United States v. Brandon Anderson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 31, 2025
• Docket: 24-10361
• Status: Unpublished

Opinion

USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 1 of 11

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-10361 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BRANDON M. ANDERSON, a.k.a. Brando, a.k.a. Doe B,

Defendant-Appellant. USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 2 of 11

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:23-cr-00033-MCR-1 ____________________

Before JORDAN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Brandon Anderson appeals his total sentence of 240 months’ imprisonment for conspiracy to distribute and possession with in- tent to distribute fentanyl, cocaine, and marijuana; possession with intent to distribute fentanyl, cocaine, and marijuana; and prohib- ited possession of a firearm and ammunition. First, he argues that the district court erroneously applied a three-level sentencing en- hancement under U.S.S.G. § 3B1.1(b) for acting as a manager or supervisor. Second, he contends that his 24-month consecutive sentence for violating the conditions of supervised release was pro- cedurally unreasonable because the court failed to consider the 18 U.S.C. § 3553(a) factors, the relevant Sentencing Guidelines policy statement, or justify its reason for imposing a consecutive sentence. Third, he asserts that his 216-month sentence for Counts 1 through 3 was substantively unreasonable because the court did not properly weigh the § 3553(a) factors and created a sentencing dis- parity between similarly situated defendants. USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 3 of 11

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I When reviewing the district court’s rulings with respect to Sentencing Guidelines issues, we consider legal issues de novo and factual findings for clear error. See United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). We review the district court’s im- position of an aggravating-role enhancement for clear error. See United States v. Shabazz, 887 F.3d 1204, 1222 (11th Cir. 2018). Under this deferential standard of clear-error review, we “will not disturb a district court’s findings unless we are left with a definite and firm conviction that a mistake has been committed.” United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009) (quotation marks omit- ted). Additionally, we may disregard sentencing errors as harmless if they do not affect a defendant’s guideline range or sentence. See United States v. Brown, 805 F.3d 1325, 1328 (11th Cir. 2015). II Under U.S.S.G. § 3B1.1(b), a three-level increase for a man- agerial or supervisory role applies if (1) the defendant was a man- ager or supervisor, but not an organizer or leader; and (2) the crim- inal activity involved five or more participants or was otherwise extensive. To qualify for the three-level increase, the defendant is only required to manage or supervise one other participant in the criminal offense. See United States v. Sosa, 777 F.3d 1279, 1301 (11th Cir. 2015) (citing § 3B1.1, comment. (n.2)). The enhancement “can- not be based solely on a finding that a defendant managed the as- sets of a conspiracy, without the defendant also managing or exer- cising control over another participant.” Id. (quotation marks USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 4 of 11

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omitted). See also United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010) (explaining that “control over assets alone is insufficient, the [defendant] must have had control over at least one other par- ticipant in the criminal activity”). If the defendant does not manage at least one other participant, the enhancement may never apply as a matter of law, even if the sentencing court correctly finds that the criminal scheme was “otherwise extensive.” See United States v. Williams, 527 F.3d 1235, 1249 (11th Cir. 2008) (quotation marks omitted) (analyzing the district court’s determination that a two- level aggravating role enhancement applied). A defendant can be a manager or supervisor where he ar- ranges criminal transactions or hires others to participate in the criminal conduct, even if he does not have the power to force oth- ers to engage in criminal acts. See United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir. 1999) (stating that the management enhancement is appropriate for a defendant who arranges drug transactions, negotiates sales with others, and hires others to work for the conspiracy); United States v. LaFraugh, 893 F.2d 314, 319 (11th Cir. 1990) (concluding that the defendant was a manager or supervisor where he recruited a co-defendant, participated in nego- tiations, and used his residence as the base of operations). The district court did not err in applying the three-level en- hancement under § 3B1.1(b). Mr. Anderson acted as a manager or supervisor of at least five people when he coordinated drug trans- actions, fronted and supplied drugs to distributors, and instructed individuals on how to cut drugs to add fentanyl and make more USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 5 of 11

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money. The court’s findings to this effect were not clearly errone- ous given the phone calls the government presented between Mr. Anderson and Bradley Salter, Marcus Collins, Frankie Pefford, Dante Connor, Leon Benjamin, Misty Dunn, and A.K. Mims. See D.E. 63 at 6-18, 20-21. 1 III We review the reasonableness of a sentence, including one imposed upon the revocation of supervised release, for an abuse of discretion. See United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc); United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). But when a defendant does not object on proce- dural reasonableness grounds at the time of his sentencing, we re- view for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). “Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010). An error is plain if “the legal rule is clearly established at the time the case is reviewed on direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015). If the explicit language of a statute or rule does not resolve an issue, plain error generally lies only where this Court’s or the Supreme Court’s precedent directly resolves it. See United States v. Moore, 22 F.4th

1 We note, as well, that the enhancement did not affect Mr. Anderson’s advi-

sory guideline range of 262 to 327 months’ imprisonment. See D.E. 63 at 21- 22. USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 6 of 11

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1258, 1266 (11th Cir. 2022). Mr. Anderson did not object on proce- dural resembleness grounds below, so we review for plain error. When a defendant violates a condition of supervised release, the district court typically has discretion to revoke the term of su- pervision and “require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the of- fense that resulted in such term of supervised release.” 18 U.S.C. § 3583(e)(3). To determine the defendant’s sentence following rev- ocation of supervised release, the court must consider the factors set forth in § 3553(a), including the Sentencing Guidelines and the policy statements issued by the Sentencing Commission. See Sweet- ing, 437 F.3d at 1107; 18 U.S.C. § 3553(a); U.S.S.G. § 7B1.4. The primary goal in sentencing a defendant upon revocation of super- vised release is to sanction his “breach of trust,” not the particular conduct triggering the violation. See U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). For that reason, “the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct.” Id. Where revocation is mandatory, the district court is not re- quired to consider any of the § 3553(a) factors in imposing a sen- tence. See United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000), abrogated in part on other grounds by Tapia v. United States, 564 U.S. 319 (2011). See also 18 U.S.C. § 3583(g). When a court consid- ers the § 3553(a) factors in fashioning a sentence, “the weight given to each factor is committed to the sound discretion of the court,” and the court may attach great weight to one factor over the others USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 7 of 11

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“so long as the sentence is reasonable under the circumstances.” United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022) (quota- tion marks omitted) (addressing the imposition of an original sen- tence, rather than a sentence imposed upon revocation of super- vised release). Revocation is mandatory when a defendant is found to have possessed a controlled substance during the term of supervision. See 18 U.S.C. § 3583(g)(1). Revocation is considered mandatory based on the facts before the district court, even if the court itself does not mention § 3583(g). See Brown, 224 F.3d at 1242. The court has discretion to determine the length of imprisonment for a man- datory revocation so long as it does not exceed the maximum al- lowed under § 3583(e)(3) based on the class of the original offense. See 18 U.S.C. § 3583(e)(3), (g). Possession with intent to distribute cocaine is a Class C felony. See 18 U.S.C. § 3559(a)(1); 21 U.S.C. § 841(a)(1), (b)(1)(C). A defendant cannot serve more than two years in prison upon revocation of supervised release when the original offense is a Class C felony. See 18 U.S.C. § 3583(e)(3). Controlled-substance offenses are Grade A violations of supervised release. See U.S.S.G. § 7B1.1(a)(1). Where a defendant’s original criminal history cate- gory is IV, the supervised release violation Grade is A, and the orig- inal sentence resulted from a Class C felony, the range of imprison- ment applicable upon revocation is 24 to 30 months’ imprison- ment. See § 7B1.4(a). USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 8 of 11

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Mr. Anderson’s 24-month consecutive sentence for violating his conditions of supervised release was procedurally reasonable, and did not constitute plain error, because it was within the advi- sory guideline range and applicable statutory maximum sentence. Additionally, though the district court was not required to consider the § 3553(a) factors, the 24-month consecutive sentence was sup- ported by the § 3553(a) factors and consistent with the relevant Sentencing Guidelines policy statement. IV We review the substantive reasonableness of a sentence un- der a deferential abuse-of-discretion standard considering the total- ity of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing the reasonableness of a sentence, we will not substitute our own judgment for that of the district court and will “affirm a sentence so long as the court’s decision was in the ballpark of permissible outcomes.” Butler, 39 F.4th at 1355 (quotation marks omitted). Mr. Anderson, as the party challenging the sentence, bears the burden of proving it is unreasonable. See United States v. Boone, 97 F.4th 1331, 1338-39 (11th Cir. 2024). Under § 3553(a), the district court must impose a sentence that is sufficient, but not greater than necessary, to reflect the seri- ousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence, and to protect the public from further crimes of the defendant. In ad- dition, the court must consider, among other factors, the nature and circumstances of the offense, the history and characteristics of USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 9 of 11

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the defendant, and the need to avoid unwarranted sentence dispar- ities among similarly situated defendants. See id. The court im- poses a substantively unreasonable sentence “when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant fac- tor, or (3) commits a clear error of judgment in considering the proper factors.” Butler, 39 F.4th at 1355 (quotation marks omitted). The court “commits a clear error of judgment when it weighs the § 3553(a) sentencing factors unreasonably.” Id. Although the district court is required to consider all rele- vant § 3553(a) factors, “the weight given to each factor is commit- ted to the sound discretion of the district court,” and the court may attach great weight to one factor over the others. See id. We have held that “[p]lacing substantial weight on a defendant’s criminal record is entirely consistent with § 3553(a) because five of the fac- tors it requires a court to consider are related to criminal history.” United States v. Rosales-Bruno, 789 F.3d 1249, 1263 (11th Cir. 2015). The district court does not have to explicitly state on the rec- ord that it has considered all the factors or expressly discuss each of them. United States v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). Moreover, the court’s failure to discuss mitigating evidence does not indicate that the court “erroneously ‘ignored’ or failed to consider this evidence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). One of the purposes of the Sentencing Guidelines is to pro- vide certainty and fairness in sentencing, and “avoiding USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 10 of 11

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unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (quo- tation marks omitted). Thus, “[a] well-founded claim of dispar- ity . . . assumes that apples are being compared to apples.” Id. at 1101 (quotation marks omitted). When considering a claim of dis- parity, we consider whether the defendant is similarly situated to the defendants he presents as comparators who received a different sentence. See United States v. Johnson, 980 F.3d 1364, 1386 (11th Cir. 2020). A defendant’s arguments about unwarranted disparity should be specific enough for us to “gauge.” United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011) (noting that the defendant’s ar- gument that there was an unwarranted disparity between his sen- tence and others who have been convicted of fraud crimes throughout the country “would be difficult to gauge”). The Supreme Court has stated that the “avoidance of un- warranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges.” Gall, 552 U.S. at 54. When a district court correctly calculates and carefully reviews the Guideline range, the court has “necessarily [given] significant weight and consideration to the need to avoid unwarranted dispar- ities.” Id. We ordinarily expect sentences within a defendant’s guide- line range to be reasonable. See United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009). Another sign of reasonableness is that the sentence is well below the statutory maximum. See United USCA11 Case: 24-10361 Document: 55-1 Date Filed: 03/31/2025 Page: 11 of 11

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States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021) (involving an upward-variance sentence). Mr. Anderson’s 216-month sentence for Counts 1 through 3—a downward variance from the advisory range of 262 to 327 months—is not substantively unreasonable. The district court con- sidered the § 3553(a) factors and did not abuse its discretion weigh- ing his criminal history, the seriousness of the offense, and deter- rence more heavily than his mental health, personal and family his- tory, and background in imposing a sentence well below the low-end of the guideline range. By correctly calculating and care- fully reviewing the guideline range, the district court necessarily gave significant weight and consideration to the need to avoid un- warranted disparities. V We affirm Mr. Anderson’s sentence. AFFIRMED.