United States v. Jimmy Evans , 522 F. App'x 641 ( 2013 )

Case: 12-15195 Date Filed: 06/24/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15195
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00214-TJC-TEM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY EVANS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 24, 2013)
Before CARNES, BARKETT, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Jimmy Evans appeals his total 200-month, above-guideline sentence,
imposed after he pleaded guilty to aiding and abetting an attempted bank robbery,
in violation of 18 U.S.C. §§ 2113(a), (d), and 2 (Count One); and aiding and
abetting the use of a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), and 2 (Count Three). Evans’s total
guideline range was 87 to 108 months on Count One, with a statutory minimum
sentence of 84 months on Count Three, to run consecutive to the sentence imposed
on Count One.
On appeal, Evans argues that his sentence was substantively unreasonable,
based on (1) the district court’s failure to give real weight to the guidelines range,
including its failure to explain its reasons for the upward variance; (2) the court’s
erroneous weighing of the 18 U.S.C. § 3553(a) sentencing factors; and (3) the
totality of the circumstances. We see no reversible error.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128
S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). The party challenging the sentence bears
the burden of showing it is unreasonable in the light of the record and the §
3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
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The district court is required to impose a sentence “sufficient, but not greater
than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. See 18 U.S.C.
§ 3553(a)(2). In imposing a particular sentence, the district court must also
consider the nature and circumstances of the offense, the history and characteristics
of the defendant, the applicable guideline range, and the need to avoid unwarranted
sentencing disparities. Id. § 3553(a)(1), (3)-(4), (6).
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court, and we will not substitute our judgment
in weighing the relevant factors.” United States v. Langston, 590 F.3d 1226, 1237
(11th Cir. 2009). Extraordinary justification or rigid mathematical formulas are
not required for a sentence outside the guidelines range, but we have said that the
district court should explain why the variance is appropriate in a particular case
and the “justification for the variance must be sufficiently compelling to support
the degree of the variance.” United States v. Irey, 612 F.3d 1160, 1186-87 (11th
Cir. 2010) (en banc) (quotation omitted). Likewise, although sentences outside the
guidelines are not presumed to be unreasonable, we may take the degree of a
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variance into account. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009).
Based on the record, we cannot say that the district court imposed a
substantively unreasonable sentence. The court clearly articulated enough its
reasons for the upward variance, specifically noting the violent nature of the
attempted robbery, Evans’s leadership and planning role, and his attempts to
obstruct justice. The court considered that Evans indicated that he had followed a
female bank employee home and had learned that she had a husband that lived
there, and that Evans instructed his codefendants that, if she did not cooperate, they
were to apprehend the employee’s husband and use him to force her to open the
vault. The court also considered that Evans had threatened his codefendants, and
he forced one of them to sign an affidavit in an attempt to minimize his own
punishment. The court was within its discretion to find that these circumstances
took Evans’s case out of the “heartland” of typical robbery cases and that the
circumstances warranted the upward departure.
In addition, the court considered the need to protect the public, reflect the
seriousness of the offense, promote respect for the law, and provide just
punishment. See 18 U.S.C. § 3553(a)(2)(A), (C). Furthermore, the court
acknowledged Evans’s mitigating factors, including his military service, history of
alcoholism, and his own status as a robbery victim. Moreover, the degree of the
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variance was not great (8 months); and the total 200-month sentence was well
below the statutory maximum sentences of 300 months on Count One and life on
Count Three. See Shaw, 560 F.3d at 1237; see also United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008) (noting that a sentence “well below” the statutory
maximum was relevant to the reasonableness inquiry). Thus, based on the record,
the justification for the variance was easily sufficiently compelling to support its
degree. Evans cannot meet his burden of showing that the district court abused its
discretion in the light of the record and the § 3553(a) factors. See Gall, 552 U.S. at
41, 128 S.Ct. at 591; Tome, 611 F.3d at 1378.
AFFIRMED.
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