United States v. Mario Floyd

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12336
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO FLOYD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00055-TKW-MJF-1
____________________
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2 Opinion of the Court 21-12336
Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
On July 12, 2019, law enforcement officers executed a
search warrant on the residence of Mario Quentin Floyd in Pan-
ama City, Florida. The search revealed an estimated 828.6 grams
of marijuana, a large amount of THC cartridges for electronic
cigarettes, four firearms, and about $124,000 in cash. Floyd was a
convicted felon and knew of his status.
A grand jury charged Floyd via indictment with one count
of distribution of a controlled substance (Count I), one count of
possession of firearms in furtherance of a drug trafficking offense
(Count II), and one count of being a felon in possession of a fire-
arm (Count III). Floyd pleaded guilty to Counts I and III, while
Count II was dismissed. Based on a total offense level of 29 and a
criminal history category of VI, the United States Sentencing
Guidelines range was 151 to 188 months’ imprisonment.
Prior to sentencing, Floyd objected to a two-level en-
hancement pursuant to U.S.S.G. § 2K2.1(b)(1)(A), for possessing
between three and seven firearms, but he expressly withdrew that
objection at sentencing. The district court also applied a four-
level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because it
found that he had possessed the firearms in connection with his
marijuana trafficking offense. Ultimately, the court agreed with
the calculation of the guidelines and, after considering the range
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21-12336 Opinion of the Court 3
and the circumstances of this case, sentenced Floyd to 151
months’ imprisonment. It further stated that, “even if [defense
counsel] was legally correct that [the firearms] were not possessed
in connection with another felony offense, the mere fact that they
were in that house with that number of people, with that amount
of drugs, would have been a factor that I would have taken into
account in imposing that sentence; and I don’t see it having
changed my view in any way.”
Floyd presents several arguments on appeal. First, he ar-
gues that his offense level should not have been enhanced for pos-
sessing more than three firearms because he did not know where
the firearms were located and, thus, did not possess them. Sec-
ond, he asserts that he did not use the firearms in connection with
another felony offense because he did not know where they were
located. The government, in response, argues that any error in
applying the § 2K2.1(b)(6)(B) enhancement was harmless because
the district court stated that it would impose the same total sen-
tence regardless of whether that enhancement applied. We ad-
dress each point in turn.
I.
Generally, we review a challenge to a sentence under the
abuse of discretion standard. United States v. Almedina, 686 F.3d
1312, 1314 (11th Cir. 2012). In doing so, we must first ensure that
the district court committed no significant procedural error. Id.“A district court procedurally errs if it improperly calculates the
sentencing guidelines range, among other things.” Id. at 1314–15.
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4 Opinion of the Court 21-12336
“In challenges to sentencing decisions, we review a district court’s
determinations of law de novo and its findings of fact for clear er-
ror.” United States v. Bishop, 940 F.3d 1242, 1250 (11th Cir.
2019). For sentencing purposes, possession of a firearm involves a
factual finding, which we normally review for clear error. United
States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).
A defendant receives a two-level sentencing enhancement
if the convicted offense involved between three and seven fire-
arms. U.S.S.G. § 2K2.1(b)(1)(A). We have explained that a de-
fendant’s “[p]ossession of a firearm may be either actual or con-
structive.” United States v. Perez, 661 F.3d 568, 576 (11th Cir.
2011). “Constructive possession of a firearm exists when a de-
fendant does not have actual possession but instead knowingly
has the power or right[] and intention to exercise dominion and
control over the firearm.” Id. To demonstrate constructive pos-
session, the government must show that “the defendant (1) was
aware or knew of the firearm’s presence and (2) had the ability
and intent to later exercise dominion and control over that fire-
arm.” Id. The government may prove constructive possession by
direct or circumstantial evidence. Id.We will not review invited errors, however. United States
v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). The invited-error
doctrine applies where a defendant induced or invited the district
court’s error. United States v. Brannan, 562 F.3d 1300, 1306 (11th
Cir. 2009). A defendant invites the district court to err when he
“expressly acknowledge[s]” that the court may take the action of
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21-12336 Opinion of the Court 5
which he complains on appeal. United States v. Love, 449 F.3d
1154, 1157 (11th Cir. 2006). The doctrine is also implicated where
defense counsel “explicitly stated” that she has no objection to the
court’s proposed action. United States v. Pendergrass, 995 F.3d
858, 881 (11th Cir. 2021).
Here, Floyd’s challenge to the enhancement under
§ 2K2.1(b)(1)(A) fails. Specifically, he invited any error by
first withdrawing his objection and then stating that (1) his objec-
tion was “incorrect,” (2) the probation officer was correct about
the enhancement, and (3) he had acknowledged that he possessed
the four firearms.1 Thus, we affirm in this respect.
II.
Procedurally, under Federal Rule of Criminal Procedure
52(a), any error that does not affect substantial rights is harmless
and must be disregarded. Hence, we “need not review an issue
when (1) the district court states it would have imposed the same
sentence, even absent an alleged error, and (2) the sentence is
substantively reasonable.” United States v. Goldman, 953 F.3d
1213, 1221 (11th Cir. 2020) (citing United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006)). In those circumstances, any error in
the guideline calculation is harmless. See id.1 In any event, we also conclude that the enhancement applied to Floyd be-
cause he knew of the four firearms’ presence—he purchased them, used
them for protection, and the firearms were in the same room as the “THC
cartridges” that he sold and his identification—and he had dominion over the
firearms, as they were in his bedroom.
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6 Opinion of the Court 21-12336
In evaluating the substantive reasonableness of the sen-
tence under this analysis, we will assume that the Sentencing
Guidelines error the defendant alleges occurred and then consider
what the reduced offense level and corresponding sentencing
range would be. Keene, 470 F.3d at 1349; United States v. Loza-
no, 490 F.3d 1317, 1324 (11th Cir. 2007). Then, we evaluate the
substantive reasonableness of the sentence actually imposed, in
light of the reduced sentencing range. See Keene, 470 F.3d at
1349.
Substantively, and of relevance to this appeal, the Sentenc-
ing Guidelines provide for a four-level enhancement if the de-
fendant “used or possessed any firearm or ammunition in connec-
tion with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to be-
lieve that it would be used or possessed in connection with an-
other felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The commen-
tary to the Guidelines states that the enhancement applies “if the
firearm or ammunition facilitated, or had the potential of facilitat-
ing, another felony offense.” Id. § 2K2.1(b)(6)(B) cmt. n.14(A).
The commentary further provides that, in the case of a drug traf-
ficking offense, the enhancement applies when a firearm is found
in close proximity to drugs or drug paraphernalia. Id.
§ 2K2.1(b)(6)(B) cmt. n.14(B). For purposes of § 2K2.1(b)(6)(B),
“[a]nother felony offense” is defined as “any federal, state, or local
offense, other than the explosive or firearms possession or traf-
ficking offense, punishable by imprisonment for a term exceeding
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21-12336 Opinion of the Court 7
one year, regardless of whether a criminal charge was brought, or
a conviction obtained.” Id. § 2K2.1(b)(6)(B) cmt. n.14(C).
Here, it is not necessary for us to resolve whether the dis-
trict court erred with respect to the challenge to U.S.S.G.
§ 2K2.1(b)(6)(B) that Floyd now raises on appeal. The district
court stated that it would have imposed the same total sentence
even if it had sustained his sentencing objection. Further, as we
conclude in the next section, Floyd’s total sentence was substan-
tively reasonable. Thus, we affirm in this respect. See Lozano,
490 F.3d at 1325 (“[T]he . . . prison sentences are not unreasona-
ble. It follows that if there was any error in calculating the [guide-
lines range], . . . [i]t was harmless.”).
III.
We review a sentence’s reasonableness for abuse of discre-
tion, “[r]egardless of whether the sentence imposed is inside or
outside the Guidelines range.” Gall v. United States, 552 U.S. 38,
51 (2007). A criminal defendant preserves the issue of the sub-
stantive reasonableness of his sentence for review by advocating
for a less severe sentence. Holguin-Hernandez v. United States,
140 S. Ct. 762, 766–67 (2020).
We will vacate a 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
[18 U.S.C.] § 3553(a) factors” as evidenced by a sentence “that is
outside the range of reasonable sentences dictated by the facts of
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8 Opinion of the Court 21-12336
the case.” Goldman, 953 F.3d at 1222. “We do not presume that
a sentence outside the guideline range is unreasonable and must
give due deference to the district court’s decision that the
§ 3553(a) factors, as a whole, justify the extent of the variance.”
Id. Nonetheless, we “take the degree of variance into account
and consider the extent of a deviation from the guidelines.” Unit-
ed States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021). “Alt-
hough there is no proportionality principle in sentencing, . . . the
justification must be sufficiently compelling to support the degree
of the variance.” Id. Finally, the party challenging a sentence has
the burden of showing that the sentence is unreasonable in light
of the entire record, the § 3553(a) factors, and the deference af-
forded the sentencing court. See United States v. Langston, 590
F.3d 1226, 1236 (11th Cir. 2009).
A sentence below the statutory maximum is an indication
that the sentence is reasonable. United States v. Hunt, 941 F.3d
1259, 1264 (11th Cir. 2019). The statutory maximum term of im-
prisonment for a conviction under 21 U.S.C. § 841(a)(1) involving
less than fifty kilograms of marijuana is five years. 21 U.S.C.
§ 841(b)(1)(D). The statutory maximum term of imprisonment
for a conviction under 18 U.S.C. § 922(g)(1) is ten years. 18 U.S.C.
§ 924(a)(2).
Section 3553(a) mandates that the district court “shall im-
pose a sentence sufficient, but not greater than necessary,” to “re-
flect the seriousness of the offense, promote respect for the law,
and provide just punishment for the offense,” adequately deter
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21-12336 Opinion of the Court 9
criminal conduct, protect the public from further crimes of the
defendant, and “to provide the defendant with needed education-
al or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2)(A)–(D). In addition, the court must consider, in rele-
vant part: the nature and circumstances of the offense and the his-
tory and characteristics of the defendant; the kinds of sentences
available; the guideline sentencing range; and the need to avoid
unwarranted sentence disparities. Id. § 3553(a)(1), (3)–(4), (6).
While the district court must consider each § 3553(a) fac-
tor, it need not discuss each factor specifically and its statement
that it considered the factors is sufficient. Goldman, 953 F.3d at
1222. The weight that each § 3553(a) factor receives is a matter
within the sound discretion of the district court. United States v.
Williams, 526 F.3d 1312, 1323 (11th Cir. 2008); United States v.
Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (holding that the dis-
trict court can place great weight on one factor over others).
Here, Floyd’s adjusted offense level, without the four-point
enhancement, would have been 25. When combined with a crim-
inal history category of VI, his guideline range would have been
110 to 137 months’ imprisonment. Because his original range was
151 to 180 months, his 151-month total sentence would have rep-
resented an upward variance.
Such an upward variance would still have been substantive-
ly reasonable. First, it was within the district court’s discretion to
impose an above-guideline range total sentence based on the na-
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10 Opinion of the Court 21-12336
ture of the offense conduct—the amount of drugs and the num-
ber of people in the house. Second, Floyd’s extensive criminal
history and the need to deter him from committing further
crimes—particularly when his previous shorter sentences failed to
deter him—also factored into the district court’s decision. Fur-
ther, it was within the district court’s discretion to give greater
weight to the nature of his offense, particularly given that there
were children in the house, his criminal history, and the need for
deterrence than to his mitigating personal characteristics. It was
also reasonable for the district court to conclude that Floyd was
not subject to an unwarranted sentencing disparity on his mariju-
ana trafficking charge, where his criminal history was more exten-
sive than the typical marijuana trafficker’s. Finally, the district
court imposed a total sentence below the combined 180-month
statutory maximum, which also indicates that it was reasonable.
Thus, we affirm in this respect.
****
After careful consideration, we affirm the judgment of the
district court.
AFFIRMED.