United States v. Kevin Jackson

USCA11 Case: 22-12144 Document: 35-1 Date Filed: 04/12/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12144
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN JACKSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:20-tp-14006-AMC-1
____________________
USCA11 Case: 22-12144 Document: 35-1 Date Filed: 04/12/2023 Page: 2 of 4
2 Opinion of the Court 22-12144
Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin Jackson committed numerous supervised release vio-
lations—including use of marijuana and fleeing from and eluding a
law enforcement officer—for which he was sentenced to 18
months imprisonment and 18 months supervised release. On ap-
peal he argues that his sentence is substantively unreasonable be-
cause it is not related to any proper sentencing factor and involves
greater deprivation of liberty than reasonably necessary to achieve
the purposes of sentencing.
We review the reasonableness of a sentence, including the
imposition of supervised release, under a deferential abuse-of-dis-
cretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
On substantive reasonableness review, we may vacate the
sentence only if we are left with the definite and firm conviction
that the district court committed a clear error of judgment in
weighing the § 3553(a) factors to arrive at an unreasonable sen-
tence based on the facts of the case. United States v. Irey, 612 F.3d
1160, 1190 (11th Cir. 2010) (en banc). The party challenging the
sentence 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. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018). The
district court must issue a sentence “sufficient, but not greater than
necessary” to comply with the purposes of § 3553(a)(2), which
USCA11 Case: 22-12144 Document: 35-1 Date Filed: 04/12/2023 Page: 3 of 4
22-12144 Opinion of the Court 3
include the need for a sentence to reflect the seriousness of the of-
fense, promote respect for the law, provide just punishment, deter
criminal conduct, and protect the public from future criminal con-
duct. 18 U.S.C. § 3553(a). The weight given to any § 3553(a) factor
is a matter committed to the discretion of the district court. United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).
A departure is made under the Guidelines, while a variance
is made under the sentencing factors in § 3553(a). United States v.
Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009). A challenge to an
upward variance is viewed as a challenge to the substantive reason-
ableness of a sentence. See, e.g., United States v. Dougherty,
754 F.3d 1353, 1362 (11th Cir. 2014). A district court does not abuse
its discretion by varying upward and placing more weight on a de-
fendant’s criminal history than on the advisory guideline range.
United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir.
2016). We have upheld large upward variances based solely on the
defendant’s extensive criminal history. Id. at 1288; see, e.g., United
States v. Shaw, 560 F.3d 1230, 1241 (11th Cir. 2009) (upholding a
120-month statutory maximum sentence despite a guidelines range
of 30 to 37 months for a defendant who had been arrested
26 times). Further, an upward variance well below the statutory
maximum sentence indicates that a sentence is reasonable. United
States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021).
Here, the district court imposed a substantively reasonable
sentence, despite upwardly varying. See Gall, 552 U.S. at 51. In
fashioning Jackson’s sentence, the district court noted the nature
USCA11 Case: 22-12144 Document: 35-1 Date Filed: 04/12/2023 Page: 4 of 4
4 Opinion of the Court 22-12144
and circumstances of the offense and the seriousness of the offense
when it noted his excessive speed and elusion of law enforcement
that Jackson directly admitted to during the final revocation and
sentencing hearing. 18 U.S.C. § 3553(a)(1), (2)(A). Further, the dis-
trict court acknowledged Jackson’s history and characteristics
when it mentioned his repeated and lengthy history of violations
through marijuana use, including multiple prior violation reports
from the United States Probation Office for marijuana use. Id. §
3553(a)(1). Additionally, the district court explicitly stated that it
considered the statutory purposes of sentencing, the 18 U.S.C. §
3553(a) factors, the parties’ arguments, and the information in the
violation report. While the district court only discussed in any de-
tail the nature, circumstances, and seriousness of Jackson’s offense
and his history and characteristics, it was within the district court’s
discretion to attach great weight to these factors over others, and
it stated that it considered all the factors. Williams, 526 F.3d at 1322.
Finally, Jackson’s sentence was below the maximum penalty,
which this Court has stated indicates that his sentence is reasona-
ble. Riley, 995 F.3d at 1278. Based on the foregoing, it was not un-
reasonable for the district court to upwardly vary and sentence
Jackson to 18 months’ imprisonment followed by 18 months’ su-
pervised release. Gall, 552 U.S. at 51. Accordingly, we affirm.
AFFIRMED.