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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12407
Non-Argument Calendar
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D.C. Docket No. 2:17-cr-00287-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEQUARRIEN JEVANTE LEE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 18, 2019)
Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
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Dequarrien Lee appeals his 96-month sentence for unlawfully taking or
carrying away firearms from the premises of a firearms dealer, 18 U.S.C. § 922(u)
(Count One), and possessing stolen firearms, 18 U.S.C. § 922(j) (Count Two). Lee
argues that his 96-month total sentence was substantively and procedurally
unreasonable because it was greater than necessary to serve as effective
punishment, the district court did not provide adequate justification to support the
degree of upward variance, it failed to consider the § 3553(a) factors, and it failed
to avoid unwarranted sentencing disparities between Lee and his codefendant,
Devontae Perkins.
In analyzing whether a sentence is reasonable, we first determine whether
the district court committed any significant procedural error, and then, if the
sentencing decision was procedurally sound, we determine whether the sentence
was substantively unreasonable. Gall v. United States,
552 U.S. 38, 51 (2007).
When reviewing for procedural reasonableness, we ordinarily consider legal issues
de novo, review factual findings for clear error, and apply the guidelines to the
facts with due deference, which is akin to clear error review. United States v
Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010). However, failure to preserve an
objection for procedural reasonableness at sentencing means that we may only
review for plain error affecting substantial rights. United States v. Vandergrift,
754
F.3d 1303, 1307 (11th Cir. 2014). The objection must apprise the trial court and
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the opposing party of the specific grounds on which appellate relief will be sought.
United States v. Carpenter,
803 F.3d 1224, 1237–38 (11th Cir. 2015). “A
sweeping, general objection is insufficient to preserve specific sentencing issues
for review.”
Id. at 1238.
Under plain error review, we may, at our discretion, correct an error where
(1) an error occurred, (2) the error was plain, and (3) the error affects substantial
rights. United States v. Olano,
507 U.S. 725, 732-36 (1993). When these factors
are met, we may exercise discretion and correct the error if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 736. To
assess procedural reasonableness, we determine whether the district court
committed any significant procedural error by, among other things, failing to
consider the § 3553(a) factors. United States v. Cubero,
754 F.3d 888, 892 (11th
Cir. 2014). We have held that a district court is not required to state on the record
that it has explicitly considered or discussed each § 3553(a) factor; rather, the
district court’s acknowledgment that it considered the § 3553(a) factors and the
defendant’s arguments is sufficient. United States v. Docampo,
573 F.3d 1091,
1100 (11th Cir. 2009). Even when the district court failed to “explicitly articulate
that it had considered the § 3553(a) factors,” but it did “consider a number of the
sentencing factors,” we have upheld a sentence. United States v. Dorman,
488
F.3d 936, 944 (11th Cir. 2008). A sentencing judge “should set forth enough to
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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 (2007), and “must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote the perception of
fair sentencing.”
Gall, 552 U.S. at 50.
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Osorio-Moreno,
814 F.3d 1282, 1287 (11th Cir. 2016).
“The party challenging a sentence has the burden of showing that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and the substantial
deference afforded sentencing courts.” United States v. Rosales-Bruno,
789 F.3d
1249, 1256 (11th Cir. 2015).
The district court must impose a sentence that is “sufficient, but not greater
than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), and
shall consider the need to: reflect the seriousness of the offense, promote respect
for the law, and provide just punishment for the offense; deter criminal conduct;
protect the public from the defendant’s future criminal conduct; and provide the
defendant with needed education or vocational training, medical care, or other
correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense and the
history and characteristics of the defendant.
Id. at (a)(1).
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The court must also consider “the need to avoid unwarranted sentence
disparities between defendants with similar records who have been found guilty of
similar conduct.” § 3553(a)(6). However, we “will not find a sentence disparity
among codefendants to be unwarranted when they are not similarly situated,”
United States v. Holt,
777 F.3d 1234, 1270 (11th Cir. 2015), because “[a] well-
founded claim of disparity . . . assumes that apples are being compared to apples.”
Docampo, 573 F.3d at 1101. We have held that defendants who have “been
convicted of less serious offenses, lacked extensive criminal histories, or [] pleaded
guilty,” are not similarly situated, and that the district court unreasonably erred in
failing to distinguish those defendants. See United States v. Jayyousi,
657 F.3d
1085, 1118 (11th Cir. 2011).
We will not second guess the weight that the district court gave to a
§ 3553(a) factor as long as the sentence is reasonable in light of all the
circumstances. United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008). The
district court is permitted to attach great weight to one § 3553(a) factor over others.
United States v. Overstreet,
713 F.3d 627, 638 (2013). A district court can abuse
its discretion when it “(1) fails to afford consideration to relevant factors that were
due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper factors.”
United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A district
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court commits a “clear error of judgment” when it unreasonably considers the
proper factors.
Id. We have affirmed a court’s upward variance based on the
court’s finding that the defendant’s “criminal history category of I understated the
seriousness of his criminal history,” United States v. Moran,
778 F.3d 942, 983
(11th Cir. 2015), including in an instance when the criminal history at issue was
not part of a conviction, but rather, was “germane to several § 3553(a) factors,
including the history and characteristics of the defendant,”
Overstreet, 713 F.3d
at 637-38.
We will only vacate a sentence 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.”
Id. at 1190 (quoting
Pugh,
515 F.3d at 1191). “Although there is no proportionality principle in sentencing, a
major variance does require a more significant justification than a minor one—the
requirement is that the justification be ‘sufficiently compelling to support the
degree of the variance.’”
Id. at 1196 (quoting
Gall, 552 U.S. at 50). The
sentencing court may base its finding of fact on facts admitted by a defendant’s
plea of guilty, undisputed statements in the PSI, or evidence presented either at
trial or at the sentencing hearing. United States v. Wilson,
884 F.2d 1355, 1356
(11th Cir. 1989).
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Here, Lee has not satisfied his burden to prove that his sentence was
procedurally unreasonable because the court properly considered the § 3553(a)
factors in its determination, even if the court failed to explicitly name the factors.
This Court has held that the sentencing court need not “explicitly articulate that it
had considered the § 3553(a) factors,” and the district court here stated its reasons
for its upward variance that satisfy several § 3553(s) factors.
Dorman, 488 F.3d at
944. The court stated that “the guidelines just absolutely under calculate his
criminal conduct,” which reflects the need to provide just punishment for the
offense. The court then noted that Lee “has been basically a criminal that’s just
been on the loose doing whatever he wants to do with whatever firearms he can get
his hands on. He is going to kill somebody,” which speaks to the need to protect
the public from Lee’s possible future criminal conduct. Further, the court also
stated that the 96-month sentence was “appropriate when [it] consider[ed] the
nature and circumstances of the offense and the history and characteristics of the
defendant,” which is explicit language from § 3553(a)(1). Finally, the court
warned Lee that he will no longer be “permitted to run loose, commit crimes, and
have firearms,” because the consequences of doing so will be more severe with this
conviction in his criminal history, which speaks of promoting respect for the law
and creating deterrence for future criminal conduct. Furthermore, these factors are
all mentioned in the court’s statement of reasons it filed after the sentencing
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hearing. These are all § 3553(a) factors, and as such, Lee’s argument that the
court’s sentence was procedurally unreasonable fails on account of the record.
Furthermore, Lee’s argument that the court failed to consider certain factors,
such as the kinds of sentences available, is without merit because a district court is
not required to state on the record that it has explicitly considered or discussed
each § 3553(a) factor.
Docampo, 573 F.3d at 1100. The court here has “set forth
enough to” demonstrate that it “considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority,” and has
“adequately explain[ed] the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.”
Rita, 551 U.S. at 356;
Gall, 552 U.S. at 50. Thus, the district court did not commit error by failing to
explicitly reference the § 3553(a) factors.
Moreover, even if this Court were to find any error, because Lee failed to
preserve his objection for procedural reasonableness before the district court, the
standard of review here is plain error.
Vandergrift, 754 F.3d at 1307. His objection
of “we just generally object to the court going outside the guidelines because this
was a guideline case, and we object to that” does not apprise the trial court and the
opposing party of the specific grounds on which appellate relief will be sought.
Carpenter, 803 F.3d at 1237-38. Instead, it is a “sweeping, general objection” that
is “insufficient to preserve specific sentencing issues for review.”
Id. at 1238.
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Thus, Lee was required to prove (1) an error occurred, (2) the error was plain, and
(3) the error affects substantial rights.
Olano, 507 U.S. at 732-36. As described
above, the court did not err, and even if this Court were to conclude that it did, that
error did not rise to the level of “seriously affect[ing] the fairness, integrity or
public reputation of judicial proceedings.”
Id. at 736.
Here, Lee has not met his burden of proving that his sentence was
substantively unreasonable because the district court considered the relevant §
3553(a) factors, it did not clearly err in considering or balancing those factors, and
it gave justification for its upward variance.
Irey, 612 F.3d at 1189. Furthermore,
Lee failed to establish that he and Perkins were similarly situated such that their
sentence disparity was unwarranted.
Holt, 777 F.3d at 1270. As stated above, the
district court considered the § 3553(a) factors of needing to provide just
punishment for the offense, needing to protect the public from Lee’s possible
future criminal conduct, the nature and circumstances of the offense and Lee’s
history and characteristics, and promoting respect for the law and creating
deterrence for future criminal conduct. The court gave great weight to his pending
offenses and concluded that an upwardly varied sentence was appropriate given
Lee’s “history and characteristics.” Lee argues that this focus on his pending cases
was unreasonable because a sentence near the statutory maximum “should be
reserved for the most culpable and dangerous persons.” However, a court is
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permitted to give one § 3553(a) factor greater weight than others,
Overstreet, 713
F.3d at 638, and this Court does not second guess the weight that the district court
gave to a factor if the sentence is reasonable in light of all the circumstances,
Pugh,
515 F.3d at 1191. Lee’s pending crimes were all centered around his possession of
firearms, most of which were stolen, which related directly to his instant offense
and are “germane to several § 3553(a) factors, including the history and
characteristics of the defendant.”
Overstreet, 713 F.3d at 637-38. Furthermore,
the court ensured that its sentence would run concurrently with his pending state
court sentences. These considerations do not amount to a clear error in judgment,
as it was reasonable to consider these factors.
Irey, 612 F.3d at 1189.
Finally, the court’s underlying reliance on the finding that the guidelines
“absolutely under calculate[d]” Lee’s offenses is reasonable under this Court’s
precedent. See
Moran, 778 F.3d at 983;
Overstreet, 713 F.3d at 637-38. In light of
the circumstances of his instant offense, his pending offenses related to firearms,
and the court’s desire for the sentence to run concurrently, the sentence appears
reasonable and this Court need not second guess the district court’s added weight
on Lee’s history and characteristics.
Pugh, 515 F.3d at 1191.
Next, the district court properly explained its sentence with the requisite
“significant justification” for such a major variation.
Irey, 612 F.3d at 1196. First,
the court admitted “the sentence is going to be significant,” but noted that the
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“guidelines just absolutely under calculate [Lee’s] criminal conduct.” The court
gave Lee and the government the opportunity to stipulate to Lee’s conduct in his
pending charges and justified its upward variance on the conduct described. The
court directly cited to each of the pending cases in explaining its decision and
noted that the cases demonstrated that Lee had been “on the loose doing whatever
he wants to do with whatever firearms he can get his hands on.” The guideline
calculation could only reflect Lee’s criminal history based on convicted crimes,
and thus, his conduct in the pending cases could be not reflected in the
recommended range. As such, in order to account for the “nature and
circumstances of the offense” (the theft and possession of firearms) and Lee’s
“history and characteristics” (pending cases for similar offenses), the court
reasonably decided to adjust Lee’s sentence upward. Thus, the court has
demonstrated a “more significant justification” to “support the degree of the
variance.”
Irey, 612 F.3d at 1196. It did so by relying on evidence of conduct in
his pending cases presented at the hearing.
Wilson, 884 F.2d at 1356.
Lee has also failed to prove that he and Perkins were similarly situated such
that their sentence disparity was unwarranted. Although Lee is correct is arguing
that he and Perkins “engaged in similar conduct,” and even some of the “same
conduct” in the past, the record shows that Perkins was not indicted on the same
charges as Lee. This Court will not find a disparity in sentences among
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codefendants to be unwarranted if they are not similarly situated.
Holt, 777 F.3d at
1270. One indicator of codefendants not being similarly situated is if one had
“been convicted of a less serious offense.”
Jayyousi, 657 F.3d at 1118. Here, the
record shows that Perkins was only indicted on possessing a stolen firearm the
Benelli 12-gauge shot gun that Lee pled guilty to taking from Birmingham Pistol
Parlor. Perkins told the ATF agents that he had not been at the Birmingham Pistol
Parlor, he met with Lee after the incident, and Lee would not tell Perkins the origin
of the weapons, and Lee put Perkins in charge of the Benelli shotgun. This
conduct and Perkins’s indictment charge in this instance can reasonably constitute
a “less serious offense” than Lee’s.
Jayyousi, 657 F.3d at 1118. Thus, Lee has
failed to establish that he and Perkins are similarly situated and, as such, his
argument that his sentence was substantively unreasonable for this regard is
without merit.
Finally, Lee’s final argument on appeal—that the court should have
recalculated his criminal history score or have considered what it might have been
when the pending cases became convictions—is without merit. Lee supports his
argument with this Court’s ruling in United States v. Johnson,
934 F.2d 1237, 1239
(11th Cir. 1991). However, that case involved a district court’s departure under a
provision of the guidelines and not, as in the case here, on a district court’s
variance pursuant to the § 3553(a) factors.
Johnson, 934 F.2d at 1239 (holding that
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the court, “in departing upward, must look to the next highest criminal history
category and determine, taking into account the factors allowed by section 4A1 .3,
whether that category more accurately reflects the defendant’s criminal history.”).
Thus, Lee’s argument is without merit here.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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