United States v. Gary Baptiste

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14268
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY BAPTISTE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:10-cr-60077-FAM-1
____________________
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2 Opinion of the Court 21-14268
Before JILL PRYOR, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
After the district court granted Gary Baptiste’s authorized
successive 28 U.S.C. § 2255 motion, vacated two of his counts of
conviction, and resentenced him, Baptiste appeals the substantive
reasonableness of his total sentence of 300 months’ imprisonment
for conspiracy to commit Hobbs Act robbery and possession of a
firearm by a convicted felon. On appeal, Baptiste argues that the
district court abused its discretion in weighing the nature and cir-
cumstances of the offense in light of the mitigating factors of his
rough upbringing, his post-sentence rehabilitation, the fact that no
one was actually harmed, and the differences in sentences between
Baptiste and his codefendants. After careful review, we affirm.
We review the sentence a district court imposes for “reason-
ableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). In
reviewing the “‘substantive reasonableness of [a] sentence” we
consider the “‘totality of the circumstances.’” Id. at 1190 (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). The district court
must impose a sentence “sufficient, but not greater than necessary,
to comply with the purposes” listed in 18 U.S.C. § 3553(a). 1 The
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 for
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21-14268 Opinion of the Court 3
court must consider all of the § 3553(a) factors, but it may give
greater weight to some factors over others -- a decision which is
within its sound discretion. United States v. Rosales-Bruno, 789
F.3d 1249, 1254 (11th Cir. 2015). Indeed, the district court main-
tains discretion to give heavier weight to any of the § 3553(a) fac-
tors or combination of factors than to the guideline range. Id. at
1259. We have “underscored” that we must give “due deference”
to the district court to consider and weigh the proper sentencing
factors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir.
2018) (quotation omitted).
However, a sentence may be substantively unreasonable
when a court “(1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an
improper or irrelevant factors, or (3) commits a clear error of judg-
ment in considering the proper factors.” United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted). A
sentence that suffers from one of these symptoms is not per se un-
reasonable; rather, we must examine the totality of the circum-
stances to determine the sentence’s reasonableness. Pugh, 515 F.3d
the sentence imposed to reflect the seriousness of the offense, to promote re-
spect for the law, and to provide just punishment for the offense; (3) the need
for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or voca-
tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
tencing Guidelines range; (8) the pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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4 Opinion of the Court 21-14268
at 1192. We will vacate a sentence only if we are left with the “def-
inite 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 is outside the range of reasonable sentences dictated
by the facts of the case. Id. at 1191. The party challenging the sen-
tence bears the burden of establishing that it is unreasonable based
on the facts of the case and the 18 U.S.C. § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
In considering the need to avoid unwarranted sentence dis-
parities under 18 U.S.C. § 3553(a)(6), a court first considers whether
the defendant is similarly situated to the defendants to whom he
compares himself. United States v. Azmat, 805 F.3d 1018, 1048
(11th Cir. 2015). Accordingly, the district court should not draw
comparisons to cases involving defendants who were convicted of
less serious offenses, pleaded guilty, or lacked extensive criminal
histories, if those things are not true of the defendant. United
States v. Jayyousi, 657 F.3d 1085, 1118 (11th Cir. 2011).
We must give “due deference” to the district court’s decision
that the § 3553(a) factors justify a variance. Gall, 552 U.S. at 51.
“The fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id. Thus, there is a range of reason-
able sentences from which the district court may choose. United
States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014).
We do not presume a sentence outside the guideline range
is unreasonable. Irey, 612 F.3d at 1187. But the district court’s
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21-14268 Opinion of the Court 5
justification for a variance must be “sufficiently compelling to sup-
port the degree of the variance.” Id. at 1186–87 (quotation omit-
ted). A sentence that is well below the statutory maximum for the
crime is an indicator of a reasonable sentence. United States v.
Dougherty, 754 F.3d 1353, 1364 (11th Cir. 2014).
District courts need not explicitly address “each of the
§ 3553(a) factors or all of the mitigating evidence,” so long as the
record reflects the court considered the factors and the parties’ ar-
guments. United States v. Taylor, 997 F.3d 1348, 1354 (11th Cir.
2021). Even if a particular factor is already accounted for by the
Guidelines, district courts maintain discretion to use this factor to
justify an upward variance. See United States v. Goldman, 953 F.3d
1213, 1222 (11th Cir. 2020).
Here, Baptiste has not shown that the district court imposed
a substantively unreasonable sentence. As the record reflects, Bap-
tiste was convicted in 2011 of conspiracy to commit Hobbs Act rob-
bery, in violation of 18 U.S.C. § 1951(a) (Count 1); conspiracy to
use and carry a firearm and ammunition during and in relation to
a crime of violence and a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A), (o) (Count 4); carrying a firearm and ammu-
nition during and in relation to a crime of violence and a drug-traf-
ficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count 5);
and possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (Count 6). The convictions arose out of a re-
verse-sting operation by the Broward County Sheriff’s Office in-
volving the robbery of a fictitious stash house of cocaine. At
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6 Opinion of the Court 21-14268
sentencing, the district court calculated Baptiste’s guideline range
to be 262 to 327 months’ imprisonment, plus a mandatory 60-
month consecutive term for Count 5, and imposed an upward-var-
ying sentence of 660 months’ imprisonment.
In 2019, Baptiste filed an application with our Court for
leave to file a successive § 2255 motion challenging the validity of
his convictions in Counts 4 and 5 -- involving the use or carrying of
a firearm and ammunition during and in relation to a crime of vio-
lence and a drug-trafficking crime -- based on a new rule of consti-
tutional law announced in United States v. Davis, 139 S. Ct. 2319
(2019). After we granted the motion, the district court vacated the
convictions on Counts 4 and 5, and Baptiste’s new guideline range
was 121 to 151 months’ imprisonment.
At the resentencing hearing, the district court described the
offense as a “very, very, very serious violent offense,” which could
have resulted in much greater consequences of killing someone.
The court expressed a need to protect the public and its concern
that Baptiste would recidivate, and considered the government’s
arguments that Baptiste was the leader of the conspiracy, had re-
cruited his six codefendants, had been arrested with four bullet-
proof vests, four firearms, and 126 rounds, had obstructed justice,
and had told an undercover agent that he’d “sleep better if I kill the
two guards at the stash house.” As for mitigating factors, the dis-
trict court considered the non-violent nature of Baptiste’s prior
grand theft conviction, the fact that reverse-sting operations were
rarely conducted anymore because they targeted poor, black
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21-14268 Opinion of the Court 7
people, the lighter sentences his codefendants received, and his re-
habilitation efforts in prison, which the government partially dis-
puted. Initially inclined to impose a 360-month sentence, the dis-
trict court ultimately imposed a 300-month sentence. In so doing,
the court explained that it believed an upward variance was appro-
priate “for the same reasons that [it] mentioned before [at the orig-
inal sentencing],” which included its opinion that Baptiste’s offense
“is about as serious, short of murder, as it can get” and that Baptiste
had said he was willing to kill the stash house guards.
On this record, we cannot say that the district court abused
its discretion in determining that an upward variance was war-
ranted in light of the nature and circumstances of the offense and
the needs to promote respect for the law, provide adequate deter-
rence, and protect the public. 18 U.S.C. § 3553(a)(2)(B), (2)(C). Fur-
ther, even though the court did not need to comment on all of Bap-
tiste’s mitigating factors, Taylor, 997 F.3d at 1354, it did hear his
mitigating arguments and address the rehabilitative programs he
completed, his rough upbringing, and that no one was harmed.
Upon finding it “impressive” that multiple people in the prison be-
lieved Baptiste had done enough to rehabilitate himself, the court
said it was sentencing him to five years on Count 6 instead of the
ten years it could have imposed. The court then expressed skepti-
cism of Baptiste’s mitigating argument that no one was actually
harmed in the commission of his crime, noting the seriousness of
the crime and the need to protect the public. In attaching greater
weight to the aggravating factors than the mitigating ones, the
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8 Opinion of the Court 21-14268
court acted well within its discretion. Rosales-Bruno, 789 F.3d at
1254. In addition, we recognize that the guideline range already
accounted for the seriousness of the offense, his obstruction, and
his leading role, but the district court was allowed, under our case
law, to consider factors that the guideline range already encom-
passed in deciding to impose a variance. Goldman, 953 F.3d at
1222. And although the 300-month sentence was above the guide-
line range, it was still below the aggregate statutory maximum of
360 months, an indicator of reasonableness. Dougherty, 754 F.3d
at 1364.
Finally, we are unpersuaded by Baptiste’s argument that his
sentence was unreasonable because it created unwarranted sen-
tencing disparities. As we’ve held, there can be no unwarranted
sentencing disparities among codefendants who are not similarly
situated, and the district court found his codefendants not to be
similarly situated. See Azmat, 805 F.3d at 1048. Among other
things, the district court noted that one codefendant had entered a
plea, another had only been convicted of one count, and, unlike all
his codefendants, Baptiste had not admitted to his actions, had been
the leader and had obstructed justice. Jayyousi, 657 F.3d at 1118.
Because Baptiste has not shown that his 300-month sentence
was substantively unreasonable, we affirm.
AFFIRMED.