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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11347
Non-Argument Calendar
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D.C. Docket No. 3:19-cr-00100-RV-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID DENVER HOLLAND,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(December 17, 2020)
Before MARTIN, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
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Appellant, David Holland, appeals the district court’s imposition of his 60-
month sentence for his conviction for being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Holland argues that the
district court improperly calculated his base offense level after finding that his
Florida state conviction for second-degree arson qualified as a “crime of violence”
under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2. The government responds that it is
not necessary for this court to consider Holland’s guideline challenge because any
sentencing error was harmless. After reviewing the record and reading the parties’
briefs, we agree with the government and affirm Holland’s 60-month sentence.
I.
In August 2019, a federal grand jury in the Northern District of Florida
charged Holland with one count of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Following a hearing, Holland pled
guilty pursuant to a written plea agreement. The presentence investigation report
(“PSI”) stated the offense conduct: Florida police served an arrest warrant on
Holland at his father’s home and discovered drugs on Holland’s person and inside
his room, along with a loaded handgun and a tray of ammunition in his immediate
vicinity. Upon later examination, authorities discovered that the firearm had
traveled in or affected interstate commerce. The authorities also learned that
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Holland’s right to own or possess a firearm had not been restored at the time of the
offense, and Holland had seven prior felony convictions.
The PSI initially assigned Holland a base offense level of 20 but after
several adjustments and deductions due to his acceptance of responsibility,
Holland’s total offense level was 21. The PSI described Holland’s prior
convictions, and based on these convictions, calculated his criminal history score at
21, which set his criminal history category at VI. Based on this offense level and
criminal history category, the PSI found Holland’s guideline imprisonment range
to be 77 to 96 months, subject to a statutory maximum of 10 years.
Prior to sentencing, Holland objected that the PSI improperly calculated his
base offense level because it found that his 2000 second-degree Florida arson
conviction, pursuant to Florida Statute § 806.01(2), was a crime of violence under
U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a). This classification increased his base
offense level from 14 to 20. Holland first argued that his second-degree arson
conviction did not qualify as a crime of violence under the elements clause of
U.S.S.G. § 4B1.2(a)(1) because the Florida statute did not involve as an element of
the offense the use of physical force against another person as required to be
considered a crime of violence. Second, Holland claimed that his state conviction
did not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(2)’s enumeration
clause because the Florida statute was much broader than the generic offense.
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Holland reiterated his objections at sentencing, and the government opposed the
objections.
The district court overruled Holland’s objections, but following an exchange
not relevant to the present appeal, the district court removed the 4-level adjustment
under U.S.S.G. § 2K2.1(b)(6), which decreased his offense level to 17 and his
sentencing range to 51 to 63 months. After arguing mitigation, Holland requested
that the district court sentence him within the guideline range to no more than 60
months. The district court sentenced Holland to 60 months’ imprisonment,
followed by three years of supervised release.
In imposing the sentence, the district court stated that it considered the
relevant sentencing factors under 18 U.S.C. § 3553(a) and found that the 60-month
sentence was appropriate in this case. The district court noted that Holland had
some good characteristics but needed to quit making bad decisions; that the
sentence was intended to deter him from committing more crimes in the future; and
that Holland needed to participate in a drug abuse program once incarcerated.
Importantly, the district court stated that even if it had agreed with Holland’s
argument about his second-degree arson conviction, it still would have sentenced
him to at least 60 months’ imprisonment because Holland was a repeat offender:
Holland had been convicted of the same offense before and had been before the
same district court. (R. Doc. 51 at 20-64.)
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II.
This court normally reviews de novo whether a defendant’s prior conviction
qualifies as a crime of violence under the Sentencing Guidelines. United States v.
Dixon,
874 F.3d 678, 680 (11th Cir. 2017). When a district court may have erred
in sentencing, but the court indicates that it would have imposed the same sentence
without the error, and the ultimate sentence is substantively reasonable, we need
not remand. See United States v. Keene,
470 F.3d 1347, 1348–50 (11th Cir. 2006);
see also United States v. Goldman,
953 F.3d 1213, 1221 (11th Cir. 2020). In
reviewing sentences for substantive reasonableness, we “consider the totality of the
circumstances and evaluate whether the sentence achieves the sentencing purposes
stated in [18 U.S.C.] § 3553(a).” United States v. Sarras,
575 F.3d 1191, 1219
(11th Cir. 2009). However, the weight given to any specific 18 U.S.C. § 3553(a)
factor is committed to the sound discretion of the district court. United States v.
Clay,
483 F.3d 739, 743 (11th Cir. 2007) (citations omitted).
The district court need not specifically address every mitigating factor raised
by the defendant for this court to determine that the sentence is substantively
reasonable. United States v. Scott,
426 F.3d 1324, 1329–30 (11th Cir. 2005).
Additionally, we do not apply a presumption of reasonableness to sentences within
the Guideline range, but we ordinarily expect such a sentence to be reasonable.
United States v. Stanley,
739 F.3d 633, 656 (11th Cir. 2014). We consider the
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district court’s imposition of a sentence well below the statutory maximum penalty
to be an indicator of reasonableness. United States v. Croteau,
819 F.3d 1293,
1310 (11th Cir. 2016). After evaluating a sentence for reasonableness, we will
only vacate a defendant’s sentence if we “are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.” United States v.
Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
III.
Under Keene, we need not reach the merits of Holland’s arguments
regarding the classification of his Florida second-degree arson conviction because
the record demonstrates that any sentencing error was harmless. The district court
stated at the sentencing hearing that it would have sentenced Holland to “at least”
60 months’ imprisonment regardless of whether the second-degree arson
conviction was a “crime of violence.” (R. Doc. 51 at 63–64.) In a case like this,
where the district court states that the resolution of a disputed guideline issue
would make no difference to the sentence imposed, we have noted that any
guideline error is harmless as long as the sentence is reasonable.
Keene, 470 F.3d
at 1349.
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To assess whether a sentence is reasonable, we consider the § 3553(a)
factors as well as the guideline range.
Id. at 1350. The burden of establishing that
the sentence is unreasonable in light of these factors lies with Holland. United
States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). Holland cannot meet his
burden of showing that his 60-month sentence is substantively unreasonable. First,
the sentence is well below the statutory maximum of 120 months’ imprisonment,
which strongly indicates that the sentence is reasonable. See United States v.
Nagel,
835 F.3d 1371, 1377 (11th Cir. 2016) (“The sentence is also significantly
less than the applicable statutory maximum of life in prison, which points strongly
to reasonableness.”). Second, the record confirms that the district court considered
the § 3553(a) factors in imposing the 60-month sentence.
In addition, the PSI noted that Holland’s criminal history included 13 prior
convictions, including convictions for arson, possession of numerous controlled
substances, and a battery, as well as a previous federal conviction for possession of
a firearm by a convicted felon where the same district court sentenced Holland to
37 months’ imprisonment. The district court’s concerns about specific deterrence
and recidivism were well founded, and it cited Holland’s status as “repeat”
offender as the prevailing reason why it would not impose a sentence below 60
months regardless of the guideline range. (Doc. 51 a 63–64.) The record also
indicates that the district court considered and accounted for mitigating factors.
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Furthermore, it is worth noting that Holland asked the district court to sentence
him to 60 months’ imprisonment.
Based on our review of the record, we conclude that the district court’s
imposition of a 60-month sentence in this case was substantively reasonable. The
district court considered all relevant § 3553(a) sentencing factors, the guideline
range, mitigating factors, and Holland’s own sentencing request. Accordingly, for
the aforementioned reasons, we affirm Holland’s 60-month sentence.
AFFIRMED.
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