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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13925
Non-Argument Calendar
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D.C. Docket No. 6:18-cr-00086-CEM-GJK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TROY ALEX FREEMAN,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 29, 2019)
Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
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Troy Freeman appeals his 84-month sentence, an upward variance from his
applicable Sentencing Guidelines range, which the district court imposed after he
pled guilty to a single count of being a felon in possession of ammunition. After
careful review, we affirm.
I.
Freeman pled guilty to a single count indictment charging him with being a
felon in possession of ammunition, in violation of
18 U.S.C. §§ 922(g), 924(a)(2).
In anticipation of sentencing, the probation office prepared a presentence
investigation report (“PSR”). According to the PSR, Freeman’s long-time
girlfriend and the mother of his children called 911 to report that her boyfriend had
held a gun to her head and threatened to shoot her. Police arrived on the scene and
found Freeman’s girlfriend and her children hiding in a bedroom. The police
found a loaded firearm hidden under a mattress in Freeman’s son’s room.
Freeman’s girlfriend identified the gun as the one Freeman used to threaten her,
and Freeman admitted that the gun was his.
The PSR applied a base offense level of 14 under U.S.S.G. § 2K2.1. It
applied two enhancements—a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for possession of the ammunition in connection with a felony
(aggravated assault) and a two-level enhancement under U.S.S.G. § 3A1.1(b)(1)
because the offense was committed on a vulnerable victim—a two-level reduction
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for acceptance of responsibility, and a one-level reduction for timely notifying
authorities of his intention to plead guilty. As a result, his total offense level was
17.
Freeman had a criminal history category of IV. The PSR detailed his
criminal history, which included three convictions for unlawful possession of
firearms, two convictions for possession of drug paraphernalia, a conviction for
possession of cannabis, and a conviction for acquiring a firearm from a licensed
firearms dealer with false statements. The PSR included two additional
convictions for robbery, for which Freeman received no criminal history points. A
footnote in the PSR indicated that the robberies, which were committed in St.
Thomas, U.S. Virgin Islands, were not scored because hurricanes had destroyed
archived records of the offenses.
Freeman’s total offense level and criminal history category resulted in a
guidelines range of 37-46 months’ imprisonment with a statutory maximum
sentence of 10 years under
18 U.S.C. § 922(g)(1). Despite this calculation, the
probation office recommended a sentence of 60 months’ imprisonment because
Freeman’s criminal history likely was underrepresented by his guidelines range.
Both the government and Freeman submitted memoranda prior to
sentencing. The government argued that had the PSR accounted for Freeman’s
robberies in the Virgin Islands, his criminal history category would have been V,
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resulting in a guidelines range of 84-105 months’ imprisonment. It therefore
requested an upward variance of at least 60 months’ imprisonment. Freeman
objected to both enhancements to his offense level, disputed the events leading up
to his girlfriend’s 911 call, and requested a sentence at the low end of his
guidelines range.
At sentencing, the district court overruled Freeman’s objection to the four-
level enhancement for possession of the ammunition in connection with another
felony offense but sustained his objection to the two-level vulnerable victim
enhancement. The court therefore found that Freeman had a total offense level of
15, a criminal history category of IV, and a resulting guidelines range of 30-37
months’ imprisonment. Freeman, through counsel, expressed remorse and
suggested that he needed treatment and counseling rather than incarceration. The
government, conversely, argued that an above-guidelines sentence was warranted
because Freeman’s guidelines range underrepresented his criminal history,
Freeman was on supervised release for a prior felon-in-possession conviction when
he committed the instant offense, and Freeman had made similar arguments in
mitigation in that case, the result of which he received only 15 months’
imprisonment, a significant downward variance.
The district court explained that it had reviewed Freeman’s criminal history
and the factors set forth in
18 U.S.C. § 3553(a). Specifically, it noted the severity
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of Freeman’s criminal history, including the robberies, and that Freeman’s conduct
harmed and endangered his children. The district court imposed a sentence of 84
months’ imprisonment, a 47-month upward variance from the top of Freeman’s
guidelines range.
This is Freeman’s appeal.
II.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard, considering the totality of the circumstances and the
sentencing factors set forth in
18 U.S.C. § 3553(a). Gall v. United States,
552 U.S.
38, 41 (2007). Under § 3553(a), the district court is required to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes” of
§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect
for the law; provide just punishment; deter criminal conduct; protect the public
from the defendant’s future criminal conduct; and effectively provide the
defendant with educational or vocational training, medical care, or other
correctional treatment.
18 U.S.C. § 3553(a)(2). The court must also consider the
nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guidelines range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
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unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
The party challenging a sentence bears the burden of proving the sentence is
unreasonable. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). A
district court imposes a substantively unreasonable sentence when it fails to afford
consideration to relevant factors that were due significant weight, gives significant
weight to an improper or irrelevant factor, or 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); see United States v. Crisp,
454 F.3d 1285, 1292 (11th Cir.
2006) (explaining that a sentencing court’s “single-minded[]” focus on one factor
to the detriment of other relevant sentencing factors “is a symptom of an
unreasonable sentence” (internal quotation marks omitted)).
Although generally the weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, United States v.
Williams,
526 F.3d 1312, 1322 (11th Cir. 2008), a district court commits a clear
error of judgment when it “considers the proper factors but balances them
unreasonably” and imposes a sentence that “does not achieve the purposes of
sentencing as stated in § 3553(a),” Irey,
612 F.3d at 1189-90 (internal quotation
marks omitted). We will vacate a sentence if we are “left with the definite and
firm conviction that the district court committed a clear error of judgment in
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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 (internal
quotation marks omitted).
III.
Freeman argues that his sentence was substantively unreasonable because it
was significantly higher than his guidelines range and the above-guidelines
sentence of 60 months requested by the probation office and the government.
Specifically, he argues that by varying upward based on his criminal history—
much of which came from firearms offenses—and his use of the firearm to threaten
his girlfriend, the district court essentially double-counted because his guidelines
range already accounted for his firearms history and the aggravated assault of his
girlfriend.
Regardless of whether we would have imposed the same term of
incarceration had we been tasked with sentencing Freeman in the first instance, we
cannot say that the district court abused its discretion in imposing a sentence of 84
months. In addition to taking Freeman’s firearms offenses into account, the district
court noted the two robberies from the Virgin Islands when it concluded that the
applicable guidelines range underrepresented Freeman’s criminal history. 1 As to
1
Freeman does not challenge the district court’s consideration of the robbery offenses in
crafting his sentence.
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the aggravated assault of Freeman’s girlfriend, the district court stated that an
upward variance was warranted because of the need to protect Freeman’s children
from violence, not because Freeman threatened his girlfriend. These
considerations are distinct and not, therefore, akin to double-counting. See United
States v. Phillips,
363 F.3d 1167, 1168 (11th Cir. 2004) (“Impermissible double
counting occurs only when one part of the Guidelines is applied to increase a
defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” (internal quotation
marks omitted)). And, in any event, “a district court can rely on factors in
imposing a variance that it had already considered in imposing an enhancement.”
United States v. Rodriguez,
628 F.3d 1258, 1264 (11th Cir. 2010). Thus, to the
extent the district court relied on facts that formed the basis for his criminal history
and guidelines enhancements to vary upward from the applicable guidelines range,
the court was within its discretion to do so.
Freeman has not met his burden of showing that his sentence is substantively
unreasonable. We therefore affirm the sentence the district court imposed.
AFFIRMED.
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