United States v. Antonio Bizzell

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14363 ELEVENTH CIRCUIT
JUNE 22, 2012
Non-Argument Calender
JOHN LEY
________________________
CLERK
D.C. Docket No. 6:10-cr-00145-MSS-KRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DEON BIZZELL,
Defendant - Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(June 22, 2012)
Before CARNES, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Antonio Bizzell appeals his 780-month total sentence for drug trafficking
and firearm convictions. He contends that his sentence is substantively
unreasonable.
I.
A federal grand jury returned a second superseding indictment charging
Bizzell with ten crimes: one count of conspiracy to possess with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846; three
counts of possession with intent to distribute cocaine base in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C); three counts of carrying and using a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)–(2); and
three counts of possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Bizzell pleaded not guilty, and a jury returned
a verdict finding him guilty on each count.
The presentence investigation report grouped together the convictions for
drug conspiracy, drug possession, and possession of a firearm by a convicted
felon, see United States Sentencing Guidelines § 3D1.2(d) (Nov. 2010), and it
recommended a total offense level of 32. It also recommended a criminal history
category of IV. Combined with Bizzell’s total offense level of 32, the result was a
guidelines range of 168 to 210 months in prison for those convictions.
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The PSR also stated that a person convicted of using a firearm in relation to
a drug trafficking crime is subject to a mandatory minimum 5-year consecutive
sentence on the first count of conviction and to a 25-year consecutive sentence on
each “second or successive conviction.” See 18 U.S.C. § 924(c)(1)(A)(i), (C)(i),
(D)(ii). Because Bizzell was convicted of three counts of possessing a firearm in
relation to a drug trafficking crime, he is subject to mandatory minimum
consecutive sentences of 60 months on the first § 924(c) count, 300 months on the
second, and another 300 months on the third—a total of 660 months. Those
consecutive sentences became the guidelines range for the § 924(c) counts as well.
See U.S.S.G. § 2K2.4(b). So his total guidelines range was 828 to 870 months for
all ten convictions.
Bizzell did not object to the PSR. He asked the court to impose a 0-month
sentence on the seven non-18 U.S.C. § 924(c) counts in light of the total 660-
month sentence the court was required to impose on the three § 924(c) counts.
The district court adopted the PSR, varied downward, and imposed a 780-month
total sentence: 120-month concurrent sentences on each non-§ 924(c) count; a 60-
month consecutive sentence on the first § 924(c) count; a 300-month consecutive
sentence on the second § 924(c) count; and another 300-month consecutive
sentence on the third § 924(c) count.
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Explaining the sentence, the district court stated that it had considered the
factors and purposes listed in 18 U.S.C. § 3553(a). The court also stated that it
had to impose a “Draconian” 660-month sentence for the three 18 U.S.C. § 924(c)
convictions and that it had considered Bizzell’s arguments for a 0-month sentence
on the non-§ 924(c) counts. Even so, the court concluded that the 780-month
“sentence [was] sufficient, but not greater than necessary to comply with the
statutory purposes of sentencing,” and it based the slight downward variance on
Bizzell’s troubled childhood, drug dependency, and remorse. The court, however,
rejected Bizzell’s request for a 0-month sentence on the non-§ 924(c) counts,
reasoning: “[M]y decision not to simply ignore the underlying drug offenses is
borne out of the notion that other defendants appear before the Court on drug
offenses not facing any gun offenses, and I can’t legitimately say to them they
should be punished for their drug offenses and he shouldn’t . . . .”
II.
Bizzell appeals his 780-month total sentence, contending that it is
substantively unreasonable.1 He argues that the district court did not properly
1
Bizzell also contends that the court should have ordered that a sentence for one of the §
924(c) counts run concurrently to the consecutive sentences for the other two § 924(c) counts.
As Bizzell recognizes, however, that contention is foreclosed by our precedent. See United
States v. Wright, 33 F.3d 1349, 1350 (11th Cir. 1994) (“The plain language of the statute
expressly states that a term of imprisonment imposed under section 924(c) cannot run
concurrently with any other term of imprisonment, period. No exceptions are provided.”).
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consider the severity of the 660-month sentence it was required to impose on the
three § 924(c) convictions. If it had done so, Bizzell argues, it would have
imposed a lower total sentence.
“Our substantive reasonableness review is guided by the factors in 18
U.S.C. § 3553(a).” United States v. White, 663 F.3d 1207, 1217 (11th Cir. 2011).
The district court is required to impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in that statutory
provision. 18 U.S.C. § 3553(a). Those purposes include the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment of
the offense, deter criminal conduct, protect the public from the defendant’s future
criminal conduct, and provide the defendant with needed educational or vocational
training or medical care. Id. § 3553(a)(2). Among other factors, the district court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guidelines range, and the need to
avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6).
“The burden of establishing that a sentence is unreasonable lies with the
party challenging it.” White, 663 F.3d at 1217. “We will vacate a sentence for
substantive unreasonableness ‘if, but only if, we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
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the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.’” Id. (quoting United States
v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)).
Bizzell has not shown that his sentence is substantively unreasonable. His
780-month total sentence is below his guidelines range of 828 to 870 months, and
we usually expect a below-the-guidelines sentence to be reasonable. See White,
663 F.3d at 1217. The district court stated that it considered the § 3553(a) factors
and Bizzell’s arguments for a 0-month sentence on the non-§ 924(c) counts, which
means it considered his argument that the 660-month sentence on the § 924(c)
convictions was enough to comply with 18 U.S.C. § 3553(a). The court
concluded, however, that the need to avoid a potential sentencing disparity
resulting from a 0-month sentence on the underlying drug convictions outweighed
the “Draconian” nature of the § 924(c) sentences. That conclusion does not render
Bizzell’s sentence unreasonable.
AFFIRMED.
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