DocketNumber: 22-11276
Filed Date: 4/18/2023
Status: Non-Precedential
Modified Date: 4/18/2023
USCA11 Case: 22-11276 Document: 25-1 Date Filed: 04/18/2023 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-11276 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SANTONIO LAROY FOSTER, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:21-cr-00378-MHC-1 ____________________ USCA11 Case: 22-11276 Document: 25-1 Date Filed: 04/18/2023 Page: 2 of 5 2 Opinion of the Court 22-11276 Before WILSON, BRANCH, and LUCK, Circuit Judges. PER CURIAM: Santonio Foster accepted a binding plea agreement and pleaded guilty to two counts of knowingly possessing a stolen fire- arm. Pursuant to the plea agreement, he was sentenced to 96- months of imprisonment. Foster now appeals his sentence, argu- ing the district court failed to articulate why the court entered a sentence much higher than the guidelines range. After careful re- view, we AFFIRM. I. In 2019, a grand jury returned a superseding indictment charging Foster with two counts of being a felon in possession of a firearm in violation of18 U.S.C. § 924
(e). Foster pleaded guilty pur- suant to a binding plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Under the plea agreement, the parties jointly recom- mended a sentencing range of 96–120 months, stipulating that this range was reasonable under18 U.S.C. § 3553
(a). The initial sentencing calculations totaled an offense level of 27. The corresponding sentencing recommendation was 120–150 months of imprisonment. At the sentencing hearing, Foster ob- jected to the enhancements calculated into his offense level. The district court sustained the objections, ultimately altering the cal- culation to a new offense level of 21. The new corresponding sen- tencing recommendation was 70–78 months of imprisonment. USCA11 Case: 22-11276 Document: 25-1 Date Filed: 04/18/2023 Page: 3 of 5 22-11276 Opinion of the Court 3 The district court sentenced Foster to a concurrent 96-month im- prisonment.1 The court expressly considered the § 3553(a) factors at the hearing and found that “the sentence meets the criteria of punishment, deterrence and incapacitation, and is sufficient but not greater that necessary to meet the objectives of Section § 3553(a).” Specifically, the court explained that the nature and circumstances of the offense made the sentence reasonable because Foster was a convicted felon and plead guilty to a “serious offense and it calls for a serious sentence.” Additionally, the court found that although Foster’s history and characteristics exhibit mitigating factors, his re- peated decisions to be involved in criminal activity as an adult war- ranted punishment. The court also considered the need to afford adequate deterrence and found that a 96-month sentence is enough for both specific and general deterrence. Lastly, the court noted that it considered the kinds of sentencing, the range established set forth in the guidelines, and the need to avoid sentence disparity. Foster now appeals his sentence. II. “Where a defendant raises a sentencing argument for the first time on appeal, we review for plain error.” United States v. Aguillard,217 F.3d 1319
, 1320 (11th Cir. 2000). Under this 1 Foster was also sentenced to three years supervised release, and a special assessment of $200. USCA11 Case: 22-11276 Document: 25-1 Date Filed: 04/18/2023 Page: 4 of 5 4 Opinion of the Court 22-11276 standard, “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.”Id.
(citation omitted). Upward variances are imposed based upon the § 3553(a) fac- tors. See, e.g., United States v. Overstreet,713 F.3d 627
, 637–38 (11th Cir. 2013). A sentencing court may impose an up- ward variance based upon uncharged conduct, as it relates to the history and characteristics of the defendant, and the need to pro- mote respect for the law, afford adequate deterrence, and protect the public.Id.
at 637–38. III. Foster argues that the district court plainly erred because it failed to articulate why the upward variance was necessary and just. Because the court lowered the guideline range to 70–78 months, it should have sentenced Foster within that range or spe- cifically justified the upward variance to 96–months. We hold that the court made a proper justification and therefore there is no plain error. First, the court properly justified the sentence with the § 3553(a) factors. It detailed why it thought a 96-month sentence was necessary in light of Foster’s history and characteristics, to achieve adequate deterrence, and to protect the public. Id. Sec- ond, the sentence was justified because the parties jointly agreed that 96 months was reasonable under the § 3553(a) factors, and defense counsel specifically requested a 96–month sentence at the USCA11 Case: 22-11276 Document: 25-1 Date Filed: 04/18/2023 Page: 5 of 5 22-11276 Opinion of the Court 5 sentencing hearing after the guideline range was readjusted. Ac- cordingly, we find no error. AFFIRMED.