United States v. James Higgs, Jr.

USCA11 Case: 20-14665 Date Filed: 06/01/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14665
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HIGGS, JR.,
a.k.a. Hammer,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00092-WFJ-AEP-1
____________________
USCA11 Case: 20-14665 Date Filed: 06/01/2022 Page: 2 of 3
2 Opinion of the Court 20-14665
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Thomas Burns, appointed counsel for James Higgs, Jr., in
this direct criminal appeal, has moved to withdraw from further
representation of Mr. Higgs and filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Our independent review of the en-
tire record reveals that counsel’s assessment of the relative merit of
the appeal is correct.
The district court imposed a 33-month upward variance and
sentenced Mr. Higgs to the statutory maximum of 120 months for
his felon-in-possession conviction. The court stated that it was var-
ying upwards “for public safety” and explained that (1) Mr. Higgs
had been incarcerated for 12 of the last 19 years and (2) he had shot
two people, including an innocent bystander. The court did not,
however, mention or discuss any of the other 18 U.S.C. § 3553(a)
factors.
On this record, the district court’s reasons for the upward
variance, though brief, were sufficient. So there was no procedural
error. See Rita v. United States, 551 U.S. 338, 356-58 (2007). And
under the applicable abuse of discretion standard the 120-month
sentence was also substantively reasonable. See, e.g., United States
v. Thorne, 896 F.3d 861, 863-66 (8th Cir. 2018) (affirming 83-month
upward variance, to sentence of 120 months, for felon-in-posses-
sion defendant who threatened to kill others and had a significant
USCA11 Case: 20-14665 Date Filed: 06/01/2022 Page: 3 of 3
20-14665 Opinion of the Court 3
criminal history). As noted, this was not a run-of-the-mill felon-in-
possession case. Mr. Higgs discharged a firearm and shot two peo-
ple. And he had previously been convicted of being an accessory
after the fact to a murder (for which he received a 15-year sentence)
and of assault and battery on a fellow inmate (with injuries requir-
ing surgery). A district court generally gets to decide what weight
to give the various § 3553(a) factors and can choose to give great
weight to one factor over the others, see United States v. Rosales-
Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015), and given Mr. Higgs’
background and conduct the district court here was within its dis-
cretion in placing great weight on public safety.
Because independent examination of the entire record re-
veals no arguable issues of merit, counsel’s motion to withdraw is
GRANTED, and Higgs’s conviction and sentence are AFFIRMED.