a departure under U.S.S.G. § 5K2.12,
so we review his argument about procedural reasonableness for
plain error, and we can find none. For starters, even if Sapp had
argued for a downward departure under U.S.S.G. § 5K2.12, we
have no jurisdiction to review a discretionary decision not to apply
a downward departure, unless the district court incorrectly be-
lieved it lacked authority to do so. Dudley, 463 F.3d at 1228. There
is nothing in the record that suggests that the district court did not
think it could depart downward. It said it would consider the cir-
cumstances of offense outside of the presentence investigation re-
port (“PSI”), and when asked to consider the justification defense,
it said it would consider evidence presented at trial and the de-
fense’s arguments.
The district court also did not procedurally err by disregard-
ing the mitigating circumstances of the offense when considering
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the § 3553(a) factors. The record shows the district court consid-
ered mitigating circumstances, including Sapp’s age, and the court
said it considered the statements of the parties and the § 3553(a)
factors, which is sufficient. Cabezas-Montano, 949 F.3d at 609.
And, as we’ve noted, the district court heard mitigating arguments
from defense counsel about the justification defense, observed that
it was at the trial and knew of the justification argument, and said
it would consider evidence presented at trial and the defense’s ar-
guments, including circumstances of the offense outside the PSI.
In any event, the district court is not required to discuss mitigating
evidence expressly to show it considered it. Amedeo, 487 F.3d at
833. On this record, the district court did not plainly err by failing
to apply a downward departure or failing to consider the mitigating
circumstances of the offense.
Nor has Sapp shown that his sentence is substantively un-
reasonable. Under our case law, the court has broad discretion
when weighing the § 3553(a) factors and may weigh one factor
more heavily than another. Rosales-Bruno, 789 F.3d at 1254. In
this case, the district court not only considered arguments from de-
fense counsel about the justification defense, but also considered
other mitigating factors and attached “great weight” to Sapp’s age.
Further, evidence presented in the PSI indicated that Sapp had an
extensive criminal history, with several offenses involving violent
crimes, including strong-arm robbery and robbery with a deadly
weapon. Sapp was also previously convicted of felon in possession
twice. And the instant offense involved a shootout. The court
USCA11 Case: 21-14394 Document: 50-1 Date Filed: 02/22/2023 Page: 20 of 20
20 Opinion of the Court 21-14394
permissibly weighed this criminal history against Sapp’s mitigating
evidence.
It’s also worth noting that the district court imposed a sen-
tence of 192 months, which was at the low end of the guideline
range and below the statutory maximum sentence of life imprison-
ment, both of which are factors that suggest the sentence was rea-
sonable. Stanley, 739 F.3d at 656. The sentence was within 4
months of Sapp’s requested sentence of 188 months and only
slightly above the statutory minimum of 180 months. Accordingly,
because the district court did not abuse its discretion in weighing
the § 3553(a) factors, the sentence was substantively reasonable.
AFFIRMED.