USCA11 Case: 22-12318 Document: 33-1 Date Filed: 07/26/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12318
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARUS COHEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20069-FAM-1
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2 Opinion of the Court 22-12318
____________________
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Tavarus Cohen appeals his 63-month sentence for posses-
sion of a firearm and ammunition by a convicted felon, in violation
of
18 U.S.C. § 922(g)(1). He contends the district court gave insuf-
ficient weight under
18 U.S.C. § 3553(a) to certain mitigating cir-
cumstances, such as his troubled upbringing and efforts at self-im-
provement, and instead focused too heavily on prior criminal con-
duct, resulting in a substantively unreasonable sentence. After
careful review, we affirm the district court’s sentence.
I. BACKGROUND
A federal grand jury returned an indictment charging Cohen
with one count of possession of a firearm and ammunition as a con-
victed felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Cohen pled guilty under a written plea agreement. Before Cohen’s
sentencing, a probation officer prepared a presentence investiga-
tion report (“PSI”). The PSI provided a description of the offense
conduct, to which Cohen did not object.
In summary, it asserted that Miami police officers arrived on
the scene of an alleged altercation to find Cohen with multiple
small, bloody lacerations on his face. When officers approached,
Cohen initially tried to walk away. But he complied with officers’
instructions to stop.
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22-12318 Opinion of the Court 3
The officers patted Cohen down for weapons. While that
was happening, Cohen voluntarily indicated that he had a gun hol-
stered in his waistline. When the officer checked, sure enough, the
officer found and then removed a loaded Springfield Armory 9-mm
handgun from Cohen’s waistband. Cohen also said he was a con-
victed felon. A records check revealed that Cohen, in fact, had
twenty felony convictions and had not had his right to possess a
firearm restored. At this point, the officers arrested Cohen.
That same day, Cohen was released on bond. But less than
three weeks later, he was arrested again for possession of ammuni-
tion by a convicted felon and possession of cocaine.
For this conduct, the PSI assigned Cohen a base offense level
of 20. But because the PSI recommended finding that Cohen ac-
cepted responsibility, under U.S.S.G. § 3E1.1(a) and (b), the PSI rec-
ommended a reduced offense level of 17.
The PSI also attributed 17 criminal-history points to Cohen,
placing him in the highest criminal-history category of VI. That
criminal history included, among other things, several convictions
for drug crimes, a conviction for possession of a firearm by a con-
victed felon, and a conviction for attempting to bring marijuana
into a prison. The PSI listed also nine prior sentences that were not
counted towards Cohen’s criminal-history points, 1 as well as
1 These include convictions in 2001, 2004, and 2011 for grand theft; convictions
in 2002 for carrying a concealed firearm and unlawful possession of a firearm
by a convicted felon; and convictions in 2002, 2006, and 2009 for drug-related
offenses.
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4 Opinion of the Court 22-12318
charges that either were not prosecuted or were pending. 2 In short,
according to the PSI, Cohen has been arrested 45 times, convicted
of 20 felonies, and sentenced to state prison twice, serving a forty-
two-month sentence in 2009 for felon in possession and a 20-month
sentence in 2013 for introducing contraband into a prison.
With an adjusted offense level of 17 and a criminal-history
category of VI, Cohen’s applicable guidelines range was 51 to 63
months’ imprisonment. The statutory maximum term of impris-
onment that Cohen could have received was ten years.
18 U.S.C.
§ 924(a)(2).
Beyond his criminal behavior, as relevant here, the PSI
noted that Cohen was mainly raised by a single mother. When he
was four or five years old, he was physically abused by his maternal
uncle, who also lived in the house. And Cohen was five when his
mother married his stepfather, who was addicted to controlled sub-
stances during Cohen’s “formative years.” Cohen consumed his
first alcoholic beverage at age 8, smoked marijuana for the first
time at age 13, and uses marijuana daily.
As far as educational skills and employment go, Cohen re-
ceived his GED in 2009, completed a semester of business
2 The then-pending charges were for driving with a suspended license in 2019
and then failing to appear in March 2022, as well as the February 23, 2022,
charges for possession of cocaine and unlawful possession of ammunition by
a convicted felon.
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22-12318 Opinion of the Court 5
management that year, and has owned a silk-screen printing busi-
ness since 2018.
At sentencing, Cohen contended that the district court
should consider his personal growth given his troubled and tumul-
tuous upbringing. Specifically, he asserted that his single-parent
household and abuse led to his long history of substance abuse, and
that his “poor choices” do not “tell the entire story.” As Cohen
described it, he made attempts at self-improvement, including serv-
ing as a mentor in his daughters’ lives, obtaining his GED and col-
lege credits, and finding employment while he was not incarcer-
ated. As to his offense conduct—(once again) being a convicted
felon in possession of a firearm—Cohen maintained he carried fire-
arms to protect himself, and he asked the court to consider that he
took accountability at every stage of the instant offense, showing
respect for the court and law enforcement.
For its part, the government argued that a 63-month sen-
tence was appropriate given Cohen’s criminal history. In particu-
lar, the government emphasized Cohen’s repeated convictions for
possession of firearms as a felon and his continued criminal activity
even while incarcerated—that is, his introduction of marijuana into
prison. The government also pointed out that Cohen was arrested
for possession of cocaine while out on bond for the instant offense
and that the PSI contained many instances of unprosecuted violent
conduct. Based on these circumstances, the government argued
for a sentence at the high end of the guidelines, asserting it would
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6 Opinion of the Court 22-12318
best serve the goals of specific deterrence, protecting the public,
and promoting Cohen’s respect for the law.
The district court explicitly mentioned its obligation to con-
sider all § 3553(a) factors and ultimately imposed a sentence of 63
months’ imprisonment, followed by 3 years of supervised release.
It acknowledged Cohen’s acceptance of responsibility and indi-
cated that it would impose a sentence within the guidelines. 3 But
noting the repeated nature of Cohen’s offenses and that his half-
sisters dealt with a similar upbringing and were able to overcome
the circumstances, the court explained that to protect the public, it
would not impose a sentence at the low end of the guidelines.
On appeal, Cohen argues the district court’s sentence is sub-
stantively unreasonable. He contends that the district court’s focus
on his prior weapon-related offenses was insufficient to account for
the sentence imposed. In Cohen’s view, the 63-month sentence
goes beyond what is necessary to achieve the goals of deterrence,
rehabilitation, and punishment. Cohen argues that he carried fire-
arms for self-defense, not for the purpose of violent crimes. He
urges that the district court failed to consider all the § 3553(a) fac-
tors and this court should vacate his sentence and remand for re-
sentencing.
3 The judge noted he believed Cohen should be punished for longer, but be-
cause of Cohen’s acceptance of responsibility, stated he would sentence Co-
hen within the guidelines.
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22-12318 Opinion of the Court 7
II. DISCUSSION
We review the reasonableness of a sentence for abuse of dis-
cretion. Gall v. United States,
552 U.S. 38, 41 (2007). “Substantive
reasonableness involves examining the totality of the circum-
stances and whether the sentence is supported by the sentencing
factors outlined in § 3553(a).” United States v. Wayerski,
624 F.3d
1342, 1353 (11th Cir. 2010). The challenging party bears the burden
of showing that the sentence is unreasonable in light of the entire
record, the § 3553(a) factors, and the substantial deference afforded
to sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249,
1256 (11th Cir. 2015).
“A district court abuses its discretion and imposes a substan-
tively unreasonable sentence only if it (1) fails to afford considera-
tion to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) com-
mits a clear error of judgment in considering the proper factors.”
Id. (quotation marks omitted). It commits a clear error of judg-
ment when it considers the proper factors but balances them un-
reasonably. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010)
(en banc). But the district court is not required to state on the record
that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors. United States v. Kuhlman,
711
F.3d 1321, 1327 (11th Cir. 2013). Instead, it is enough that the rec-
ord reflects the district court’s consideration of the § 3553(a) fac-
tors. United States v. Cabezas-Montano,
949 F.3d 567, 609 (11th Cir.
2020). Thus, the failure to discuss mitigating evidence does not
necessarily indicate that the district court erroneously ignored or
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8 Opinion of the Court 22-12318
failed to consider this evidence. United States v. Amedeo,
487 F.3d
823, 833 (11th Cir. 2007).
That said, the district court must impose a sentence that is
sufficient, but not greater than necessary, to comply with the pur-
poses listed in § 3553(a)(2), including the need to reflect the serious-
ness of the offense, promote respect for the law, provide just pun-
ishment, adequately deter criminal conduct, protect the public
from the defendant’s future criminal conduct, and effectively pro-
vide the defendant needed training, care or treatment. See
18
U.S.C. § 3553(a)(2). In addition, the court must consider (1) the na-
ture and circumstances of the offense and the history and charac-
teristics of the defendant; (3) the kinds of sentences available; (4)
the guideline sentencing range; (5) any pertinent policy statements;
(6) the need to avoid unwarranted sentencing disparities among de-
fendants with similar records who have been convicted of similar
conduct; and (7) the need to provide restitution to any victims.
18
U.S.C. § 3553(a)(1), (3)-(7).
We “commit[] to the sound discretion of the district court
the weight to be accorded to each § 3553(a) factor.” United States v.
Perkins,
787 F.3d 1329, 1342 (11th Cir. 2015). We will vacate a dis-
trict court’s sentence as substantively unreasonable 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) fac-
tors” as evidenced by a sentence “that is outside the range of rea-
sonable sentences dictated by the facts of the case.” United States v.
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22-12318 Opinion of the Court 9
Goldman,
953 F.3d 1213, 1222 (11th Cir. 2020) (quotation marks
omitted). 4
While we do not apply a presumption of reasonableness to
sentences within the guideline range, we ordinarily expect such a
sentence to be reasonable. United States v. Stanley,
739 F.3d 633, 656
(11th Cir. 2014). And “a sentence imposed well below the statutory
maximum penalty is an indicator of a reasonable sentence.” United
States v. Taylor,
997 F.3d 1348, 1355 (11th Cir. 2021).
Here, the district court did not abuse its discretion, and its
sentence is not substantively unreasonable. The record reflects
that the court did not ignore relevant factors, did not give signifi-
cant weight to an improper factor, and did not clearly err in con-
sidering proper factors. See Rosales-Bruno,
789 F.3d at 1256. Instead,
it examined the totality of the circumstances, and the resulting sen-
tence is supported by the sentencing factors outlined in § 3553(a).
See Wayerski,
624 F.3d at 1353.
Although Cohen claims the district court did not give suffi-
cient weight to certain factors, including his troubled childhood
and rehabilitation efforts, the sentencing transcript shows the court
in fact did acknowledge Cohen’s tough background. The judge
noted he had read the PSI, mentioned Cohen’s childhood and drug-
abuse problems, and looked favorably upon Cohen’s acceptance of
4 The district court may base its findings of fact on undisputed statements in
the PSI. United States v. Bennett,
472 F.3d 825, 832 (11th Cir. 2006). “[F]ailure
to object to allegations of fact in a PSI admits those facts for sentencing pur-
poses.” United States v. Wade,
458 F.3d 1273, 1277 (11th Cir. 2006).
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10 Opinion of the Court 22-12318
responsibility. Even if the district court didn’t explicitly mention
every piece of mitigating evidence, that does not mean it errone-
ously failed to consider it. Amedeo,
487 F.3d at 833. Here, the rec-
ord reflects the court’s consideration of the § 3553(a) factors. See
Cabezas Montano, 949 F.3d at 609.
In declining Cohen’s request to impose a low-end guideline
sentence, the district court noted that not only did Cohen’s siblings
overcome the same circumstances, but also, the court simply
elected to give more significant weight to Cohen’s repeated crimi-
nal history and convictions for possession of firearms as a felon.
Past criminal behavior is not an improper or irrelevant factor.
Rosales-Bruno,
789 F.3d at 1256. And we defer to the district court’s
reasonable assessment of the weight that should be accorded to
each 3553(a) factor. Perkins,
787 F.3d at 1342. Here, the district
court’s determination that Cohen’s criminal history and repeated
convictions for possession of firearms as a felon outweighed Co-
hen’s mitigating circumstances was not unreasonable. The 63-
month sentence imposed is also within the guidelines range and
well below the statutory minimum of ten years, both of which
serve as indicators of a reasonable sentence. Stanley,
739 F.3d at
656; Taylor, 997 F.3d at 1355. We are left with no definite and firm
conviction that the district court committed a clear error. See Gold-
man, 953 F.3d at 1222.
In sum, the district court did not impose a substantively un-
reasonable sentence. The court considered the totality of the cir-
cumstances—including Cohen’s lengthy criminal history and prior
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22-12318 Opinion of the Court 11
gun-related offenses, properly relied on his unobjected-to conduct
in the PSI, and did not commit a clear error of judgment when it
weighed the § 3553(a) factors.
For the foregoing reasons, the judgment of the district court
is affirmed.
AFFIRMED.
