USCA11 Case: 21-14044 Date Filed: 07/18/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14044
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA LEWIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80099-AMC-1
____________________
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2 Opinion of the Court 21-14044
Before WILSON, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Joshua Lewis appeals his 36-month
sentence for one count of illegal reentry by a previously removed
alien. On appeal, Lewis argues that his sentence, above the
advisory guidelines range of 18 to 24 months, is procedurally and
substantively unreasonable. After review, we affirm.
I. FACTUAL BACKGROUND
A. Offense Conduct
On June 24, 2021, the Palm Beach County Sheriff’s Office
Marine Unit intercepted a boat without navigational lights two
miles off the Florida coast. The boat contained 19 people,
including defendant Lewis. Although Lewis is a citizen of the
Bahamas, the other 18 people on the boat were citizens of Haiti.
Law enforcement was unable to determine who was the captain of
the boat. U.S. Customs and Border Patrol also responded and
determined that the boat’s occupants had entered the United States
illegally without proper documentation.
After Lewis was taken into custody, records indicated that:
(1) he had not obtained permission to enter the United States; and
(2) on November 29, 2019, law enforcement had encountered
Lewis on or near a boat at a marina in Riviera Beach, Florida and
detained him for smuggling migrants from the Bahamas to the
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21-14044 Opinion of the Court 3
United States. On that occasion, Lewis was processed
administratively and removed to the Bahamas on January 14, 2020.
Three days later, however, Lewis was again detained in
Florida, when immigration authorities responded to a possible
landing of a small vessel in Palm Beach, Florida. Lewis admitted
he had captained the vessel from the Bahamas to the United States
with twelve migrants on board. This time, Lewis was charged in
federal court with illegal reentry and alien smuggling. Lewis pled
guilty and received a sentence of one year and one day, followed
by two years of supervised release. After serving his sentence,
Lewis was removed to the Bahamas on May 13, 2021. Yet, here on
June 24, 2021, Lewis was once again on a boat off the Florida coast
with 18 Haitians on it.
B. Indictment and Guilty Plea
In July 2021, Lewis was charged by information with one
count of illegal reentry, in violation of
8 U.S.C. § 1326(a) and (b)(2).
Lewis entered a guilty plea without the benefit of a plea agreement.
Without objection, the district court adopted the magistrate
judge’s report recommending that Lewis’s plea be accepted and
adjudicated Lewis guilty.
C. Presentence Investigation Report
Lewis’s presentence investigation report (“PSI”) assigned
him a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a). His
base offense level was then: (1) increased by 4 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) because Lewis had previously been
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4 Opinion of the Court 21-14044
deported after a felony conviction for illegal reentry; (2) increased
by another 4 levels pursuant to U.S.S.G. § 2L1.2(b)(3)(D) because
he engaged in criminal conduct after his deportation that resulted
in a felony conviction that was not an illegal reentry offense,
specifically his conviction for alien smuggling; and (3) decreased by
three levels for acceptance of responsibility, resulting in a total
offense level of 16.
The PSI assigned Lewis two criminal history points for his
2020 convictions for alien smuggling and illegal reentry, under
U.S.S.G. § 4A1.1(b). Because Lewis was still on supervised release
for those convictions, the PSI added two additional points to his
criminal history, under U.S.S.G. § 4A1.1(d), for a total of four
criminal history points and a criminal history category of III. The
PSI did not recommend any Chapter 4 enhancements or identify
any possible basis for an upward departure under the Guidelines.
With a criminal history category of III and an offense level
of 13, the PSI recommended an advisory guidelines range of 18 to
24 months’ imprisonment. The statutory maximum sentence for
Lewis’s
8 U.S.C. § 1326 violation was 20 years.
The parties did not object to the PSI.
D. Sentencing
At sentencing, the district court adopted the PSI’s guidelines
calculations and asked the parties what an “appropriate sentence”
would be. The parties asked for an 18-month sentence, at the low
end of the advisory guidelines range.
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21-14044 Opinion of the Court 5
In mitigation, Lewis acknowledged that he had quickly
recidivated but explained that he had reentered the United States
only because he was unable to find work in the Bahamas and had
been offered a construction job in Fort Lauderdale that would
allow him to support his two-year-old daughter. Lewis stressed
that he had no history of violence or drug crimes, that he faced
difficult prison conditions because of the COVID-19 pandemic, and
that he would be removed after he completed his sentence. He
also faced an additional prison sentence for violating supervised
release in his 2020 convictions, which would provide adequate
deterrence. In response, the government clarified that it planned
to seek a consecutive sentence in Lewis’s supervised release
revocation proceedings.
Describing Lewis’s case as “concerning,” the district court
rejected the parties’ request for sentence within the advisory
guidelines range. Given that Lewis’s prior sentence of one year and
one day was inadequate to deter him, the district court imposed a
36-month sentence, as follows:
Notwithstanding that relatively low [one year and
one day] sentence, you were then removed in May of
2021; and just about a month later, you turned right
around and brazenly decided to reenter again under
similar circumstances to your prior conviction. So in
the Court’s view, there is clearly a need for a more
significant sentence to deter you from committing
more criminal conduct; and so for those reasons, the
Court respectfully will reject the joint
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6 Opinion of the Court 21-14044
recommendation for a guideline sentence and vary
upward to a sentence for 36 months imprisonment
which, I note, is still far below the 20-year statute
maximum permitted under 1326(b)(2).
The district court stated that it had “considered the statements of
[the] parties, the presentence investigation report which contains
the advisory guidelines and the statutory factors as set forth in Title
18, United States Code, Section 3553(a).”
After the district court pronounced the sentence, Lewis
objected to the “upward departure.” When the district court
replied that it was a variance, Lewis argued that because the
variance was “based upon his prior record,” it was “in essence, an
upward departure” that required notice under Federal Rule of
Criminal Procedure 32 and a guided departure analysis under
Chapter Four of the Sentencing Guidelines. Lewis stated that he
objected on this procedural ground.
In response, the district court stated that it “would like to
make very clear for the record that this is an upward variance based
on an examination of the entire record including all of the factors
in Title 18, United States Code 3553(a); and for all of the reasons
stated including the need to deter the defendant and the need to
promote respect for the law, the upward variance, not a departure,
has been imposed.” At that point, Lewis objected to “the upward
departure or variance” as substantively unreasonable.
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21-14044 Opinion of the Court 7
II. DISCUSSION
We review the reasonableness of a sentence under the
deferential abuse-of-discretion standard using a two-step process.
United States v. Cubero,
754 F.3d 888, 892 (11th Cir. 2014). First,
we look at whether the sentencing court committed any significant
procedural error, such as misapplying the guidelines or treating
them as mandatory, failing to consider the
18 U.S.C. § 3553(a)
sentencing factors, choosing a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence. 1
Id.
Second, we examine whether the sentence is substantively
unreasonable in light of the § 3553(a) factors and the totality of the
circumstances. Id. The party appealing a sentence bears the
burden showing that is unreasonable. United States v. Alvarado,
808 F.3d 474, 496 (11th Cir. 2015). The weight given to any
particular § 3553(a) factor is within the district court’s discretion,
and we will not substitute our judgment for that of the district
court. Id. We will reverse 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
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect
the public; (5) the advisory guidelines range; and (6) the need to avoid unwar-
ranted sentence disparities.
18 U.S.C. § 3553(a).
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8 Opinion of the Court 21-14044
sentences dictated by the facts of the case.” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).
A. Procedural Reasonableness
Lewis contends the district court procedurally erred when it
imposed an upward departure under U.S.S.G. § 4A1.3 for
underrepresented criminal history without providing the parties
with advance notice, making the requisite findings, or otherwise
following the proper procedures for imposing the upward
departure.
Before departing upward under a guideline provision such
as U.S.S.G. § 4A1.3, a district court must give the defendant prior
notice that it is considering such a departure. 2 See Fed. R. Crim. P.
32(h); United States v. Hall,
965 F.3d 1281, 1295-96 (11th Cir. 2020).
If, on the other hand, the district court is contemplating varying
upward based on the § 3553(a) sentencing factors, the district court
is not required to give advance notice. Hall, 965 F.3d at 1296 (citing
Irizarry v. United States,
553 U.S. 708, 714-15,
128 S. Ct. 2198, 2202-
03 (2008)). This Court looks to the district court’s “reasoning and
what it said about that reasoning” to determine whether it varied
2
A § 4A1.3 departure from the advisory guidelines range is appropriate if “the
defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). If the district
court departs upward under § 4A1.3, it must give “specific reasons” in writing.
Id. § 4A1.3(c)(1).
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21-14044 Opinion of the Court 9
or departed. Id. at 1296. “Specifically, we look at whether it cited
a specific guidelines departure provision in setting the defendant’s
sentence, or whether its rationale was based on the § 3553(a)
factors and a determination that the guidelines range was
inadequate.” Id. However, “it doesn’t matter whether” the
grounds provided for a variance “might also have fit under a
departure provision,” so long as they are adequately justified as a
variance. Id. at 1297 (stating that although “there is substantial
overlap between” departures and variances, “departures don’t
have dibs over variances”).
Contrary to Lewis’s contention, his 36-month sentence was
the result of an upward variance, not an upward departure. While
the district court’s label is not dispositive, see United States v.
Kapordelis,
569 F.3d 1291, 1316 (11th Cir. 2009), the district court
here reiterated twice that it intended to vary based on the § 3553(a)
factors and not to depart under the Guidelines. The district court
also cited the § 3553(a) factors when it stated it would vary upward,
stressing in particular the need to deter Lewis in the future and to
promote respect for the law. The district court did not refer to
U.S.S.G. § 4A1.3 or in any way suggest that Lewis’s four criminal
history points and resulting criminal history category of III failed to
represent the seriousness of his criminal record. Indeed, the district
court’s concern was not that his past criminal history was
underrepresented, but that a sentence within the advisory
guidelines range would be insufficient to deter Lewis given that his
prior sentence of one year and one day had had no deterrent effect
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10 Opinion of the Court 21-14044
on Lewis whatsoever. Based on the record as a whole, we readily
conclude the district court imposed an upward variance, not an
upward departure.
Lewis argues that before the district court can impose a
variance under the § 3553(a) factors, it must properly calculate the
advisory guidelines range, which includes considering whether any
departures under Chapter 4 of the Sentencing Guidelines are
warranted. See U.S.S.G. § 1B1.1(a)-(c); United States v. Henry,
1
F.4th 1315, 1324 (11th Cir. 2021) (“[A] court must first determine
the guideline range . . . before turning to the applicable factors in
§ 3553(a) and considering whether to vary from the advisory
sentence.”). Thus, according to Lewis, the district court was
required to consider “the extent to which Mr. Lewis’ prior criminal
history may have been substantially underrepresented under
§ 4A1.3 before basing an upward variance on that same factor.”
This Court has concluded that the district court need not
impose a Guidelines enhancement before varying upward based on
the same factor. United States v. Rodriguez,
628 F.3d 1258, 1264
(11th Cir. 2010), abrogated on other grounds by Van Buren v.
United States, 593 U.S. ___,
141 S. Ct. 1648 (2021). In Rodriguez,
the defendant argued that his sentence was procedurally
unreasonable because the district court had varied upward based
on the number of victims without imposing a multiple-victim
enhancement under § 2B1.1(b)(2)(A). Id. The Court in Rodriguez
disagreed. After noting that “a district court can rely on factors in
imposing a variance that it had already considered in imposing an
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enhancement,” the Court reasoned that “there is no requirement
that a district court must impose an enhancement [under the
Guidelines] before granting a variance.” Id. (citing United States v.
Amedeo,
487 F.3d 823, 833 (11th Cir. 2007))
Furthermore, the PSI here stated that there was no basis for
an upward departure under the guidelines. And the PSI’s
guidelines calculations and resulting advisory guidelines range of
18 to 24 months, which the district court adopted without
objection, did not include an upward departure. Only after
calculating the advisory guidelines range of 18 to 24 months did the
district court ask the parties for argument on the “appropriate
sentence” and express concern that a sentence within that range
would not deter Lewis or promote respect for the law.
The district court was not required to explicitly consider and
reject a possible U.S.S.G. § 4A1.3 departure in open court at the
sentencing hearing, especially given that neither the government
nor the probation officer had suggested such a departure was
warranted.
To the extent Lewis argues that the district court could not
vary upward based on factors also covered by a Guidelines
departure provision, that claim is foreclosed by our precedent. As
this Court explained in Hall, any overlap between the grounds for
a variance and the grounds for a guidelines departure is immaterial.
965 F.3d at 1297. “What matters is that the grounds the district
court gave for varying above the guidelines range fit comfortably
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under the § 3553(a) provisions; it doesn’t matter whether they
might also have fit under a departure provision.” Id.
The district court imposed a variance, not a departure.
Therefore, the district court was not required to give Lewis
advance notice or to follow the procedures in § 4A1.3. Lewis has
not shown that his 36-month sentence is procedurally
unreasonable.
B. Substantive Reasonableness
When a district court imposes a sentence outside the
advisory guidelines range, “it must ‘consider the extent of the
deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance.’” United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall v. United States,
552 U.S. 38, 50,
128 S. Ct. 586, 597 (2007)). We must give due
deference to the district court’s determination that the § 3553(a)
factors on the whole justify the extent of the variance, and we do
not require extraordinary circumstances to justify the extent of the
variance or presume that such a sentence is unreasonable. Gall,
552 U.S. at 47, 51, 128 S. Ct. at 594-95, 597; see also United States v.
Rosales-Bruno,
789 F.3d 1249, 1256-57 (11th Cir. 2015).
Here, Lewis has not shown that his 36-month sentence is
substantively unreasonable in light of the record and the § 3553(a)
factors. In less than two years, Lewis was caught in Florida three
times after leaving the Bahamas and traveling by boat with other
migrants into the United States. The first time, Lewis was
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21-14044 Opinion of the Court 13
administratively removed. Three days later, he was caught again
in Florida and admitted captaining a boat smuggling aliens from
the Bahamas to the United States. This second time, Lewis served
a federal sentence of one year and one day for alien smuggling and
illegal reentry. Yet, only seven weeks after his release from federal
custody, Lewis was caught a third time off the Florida coast on a
boat accompanied by Haitian aliens with no entry papers.
Under the circumstances, the district court was entitled to
attach great weight to the factors of promoting respect for the law
and affording adequate deterrence. See United States v.
Overstreet,
713 F.3d 627, 638 (11th Cir. 2013) (“Although the
district court must evaluate all § 3553(a) factors in imposing a
sentence, it is permitted to attach great weight to one factor over
others.” (quotation marks omitted)). And given that a one-year-
and-one-day sentence had failed to deter Lewis from promptly
reentering the United States a third time, the district court’s
decision to impose a 36-month sentence, still well below the 20-
year statutory maximum, was not an abuse of discretion. See
United States v. Croteau,
819 F.3d 1293, 1310 (11th Cir. 2016) (“A
sentence imposed well below the statutory maximum penalty is
another indicator of reasonableness.”).
Lewis contends that the district court engaged in
impermissible “double counting” because the factors it relied on to
impose the upward variance “had already been fully accounted for
in calculating the advisory sentencing range.” As already discussed,
a district court may consider conduct that was used to calculate his
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14 Opinion of the Court 21-14044
advisory guidelines range in deciding whether to impose a variance
based on the § 3553(a) factors. See Rodriguez,
628 F.3d at 1264;
Amedeo,
487 F.3d at 833. Thus, the district court’s consideration
of Lewis’s prior illegal entries and alien smuggling did not
constitute impermissible double counting. We note, in any event,
that the guidelines calculations in fact did not account for the
brazenness and rapidity with which Lewis returned to the United
States a third time despite having already faced one federal
sentence, circumstances that largely drove the district court’s
decision to vary upward.
In sum, we cannot say the district court abused its discretion
when it imposed a 36-month sentence.
III. CONCLUSION
Because Lewis has not shown that his 36-month sentence is
either procedurally or substantively unreasonable, we affirm.
AFFIRMED.
