USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11254
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARA JAPREE GISSENDANNER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cr-00461-LSC-JHE-1
____________________
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 2 of 20
2 Opinion of the Court 21-11254
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Tavara Gissendanner appeals his conviction and 480-month
sentence for conspiracy to possess with intent to distribute a
mixture containing methamphetamine and heroin. He argues that
the district court erred in finding that he did not make a prima facie
case that the government discriminatorily struck black jurors in
violation of Batson v. Kentucky,
476 U.S. 79 (1986). He also argues
that his sentence was procedurally unreasonable because the
district court failed to adequately explain the sentence and failed to
consider his mitigation arguments. After review, we affirm.
I. Background
Gissendanner, along with several other individuals, was
charged in a superseding indictment with one count of conspiring
to possess with intent to distribute a mixture and substance
containing 500 grams or more of methamphetamine and a mixture
and substance containing one kilogram or more of heroin, in
violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Importantly,
Gissendanner was incarcerated on other convictions at the time of
the conspiracy and arranged outside drug transactions and
shipments from inside the prison. Gissendanner pleaded not
guilty, and his case was set for a joint trial with codefendant Isiah
Thomas.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 3 of 20
21-11254 Opinion of the Court 3
(a) Voir Dire
Jury selection took place in August 2020. At the start of the
proceeding, Gissendanner moved the district court to treat any
objection made by either defendant as “made by both defendants
with equal applicability.” The court agreed but explained that
objections that were specific to one particular defendant would not
be attributed to the other defendant.
Before the venire was brought into the courtroom, the
district court noted the racial composition of the jury pool: 30% of
the potential jurors were black, 66% were white, 2% were Asian,
and 2% were unknown. Of this pool of potential jurors, a smaller
subset was randomly selected (by computer) as the venire to
participate in voir dire. Nine black jurors were in the subset of
jurors selected for the venire.
The district court requested that each juror provide personal
background information. As relevant to the issues on appeal, Juror
28, a black woman, stated that she was a probation officer for the
Jefferson County Family Court. She explained that she also
volunteered for the Alabama Justice Initiative, an organization that
advocates for prison reform. She added that she had a law degree
and a master’s degree in criminal justice. She confirmed that she
knew several members of the defense team “because of [her]
profession.” She also confirmed that her mother was a recovering
drug addict. The defense asked the venire if anyone was familiar
with Bullock Correctional Facility in Alabama, and she explained
that she knew of the facility because of her prison reform work.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 4 of 20
4 Opinion of the Court 21-11254
She stated that she had never been to the facility but that she had
received “numerous videos” about violent incidents taking place
inside the prison.
The district court explained to the venire that it anticipated
that there might be law enforcement witnesses who would testify
in the case, and it asked the venire if there was anyone who
“because of things you have heard, [or] experiences you have
had . . . [would] either believe automatically or disbelieve
[automatically]” a law enforcement witness’s testimony. The
court clarified that it needed to know whether just because a
witness was in law enforcement, “you are either going to believe
automatically or automatically disbelieve [the witness] without
applying the credibility standard.” In response, Juror 10 stated that
“as a black man living in the United States at this time,” he did not
know if he could give law enforcement “the benefit of the doubt.”
Later, the prosecutor, inquired of the venire whether “after
watching recent events that have occurred on television, has
anyone’s opinion been changed, whether positively or negatively,
as it relates to law enforcement? Has anyone had their opinion
changed over the past six months to a year as it relates to law
enforcement?” And Juror 10 responded that his “opinion was bad
and it just got worse[].”
During individual voir dire, the district court asked Juror 10
about his prior statement that he automatically would not believe
a law enforcement officer’s testimony, and Juror 10 confirmed he
would “not based on word alone,” and that he would need to “have
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 5 of 20
21-11254 Opinion of the Court 5
body cam or something more than just word alone.” The district
court explained that he would “have to apply the same standards
of credibility to [a law enforcement] witness as [he] would any
other witness” and the court needed to know if Juror 10 could do
that. Juror 10 responded “I don’t know. I don’t know, your
Honor.” The following colloquy then occurred:
[Defense counsel]: [Juror 10], correct me if I am
misquoting you, but I believe you said during the
open session that you couldn’t give law enforcement
the benefit of the doubt. Is that how you put it?
[Juror 10]: Yes.
[Defense counsel]: Okay. So, . . . if you are told
you’re not supposed to give anybody the benefit of
the doubt and you are supposed to judge everyone
fairly, as the judge has explained, do you feel you
could do that, or is it just simply a matter of you can’t
give them the [benefit of] the doubt but you will hear
them out just like everybody else?
[Juror 10]: Basically[,] what I’m saying, I can’t give
them the benefit of the doubt just because they wear
the uniform. Not—
[Defense counsel]: Are you saying you’re not going
to give them extra credit because they’re law
enforcement?
[Juror 10]: Correct.
[Defense counsel]: But you will give them the same
credit as any other witness?
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 6 of 20
6 Opinion of the Court 21-11254
[Juror 10]: I would do my best, yes.
[Defense counsel]: Okay.
The Court: I have to have it clearer than that.
Okay? . . . I need to either know you’re going to apply
the same standard of credibility or you’re not.
[Juror 10]: I will apply the same standard, your
Honor. Yes.
The Court: Being fair?
[Juror 10]: Yes.
Next, during individual voir dire, defense counsel
questioned Juror 28 about what she knew about the Bullock
Correctional Facility given her prior statement that she knew of
incidents at the facility from her prison reform work. She explained
she was aware that there was a lot of violence at the facility, both
inmate-on-inmate and officer-on-inmate, but she confirmed that
she would be able to set her knowledge aside and be “neutral and
unattached to parties.” She also confirmed that knowing members
of the defense team from her work as a probation officer would not
interfere with her ability to “be neutral and detached.”
Following the individual voir dire, the government moved
to strike only one of the venire for cause—Juror 10. The defense
objected, arguing that, by the end of the colloquy, Juror 10 had
indicated that he would judge and treat all witnesses the same and
would be fair and neutral. The district court noted that it was “a
close call,” but based on Juror 10’s answers to the court’s questions,
it would not strike him for cause.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 7 of 20
21-11254 Opinion of the Court 7
The district court then proceeded to address the parties’
peremptory strikes. The court explained that the defendants had a
total of 10 strikes combined, and the government had six. The
defense and the government also each had one peremptory
alternate strike. The defendants struck two of the nine prospective
black jurors. The government moved to strike four of the
prospective black jurors, including Juror 10 and 28.
Gissendanner raised a Batson challenge to the striking of
Juror 10, arguing that there was no valid basis for his exclusion
because by the end of voir dire, he stated that he could be impartial.
The following colloquy occurred:
The Court: You have not made a prima facie
showing of Batson because, obviously, he said that he
dislikes police, that he doesn’t give them the benefit
of the doubt. At first he said I wouldn’t believe them
because they were law enforcement, and then he
changed. And I basically allowed him to stay. But
then I knew the government would strike him. I
didn’t give them a challenge for cause. I almost did.
[Defense counsel]: Understood, your Honor. And
the prima facie case I would make is that what the
court referenced at the end, his ending statements, as
we discussed earlier. But I understand the court’s
ruling.
[The Court]: Even his ending statements, [counsel],
were not sufficient. Because his ending statements,
what he said at the end was derogatory toward law
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 8 of 20
8 Opinion of the Court 21-11254
enforcement. He said, I haven’t changed my opinion
in the last, however many months, six months or
whatever one of y’all asked about.
And, I mean, it was like pulling teeth for y’all to
rehabilitate him. I think [you were] able to finally
rehabilitate him sufficiently to keep him from being
struck for cause.
But he absolutely, there was race neutral reasons,
several of them to strike him.
The district court explained that, unless the defense demonstrated
a prima facie case under Batson, it did not need to ask the
government to provide a race neutral reason for its strike.
Gissendanner’s codefendant raised a Batson challenge to the
striking of Juror 28, arguing that because the government had used
four of its six peremptory strikes against black jurors, there was a
“disparity” on the jury with regard to the proportion of black jurors
to other races. 1 Counsel requested that given the disparities, “the
venire and the remaining panel be tossed and we start over so we
can get a jury that is more representative of the community.”
Without asking the government for an explanation, the district
1 Defense counsel asserted in the district court that as a result of the
government’s strikes, there was only 1 black juror left, but the record confirms
that statement is incorrect. There were nine black jurors in the venire, the
defense struck two and the government struck four, which left three black
jurors in the venire that were ultimately seated on the jury. Indeed,
Gissendanner agrees in the initial appellate brief that two black jurors were
seated on the jury and one served as an alternate.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 9 of 20
21-11254 Opinion of the Court 9
court denied the challenge, noting that Juror 28 did volunteer
prison reform work and had indicated she was aware of “awful
stuff” happening at the prison facility.2 There were three black
jurors seated on the final jury, one of which served as an alternate.
At trial, the jury found Gissendanner and his codefendant
guilty as charged. The evidence showed that, while Gissendanner
was an inmate at Bullock Correctional Facility in Alabama, he
organized and facilitated drug transactions outside the prison.
(b) Sentencing Hearing
Before the sentencing hearing, Gissendanner filed a
sentencing memorandum setting forth various mitigating
circumstances, including that (A) he was 37 years old and faced a
statutory minimum sentence of 300 months’ imprisonment, which
meant that he would be in his 60s upon release and much less likely
to reoffend; and (B) he suffered from several mental health issues,
and he had a childhood characterized by abuse and neglect.
At sentencing, the district court concluded that
Gissendanner qualified as a career-offender based on his criminal
history and that the resulting guidelines range was 360 months to
life imprisonment. Gissendanner requested a sentence of 360
months’ imprisonment and reiterated his mitigation arguments
2 Additionally, a Batson challenge was raised to the striking of Juror 5. And
although Gissendanner discusses the striking of Juror 5 in his brief, he
affirmatively states that he is not appealing the denial of the Batson challenge
as to that juror.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 10 of 20
10 Opinion of the Court 21-11254
from the sentencing memorandum. The government asked the
court to consider “a mid to high end sentence up to and including
life,” which it argued was appropriate to protect the community
from Gissendanner’s future crimes, to reflect the seriousness of the
offense, and in light of Gissendanner’s lengthy criminal history3
and personal characteristics.
Gissendanner then made a statement explaining that “a lot
of that stuff [the government] said is on paper but it’s false.” He
averred that he had changed, and he “continue[s] to try to change
to be better.” He also maintained his innocence in the present case.
The district court sentenced Gissendanner to 480 months’
imprisonment followed by 20 years of supervised release.
Addressing Gissendanner, the district court explained that:
this is not a low end of the guideline range sentence
case. It’s just not. You were running this operation;
you were the leader of it. The fact that you sit there
and say with a straight face that you are not guilty and
all this stuff is false about you just demonstrates that
you have no remorse for what you have done and,
left to your own devices, you would continue to do
it.
3 The government noted that even without the career-offender enhancement,
Gissendanner would have the highest criminal history category of VI due to
his lengthy criminal history. Gissendanner’s presentence investigation report
documented 10 convictions dating back to 1999.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 11 of 20
21-11254 Opinion of the Court 11
The district court noted that the sentence imposed “strikes a good
balance when I consider the nature and circumstances of the
offense that you are convicted of as well as your characteristics and
the need to protect the public from your crimes as well.”
Gissendanner objected to the sentence “for the reasons stated
earlier.” This appeal followed.
II. Discussion
A. Batson Claim
Gissendanner argues that the district court misapplied
Batson and imposed an erroneously high standard for establishing
a prima facie Batson claim with regard to the striking of Jurors 10
and 28. He maintains that a prima facie Batson claim was
established due to the government’s pattern of striking almost half
the black jurors in the venire after it asked voir dire questions—and
elicited answers to those questions—that were “tinged by race.”
He argues that the district court failed to follow the proper three-
step inquiry for Batson challenges with regard to the striking of
Jurors 10 and 28 and erroneously proffered its own race-neutral
reasons for the strike without asking the government for its actual
reasons. Accordingly, he asserts that the case must be remanded
for further Batson proceedings and, if necessary, a new trial.
“The Supreme Court in Batson established the now-familiar
three-part inquiry for evaluating whether a peremptory strike was
motivated by racial or ethnic discrimination.” United States v.
Ochoa-Vasquez,
428 F.3d 1015, 1038 (11th Cir. 2005) (citing Batson,
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 12 of 20
12 Opinion of the Court 21-11254
476 U.S. at 79). First, “the district court must determine whether
the party challenging the peremptory strikes has established a
prima facie case of discrimination by establishing facts sufficient to
support an inference of racial discrimination.”
Id. (quotations
omitted). If the challenger has established a prima facie case, “the
burden then shifts at step two to the striker to articulate a race-
neutral explanation for the challenged strike.”
Id. Finally, at step
three, the district court must determine whether the striker’s
“stated reasons were the actual reasons or instead were a pretext
for discrimination.” Flowers v. Mississippi, __ U.S. __,
139 S. Ct.
2228, 2241 (2019). Importantly, “the ultimate burden of persuasion
rests with, and never shifts from, the opponent of the strike.”
Ochoa-Vasquez,
428 F.3d at 1038 (quotations omitted).
“We review the district court’s resolution of a Batson
challenge under the clearly erroneous standard.” 4 Cent. Ala. Fair
Hous. Ctr. v. Lowder Realty,
236 F.3d 629, 635 (11th Cir. 2000).
“As part of that review, we give great deference to the district
court’s finding as to the existence of a prima facie case.”
Id.
(internal quotation marks omitted); see also Ochoa-Vasquez, 428
4 The government asserts that the Batson challenge to the striking of Juror 28
was raised specifically on behalf of codefendant Thomas only, and we should
review Gissendanner’s Batson challenge as to Juror 28 for plain error only. We
disagree. As noted previously, at the beginning of the proceedings, the defense
requested that objections made by either defendant be treated as an objection
by both, and the district court agreed. Accordingly, Gissendanner’s Batson
challenge to Juror 28 was preserved.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 13 of 20
21-11254 Opinion of the Court 13
F.3d at 1039 (explaining that a district court’s findings as to whether
a prima facie case of discrimination has been established are
entitled to “great deference” and “[d]e novo review is
inappropriate.” (quotations omitted)).
“[T]he establishment of a prima facie case is an absolute
precondition to further inquiry into the motivation behind the
challenged strike.” Ochoa-Vasquez,
428 F.3d at 1038 (quotations
omitted); United States v. Stewart,
65 F.3d 918, 925 (11th Cir. 1995)
(“No party challenging the . . . use of a peremptory strike—whether
that party be the government, a criminal defendant, or a civil
litigant—is entitled to an explanation for that strike, much less to
have it disallowed, unless and until a prima facie showing of racial
discrimination is made.”). “Accordingly, the threshold task in
considering a Batson challenge, for a district court as well as this
Court, is to determine whether a prima facie case was established.
If the answer is no, then the inquiry ceases, and the challenge
should be denied.” Lowder Realty, 236 F.3d at 636.
In establishing a prima facie case, “the defendant must point
to more than the bare fact of the removal of certain venirepersons
and the absence of an obvious valid reason for the removal.”
United States v. Allison,
908 F.2d 1531, 1538 (11th Cir. 1990)
(quotation omitted). Rather, the defendant must point to
circumstances that raise an inference that the government has
exercised peremptory strikes to remove from the venire members
of a particular racial group.
Id. Relevant evidence that a defendant
may present to support a prima facie case of racial discrimination
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 14 of 20
14 Opinion of the Court 21-11254
include, among other things, (1) the government’s pattern of
striking venire members of one race or (2) questions or statements
made during voir dire to members of a particular race that support
the inference of a discriminatory purpose. Flowers, __ U.S. at __,
139 S. Ct. at 2243; Batson,
476 U.S. at 97; United States v.
Robertson,
736 F.3d 1317, 1326 (11th Cir. 2013).
On appeal, Gissendanner argues that both a pattern of
strikes and the government’s use of discriminatory questions or
statements during voir dire establish a prima facie case. At trial,
however, Gissendanner’s challenge rested solely on allegations
that the government had engaged in a pattern of discriminatory
strikes because it used four of its six strikes against the nine black
members of the venire which created a racial “disparity” in the jury,
and that there was no obvious reason to remove those jurors.
Gissendanner never argued to the district court that questions
posed by the government during voir dire suggested a
discriminatory purpose. 5 Accordingly, in determining whether
5 Gissendanner argues for the first time in his reply brief that he was not
afforded an opportunity to argue in the district court proceedings that the
prosecutor’s alleged race-tinged questioning was a basis for the Batson
challenges. We disagree. Gissendanner’s trial took place in August 2020 and
Gissendanner acknowledges that during that time there was significant
“media coverage about police officers’ use of force against Black Americans.”
Reply Br. at 15. Gissendanner did not object to the alleged “race-tinged”
questioning during voir dire as to whether certain unspecified recent events
had impacted the venirepersons’ view of law enforcement. Gissendanner
states that he did not object because “the questioning was not objectionable”
and explored “a valid subject of inquiry during voir dire.” Nevertheless, he
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 15 of 20
21-11254 Opinion of the Court 15
Gissendanner established a prima facie case, we will consider only
the grounds that he advanced below. See United States v.
Houston,
456 F.3d 1328, 1338 (11th Cir. 2006) (declining to address
an additional argument in support of Batson challenge raised for
the first time on appeal).
As a matter of law, the fact that the government used four
of its six peremptory strikes against black members of the venire
standing alone is inadequate to establish a prima facie case. Lowder
Realty, 236 F.3d at 636 (“To begin with, the mere fact of striking a
juror or a set of jurors of a particular race does not necessarily
create an inference of racial discrimination.”); see also Stewart,
65
F.3d at 925 (explaining that “no particular number of strikes” used
against a particular race or ethnic group “automatically indicates
the existence of a prima facie case”). Rather, “[t]he number of
persons of a particular race struck takes on meaning only when
coupled with other information such as the racial composition of
the venire, the race of others struck, or the voir dire answers of
those who were struck compared to the answers of those who
were not struck.” Lowder Realty, 236 F.3d at 636–37.
argues that permissible questions may help establish a prima facie case if the
questioning was designed to “arm[] a prosecutor with seemingly race-neutral
reasons to strike the prospective jurors of a particular race.” (quotations
omitted). However, even if that is true, Gissendanner and his codefendant
raised three separate Batson challenges, which were discussed at length in the
district court, and not once did either Gissendanner or his codefendant
mention the prosecutor’s alleged improper questioning during voir dire as a
basis for its prima facie case, despite having ample opportunity to do so.
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 16 of 20
16 Opinion of the Court 21-11254
The district court concluded that Gissendanner failed to
establish a prima facie case. As the district court correctly
observed, our precedent requires more than pointing to the bare
fact of the removal of venirepersons of a certain race. Id. at 637
(“In making out a prima facie case, the defendant must point to
more than the bare fact of the removal of certain venire persons
and the absence of an obvious valid reason for the removal.”
(quotations omitted)). In rejecting Gissendanner’s challenge, the
district court considered the totality of the circumstances,
including the racial composition of the jury, the answers of the
struck jurors during voir dire which demonstrated an “obvious
valid reason” for removal, and that the defense failed to point to
any other facts or circumstances—other than bare numbers and no
valid reason for removal—to support an inference of improper
racial discrimination. Additionally, three black jurors, including
one alternate, were seated on Gissendanner’s jury, which further
undermines his prima facie case. Id. at 638 (holding that “the
unchallenged presence of jurors of a particular race on a jury
substantially weakens the basis for a prima facie case of
discrimination in the peremptory striking of jurors of that race”);
see also United States v. Hill,
643 F.3d 807, 838–39 (11th Cir. 2011)
(holding that there was a strong basis for finding no prima facia case
existed where the government used 64% of its strikes against black
jurors, but several unchallenged black jurors served on the
18-person jury).
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 17 of 20
21-11254 Opinion of the Court 17
Accordingly, for the reasons stated above, Gissendanner has
not shown that the district court’s prima facie determination was
clearly erroneous, and our inquiry must end. See Hill,
643 F.3d at
837–38 (“[T]he trial court’s [prima facie] determination is entitled
to great deference, and must be sustained unless it is clearly
erroneous.” (quotations omitted)); Ochoa-Vasquez,
428 F.3d at
1039 (“We give great deference to a district court’s findings of
whether a prima facie case of impermissible discrimination has
been established” and “it will not be disturbed on appeal unless it
is clearly erroneous or appears to have been guided by improper
principles of law.” (quotations omitted)); Lowder Realty, 236 F.3d
at 636 (“[T]he threshold task in considering a Batson challenge, for
a district court as well as this Court, is to determine whether a
prima facie case was established. If the answer is no, then the
inquiry ceases, and the challenge should be denied.”).
B. Sentencing Claim
Gissendanner argues that his sentence is procedurally
unreasonable because the district court inadequately explained the
chosen sentence and failed to consider his mitigation evidence.
We review a sentence for both procedural and substantive
reasonableness under a deferential abuse of discretion standard.
See Gall v. United States,
552 U.S. 38, 51 (2007). In reviewing a
sentence for procedural reasonableness, we “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
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 18 of 20
18 Opinion of the Court 21-11254
§ 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.” United
States v. Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008) (quotations
omitted).
The district court must issue a sentence that is “sufficient,
but not greater than necessary” to comply with the purposes of
18
U.S.C. § 3553(a)(2), which include the need for a sentence to reflect
the seriousness of the offense, promote respect for the law, provide
just punishment, deter criminal conduct, and protect the public
from future criminal conduct.
18 U.S.C. § 3553(a). The court must
also consider the “nature and circumstances of the offense and the
history and characteristics of the defendant.”
Id. § 3553(a)(1).
“[T]he district court need only ‘acknowledge’ that it considered the
§ 3553(a) factors, and need not discuss each of these factors . . . .”
United States v. Amedeo,
487 F.3d 823, 833 (11th Cir. 2007)
(quotation and internal citation omitted). Importantly, the weight
given to a particular § 3353(a) factor “is committed to the sound
discretion of the district court,” and the district court is not
required to give “equal weight” to the § 3553(a) factors. United
States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015)
(quotation omitted). When explaining a sentence, the district court
judge must “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 (2007).
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 19 of 20
21-11254 Opinion of the Court 19
Here, the district court adequately explained the reasons for
Gissendanner’s sentence, including that Gissendanner was a leader
and organizer of the drug operation, continued to maintain his
innocence, and had a lengthy criminal record. The district court
emphasized that the sentence imposed struck “a good balance”
between the nature and circumstances of the offense and
Gissendanner’s personal history and characteristics, and the need
to protect the public. The district court’s statements establish that
it considered the § 3553(a) factors and had a reasoned basis for its
sentencing decision. The fact that the district court did not address
Gissendanner’s mitigation arguments does not mean that the
district court failed to consider them. See Amedeo,
487 F.3d at 833.
Furthermore, we know that the district court considered
Gissendanner’s mitigation arguments because it heard his
counsel’s mitigation arguments at sentencing. 6 Accordingly, on
this record, we conclude there was no procedural error.
6 The Supreme Court’s recent decision in Concepcion v. United States,
142 S.
Ct. 2389 (2022), which Gissendanner relies on as supplemental authority, does
not change our analysis. Concepcion involved the question of whether a
district court must consider intervening changes in the law when deciding a
motion for modification of sentence under the First Step Act.
Id. at 2396. It
has no direct application to Gissendanner’s case. Furthermore, Concepcion
did not alter the general principle that the district court need not explicitly
address every § 3553(a) factor or mitigation argument as long as the record
reflects that the district court considered the arguments before it. Id. at 2404
(“Of course, a district court is not required to be persuaded by every argument
parties make, and it may, in its discretion, dismiss arguments that it does not
USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 20 of 20
20 Opinion of the Court 21-11254
III. Conclusion
For the above reasons, we affirm Gissendanner’s conviction
and sentence.
AFFIRMED.
find compelling without a detailed explanation. Nor is a district court required
to articulate anything more than a brief statement of reasons.”).
