United States v. Justin Charles Arnold

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12285
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN CHARLES ARNOLD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cr-00011-HL-TQL-1
____________________
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2 Opinion of the Court 21-12285
Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
Justin Charles Arnold appeals his 105-month sentence fol-
lowing his conviction for one count of possession of a firearm by a
felon. He raises two issues on appeal. First, he contends that the
District Court erred by failing to depart downward by two levels
under U.S.S.G. § 5K2.0(a)(2)(B) for mitigating circumstances not
otherwise taken into account by the guidelines, and by failing to
explain why it would not do so. Second, he asserts that his sentence
is substantively unreasonable, and the Court should have varied
downward from the applicable guideline range. After careful re-
view, we affirm the District Court’s sentence.
I.
On November 15, 2018, local law enforcement officers went
to Arnold’s residence to complete a probation compliance check.
During a search of Arnold’s bedroom, officers discovered a Smith
& Wesson 9mm semiautomatic handgun and ten rounds of 9mm
ammunition. When asked if the gun was his, Arnold stated, “yes
and no” and admitted to knowing the handgun was in the closet
and that he was a convicted felon. On March 10, 2020, a federal
grand jury in the Middle District of Georgia indicted Arnold on one
count of a possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1) and 924(a). After an initial plea of not guilty, Ar-
nold pled guilty without the benefit of a plea agreement.
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21-12285 Opinion of the Court 3
The presentence investigation report (“PSI”) assigned Ar-
nold a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2) because
he had two prior felony convictions for crimes of violence. It added
two levels under U.S.S.G. § 2K2.1(b)(4)(A) because the firearm was
stolen and subtracted three levels for acceptance of responsibility
under U.S.S.G. §§ 3E1.1(a) and (b). This resulted in a total offense
level of 23.
The PSR found that Arnold qualified for a criminal history
category of VI based on 14 criminal history points. These included
(1) two criminal history points for a 2009 conviction for carrying a
concealed firearm; (2) three points for a 2010 conviction for aggra-
vated assault; (3) three points for a 2012 conviction for aggravated
assault/family violence; (4) two points for a 2018 conviction for
simple battery/family violence; and (5) two points for a 2019 con-
viction for criminal damage to property.
Arnold’s total offense level of 23 and criminal history cate-
gory of VI resulted in a guideline imprisonment range of 92 to 115
months. Arnold did not object to the PSI prior to sentencing. He
did, however, seek a downward variance and departure in a sen-
tencing memorandum. He explained that he was the fourth
youngest of six siblings and was raised without a father. He de-
scribed how he had joined a gang at a young age and began abusing
alcohol at the age of 17. He conceded that he had been in and out
of “petty” trouble but argued that he had begun turning his life
around when his mother died in 2020. He noted that he had
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4 Opinion of the Court 21-12285
accepted responsibility for his behavior and had been a “model de-
tainee” while incarcerated in pretrial detention.
Arnold also stated in his memorandum that he expected the
government to move for, and the Court to grant, a two-point re-
duction of his offense level under U.S.S.G § 5K2.0(a)(2)(B), alt-
hough he did not say why he qualified for such a reduction. Pur-
suant to § 5K2.0(a)(2)(B), a departure may be warranted in the ex-
ceptional case in which there are present circumstances that the
Commission has not identified in the guidelines but are neverthe-
less relevant in determining an appropriate sentence.
At sentencing, neither the Government nor Arnold made
objections to the PSI. Arnold made the same arguments he had
made in his sentencing memorandum and also argued that the
court should apply a two-level reduction under § 5K2.0(a)(2)(B), as
that reduction had been offered to other defendants during the
COVID-19 jury trial moratorium in an effort to decrease the case
backlog. Arnold admitted, however, that the Government would
not formally make that motion in his case because he had not
waived the right to appeal. Arnold argued that to deny him the
reduction would amount to disparate treatment.
The Government argued that Arnold had a “deplorable”
criminal history score and criminal history category, and that a
two-level reduction under § 5K2.0(a)(2)(B) was inapplicable be-
cause Arnold did not waive his right to appeal. The Government
also noted that after his indictment in this case, Arnold had thrown
a brick through a McDonald’s restaurant window because he was
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21-12285 Opinion of the Court 5
angry with his girlfriend. The Government asserted that a within-
guideline range sentence was appropriate.
In announcing Arnold’s sentence, the District Court stated:
I will say initially, Mr. Arnold, that your prior record
is very concerning to the Court. The presentence re-
port has been prepared, filed, considered, and ac-
cepted, and you are adjudicated guilty of the one-
count indictment. The advisory sentencing range is
92 to 115 months considering an offense level of 23
and a criminal history category of VI. The Court has
considered the advisory sentencing range and the sen-
tencing factors found at 18 U.S.C. § 3553(a) and has
made an individualized assessment based on the facts
presented.
The District Court sentenced Arnold to 105 months’ impris-
onment and three years of supervised release. The Court did not
expressly address Arnold’s request for a downward departure or a
downward variance. The Court then asked if either party had any
objections. Arnold objected only to the substantive reasonableness
of the sentence and did not ask the court to provide an explanation
for its refusal to award a downward departure or variance. Arnold
now appeals.
II.
A.
Arnold first argues that the District Court abused its discre-
tion when it failed to depart downward under U.S.S.G. §
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6 Opinion of the Court 21-12285
5K2.0(a)(2)(B). Arnold further argues that the District Court com-
mitted procedural error when it did not discuss why it would not
grant his request for the Covid-19 two-level reduction.
In United States v. Pressley, 345 F.3d 1205, 1209 (11th Cir.
2003), we explained that:
Review of sentencing guidelines departure decisions
is governed by different rules depending on whether
the district court has chosen to depart or not to de-
part. We may not review at all the district court’s dis-
cretionary decision not to depart from the guidelines’
sentence, but we review de novo the question of
whether the district court erroneously believed it
lacked authority to depart. United States v. Mignott,
184 F.3d 1288, 1290 (11th Cir. 1999) (per curiam). Not
only do we examine whether the district court in fact
believed it lacked authority to depart, but we also re-
view whether, if the district court held such a belief,
it was based on legal error.
While we have stated that “it would facilitate review if sen-
tencing judges would state on the record that they believe they
have or do not have the authority to depart,” such a statement is
not required. United States v. Dudley, 463 F.3d 1221, 1228 (11th
Cir. 2006). Moreover, when nothing in the record indicates other-
wise, we assume that the district court understood it had the au-
thority to depart. Id.Here, Arnold has abandoned any claim that the District
Court incorrectly believed it did not have the power to depart by
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21-12285 Opinion of the Court 7
not presenting it in his briefing on appeal. Sapuppo v. Allstate Flor-
idan Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014). Moreover, be-
cause nothing in the record indicates that the District Court did not
believe it had the power to depart, we decline to review Arnold’s
claim to the extent that he requests review of the District Court’s
discretionary decision not to depart. Dudley, 463 F.3d at 1228.
With respect to Arnold’s claim of procedural error, we note
that Arnold did not object below to the District Court’s failure to
explain the reasons for denying his departure request. As such, we
review his procedural claim only for plain error. United States v.
Henderson, 409 F.3d 1293, 1307 (11th Cir. 2005). Under plain error
review, we may correct an error where the defendant demon-
strates (1) an error occurred; (2) the error was plain; and (3) the
error affected the defendant’s substantial rights. Rosales-Mireles v.
United States, 128 S. Ct. 1897, 1904–05, 1908–09 (2018). An error is
plain if it is clearly contrary to settled law at the time of sentencing
or at the time of appellate consideration. United States v. Shelton,
400 F.3d 1325, 1330–31 (11th Cir. 2005). A plain error affects sub-
stantial rights if it was prejudicial, meaning that the error “actually
made a difference” in the defendant’s sentence. Shelton, 400 F.3d
at 1332 (quotation marks omitted). If an appellate court has to
speculate about whether the result would have been different, the
defendant has not met the burden to show that substantial rights
have been affected. United States v. Rodriguez, 406 F.3d 1261, 1275
(11th Cir. 2005).
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8 Opinion of the Court 21-12285
Although the District Court may have erred in failing to pro-
vide an explanation for its denial of Arnold’s request for a depar-
ture, 1 Arnold has not shown that any error in this regard affected
his substantial rights. To find error, we would have to speculate
that, by giving a more detailed explanation of its reasons for not
departing, the District Court would have either incorrectly con-
cluded it lacked power to depart—making its decision reviewable
in this Court—or would have chosen to depart—giving Arnold a
lesser sentence. In other words, we would have to engage in pure
speculation to find that the District Court’s error affected his sub-
stantial rights. As a result, Arnold has not met his burden in show-
ing that his substantial rights have been affected.
B.
Arnold also argues that his sentence is substantively unrea-
sonable. He argues that the District Court, through its failure to
1 A procedural error can include “failing to adequately explain the chosen sen-
tence.” United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir. 2016). When
explaining a sentence, the district court need not provide a lengthy explanation
but must “set forth enough to satisfy the appellate court that [it] has consid-
ered the parties’ arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127
S. Ct. 2456, 2468 (2007). If a party presents a nonfrivolous argument for a
sentence outside the guideline range, the court should explain why it has re-
jected the argument, although the length of the explanation depends on the
circumstances. Id. at 357, 127 S. Ct. at 2458. Here, although the District Court
was not required to discuss, at length, Arnold’s departure-related arguments,
it did not address any of them and did not assure him that it had reviewed his
arguments before imposing a sentence.
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21-12285 Opinion of the Court 9
grant a two-level reduction under § 5K2.0(a)(2)(B), created “unwar-
ranted sentencing disparities” within the Middle District of Geor-
gia. Arnold also takes issue with the District Court’s strong
weighting of his prior criminal history, alleging that it amounted to
an unreasonable reliance on one § 3553(a) factor. We review the
substantive reasonableness of a sentence under a deferential abuse-
of-discretion standard, considering the totality of the circum-
stances. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007).
Section 3553(a) requires that the district court “shall impose
a sentence sufficient, but not greater than necessary,” to accom-
plish multiple goals, including to: reflect the seriousness of the of-
fense; promote respect for the law; provide just punishment for the
offense; afford adequate deterrence to criminal conduct; and pro-
tect the public from further crimes of the defendant. 18 U.S.C. §
3553(a), (2)(A)-(C). The district court is required to evaluate all the
§ 3553(a) factors, but the weight accorded to each factor is within
the sound discretion of the district court. United States v. Ramirez-
Gonzalez, 755 F.3d 1267, 1272–73 (11th Cir. 2014).
Here, the District Court did not abuse its discretion. While
Arnold argues he received a disparate sentence compared to other
defendants, there is nothing in the record that could establish any
specific sentence disparities. Moreover, Arnold’s sentence is within
the applicable guideline range and well below the statutory maxi-
mum penalty, indicating reasonableness. United States v. Hunt,
526 F.3d 739, 746 (11th Cir. 2008); United States v. Croteau, 819
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10 Opinion of the Court 21-12285
F.3d 1239, 1310. The District Court was also within its broad dis-
cretion to give substantial weight to Arnold’s lengthy criminal his-
tory. Rosales-Bruno, 789 F.3d at 1261 (11th Cir. 2016). Therefore,
even if we might have reached a different outcome, we will not
disturb the district court’s total sentence, which was within “the
ballpark of permissible outcomes.” Rosales-Bruno, 789 F.3d at
1254 (quotation marks omitted).
IV.
For the foregoing reasons, the District Court’s sentence is
AFFIRMED.