United States v. DeQuarrien Jevante Lee

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 18, 2019
• Docket: 18-12407
• Status: Unpublished

Opinion

Case: 18-12407 Date Filed: 04/18/2019 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12407 Non-Argument Calendar ________________________

D.C. Docket No. 2:17-cr-00287-LSC-SGC-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DEQUARRIEN JEVANTE LEE,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(April 18, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-12407 Date Filed: 04/18/2019 Page: 2 of 13

Dequarrien Lee appeals his 96-month sentence for unlawfully taking or

carrying away firearms from the premises of a firearms dealer, 18 U.S.C. § 922(u)

(Count One), and possessing stolen firearms, 18 U.S.C. § 922(j) (Count Two). Lee

argues that his 96-month total sentence was substantively and procedurally

unreasonable because it was greater than necessary to serve as effective

punishment, the district court did not provide adequate justification to support the

degree of upward variance, it failed to consider the § 3553(a) factors, and it failed

to avoid unwarranted sentencing disparities between Lee and his codefendant,

Devontae Perkins.

In analyzing whether a sentence is reasonable, we first determine whether

the district court committed any significant procedural error, and then, if the

sentencing decision was procedurally sound, we determine whether the sentence

was substantively unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007).

When reviewing for procedural reasonableness, we ordinarily consider legal issues

de novo, review factual findings for clear error, and apply the guidelines to the

facts with due deference, which is akin to clear error review. United States v

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). However, failure to preserve an

objection for procedural reasonableness at sentencing means that we may only

review for plain error affecting substantial rights. United States v. Vandergrift, 754

F.3d 1303, 1307 (11th Cir. 2014). The objection must apprise the trial court and

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the opposing party of the specific grounds on which appellate relief will be sought.

United States v. Carpenter, 803 F.3d 1224, 1237–38 (11th Cir. 2015). “A

sweeping, general objection is insufficient to preserve specific sentencing issues

for review.” Id. at 1238.

Under plain error review, we may, at our discretion, correct an error where

(1) an error occurred, (2) the error was plain, and (3) the error affects substantial

rights. United States v. Olano, 507 U.S. 725, 732-36 (1993). When these factors

are met, we may exercise discretion and correct the error if it “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. at 736. To

assess procedural reasonableness, we determine whether the district court

committed any significant procedural error by, among other things, failing to

consider the § 3553(a) factors. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir. 2014). We have held that a district court is not required to state on the record

that it has explicitly considered or discussed each § 3553(a) factor; rather, the

district court’s acknowledgment that it considered the § 3553(a) factors and the

defendant’s arguments is sufficient. United States v. Docampo, 573 F.3d 1091,

1100 (11th Cir. 2009). Even when the district court failed to “explicitly articulate

that it had considered the § 3553(a) factors,” but it did “consider a number of the

sentencing factors,” we have upheld a sentence. United States v. Dorman, 488

F.3d 936, 944 (11th Cir. 2008). A sentencing judge “should set forth enough to

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satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority,” Rita v.

United States, 551 U.S. 338, 356 (2007), and “must adequately explain the chosen

sentence to allow for meaningful appellate review and to promote the perception of

fair sentencing.” Gall, 552 U.S. at 50.

We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016).

“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 substantial

deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d

1249, 1256 (11th Cir. 2015).

The district court must impose a sentence that is “sufficient, but not greater

than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), and

shall consider the need to: reflect the seriousness of the offense, promote respect

for the law, and provide just punishment for the offense; deter criminal conduct;

protect the public from the defendant’s future criminal conduct; and provide the

defendant with needed education or vocational training, medical care, or other

correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2). The

court must also consider the nature and circumstances of the offense and the

history and characteristics of the defendant. Id. at (a)(1).

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The court must also consider “the need to avoid unwarranted sentence

disparities between defendants with similar records who have been found guilty of

similar conduct.” § 3553(a)(6). However, we “will not find a sentence disparity

among codefendants to be unwarranted when they are not similarly situated,”

United States v. Holt, 777 F.3d 1234, 1270 (11th Cir. 2015), because “[a] well-

founded claim of disparity . . . assumes that apples are being compared to apples.”

Docampo, 573 F.3d at 1101. We have held that defendants who have “been

convicted of less serious offenses, lacked extensive criminal histories, or [] pleaded

guilty,” are not similarly situated, and that the district court unreasonably erred in

failing to distinguish those defendants. See United States v. Jayyousi, 657 F.3d

1085, 1118 (11th Cir. 2011).

We will not second guess the weight that the district court gave to a

§ 3553(a) factor as long as the sentence is reasonable in light of all the

circumstances. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The

district court is permitted to attach great weight to one § 3553(a) factor over others.

United States v. Overstreet, 713 F.3d 627, 638 (2013). A district court can abuse

its discretion when it “(1) fails to afford consideration to relevant factors that were

due significant weight, (2) gives significant weight to an improper or irrelevant

factor, or (3) commits a clear error of judgment in considering the proper factors.”

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A district

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court commits a “clear error of judgment” when it unreasonably considers the

proper factors. Id. We have affirmed a court’s upward variance based on the

court’s finding that the defendant’s “criminal history category of I understated the

seriousness of his criminal history,” United States v. Moran, 778 F.3d 942, 983

(11th Cir. 2015), including in an instance when the criminal history at issue was

not part of a conviction, but rather, was “germane to several § 3553(a) factors,

including the history and characteristics of the defendant,” Overstreet, 713 F.3d

at 637-38.

We will only vacate a sentence 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 by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” Id. at 1190 (quoting Pugh,

515 F.3d at 1191). “Although there is no proportionality principle in sentencing, a

major variance does require a more significant justification than a minor one—the

requirement is that the justification be ‘sufficiently compelling to support the

degree of the variance.’” Id. at 1196 (quoting Gall, 552 U.S. at 50). The

sentencing court may base its finding of fact on facts admitted by a defendant’s

plea of guilty, undisputed statements in the PSI, or evidence presented either at

trial or at the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356

(11th Cir. 1989).

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Here, Lee has not satisfied his burden to prove that his sentence was

procedurally unreasonable because the court properly considered the § 3553(a)

factors in its determination, even if the court failed to explicitly name the factors.

This Court has held that the sentencing court need not “explicitly articulate that it

had considered the § 3553(a) factors,” and the district court here stated its reasons

for its upward variance that satisfy several § 3553(s) factors. Dorman, 488 F.3d at

944. The court stated that “the guidelines just absolutely under calculate his

criminal conduct,” which reflects the need to provide just punishment for the

offense. The court then noted that Lee “has been basically a criminal that’s just

been on the loose doing whatever he wants to do with whatever firearms he can get

his hands on. He is going to kill somebody,” which speaks to the need to protect

the public from Lee’s possible future criminal conduct. Further, the court also

stated that the 96-month sentence was “appropriate when [it] consider[ed] the

nature and circumstances of the offense and the history and characteristics of the

defendant,” which is explicit language from § 3553(a)(1). Finally, the court

warned Lee that he will no longer be “permitted to run loose, commit crimes, and

have firearms,” because the consequences of doing so will be more severe with this

conviction in his criminal history, which speaks of promoting respect for the law

and creating deterrence for future criminal conduct. Furthermore, these factors are

all mentioned in the court’s statement of reasons it filed after the sentencing

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hearing. These are all § 3553(a) factors, and as such, Lee’s argument that the

court’s sentence was procedurally unreasonable fails on account of the record.

Furthermore, Lee’s argument that the court failed to consider certain factors,

such as the kinds of sentences available, is without merit because a district court is

not required to state on the record that it has explicitly considered or discussed

each § 3553(a) factor. Docampo, 573 F.3d at 1100. The court here has “set forth

enough to” demonstrate that it “considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority,” and has

“adequately explain[ed] the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing.” Rita, 551 U.S. at 356;

Gall, 552 U.S. at 50. Thus, the district court did not commit error by failing to

explicitly reference the § 3553(a) factors.

Moreover, even if this Court were to find any error, because Lee failed to

preserve his objection for procedural reasonableness before the district court, the

standard of review here is plain error. Vandergrift, 754 F.3d at 1307. His objection

of “we just generally object to the court going outside the guidelines because this

was a guideline case, and we object to that” does not apprise the trial court and the

opposing party of the specific grounds on which appellate relief will be sought.

Carpenter, 803 F.3d at 1237-38. Instead, it is a “sweeping, general objection” that

is “insufficient to preserve specific sentencing issues for review.” Id. at 1238.

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Thus, Lee was required to prove (1) an error occurred, (2) the error was plain, and

(3) the error affects substantial rights. Olano, 507 U.S. at 732-36. As described

above, the court did not err, and even if this Court were to conclude that it did, that

error did not rise to the level of “seriously affect[ing] the fairness, integrity or

public reputation of judicial proceedings.” Id. at 736.

Here, Lee has not met his burden of proving that his sentence was

substantively unreasonable because the district court considered the relevant §

3553(a) factors, it did not clearly err in considering or balancing those factors, and

it gave justification for its upward variance. Irey, 612 F.3d at 1189. Furthermore,

Lee failed to establish that he and Perkins were similarly situated such that their

sentence disparity was unwarranted. Holt, 777 F.3d at 1270. As stated above, the

district court considered the § 3553(a) factors of needing to provide just

punishment for the offense, needing to protect the public from Lee’s possible

future criminal conduct, the nature and circumstances of the offense and Lee’s

history and characteristics, and promoting respect for the law and creating

deterrence for future criminal conduct. The court gave great weight to his pending

offenses and concluded that an upwardly varied sentence was appropriate given

Lee’s “history and characteristics.” Lee argues that this focus on his pending cases

was unreasonable because a sentence near the statutory maximum “should be

reserved for the most culpable and dangerous persons.” However, a court is

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permitted to give one § 3553(a) factor greater weight than others, Overstreet, 713

F.3d at 638, and this Court does not second guess the weight that the district court

gave to a factor if the sentence is reasonable in light of all the circumstances, Pugh,

515 F.3d at 1191. Lee’s pending crimes were all centered around his possession of

firearms, most of which were stolen, which related directly to his instant offense

and are “germane to several § 3553(a) factors, including the history and

characteristics of the defendant.” Overstreet, 713 F.3d at 637-38. Furthermore,

the court ensured that its sentence would run concurrently with his pending state

court sentences. These considerations do not amount to a clear error in judgment,

as it was reasonable to consider these factors. Irey, 612 F.3d at 1189.

Finally, the court’s underlying reliance on the finding that the guidelines

“absolutely under calculate[d]” Lee’s offenses is reasonable under this Court’s

precedent. See Moran, 778 F.3d at 983; Overstreet, 713 F.3d at 637-38. In light of

the circumstances of his instant offense, his pending offenses related to firearms,

and the court’s desire for the sentence to run concurrently, the sentence appears

reasonable and this Court need not second guess the district court’s added weight

on Lee’s history and characteristics. Pugh, 515 F.3d at 1191.

Next, the district court properly explained its sentence with the requisite

“significant justification” for such a major variation. Irey, 612 F.3d at 1196. First,

the court admitted “the sentence is going to be significant,” but noted that the

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“guidelines just absolutely under calculate [Lee’s] criminal conduct.” The court

gave Lee and the government the opportunity to stipulate to Lee’s conduct in his

pending charges and justified its upward variance on the conduct described. The

court directly cited to each of the pending cases in explaining its decision and

noted that the cases demonstrated that Lee had been “on the loose doing whatever

he wants to do with whatever firearms he can get his hands on.” The guideline

calculation could only reflect Lee’s criminal history based on convicted crimes,

and thus, his conduct in the pending cases could be not reflected in the

recommended range. As such, in order to account for the “nature and

circumstances of the offense” (the theft and possession of firearms) and Lee’s

“history and characteristics” (pending cases for similar offenses), the court

reasonably decided to adjust Lee’s sentence upward. Thus, the court has

demonstrated a “more significant justification” to “support the degree of the

variance.” Irey, 612 F.3d at 1196. It did so by relying on evidence of conduct in

his pending cases presented at the hearing. Wilson, 884 F.2d at 1356.

Lee has also failed to prove that he and Perkins were similarly situated such

that their sentence disparity was unwarranted. Although Lee is correct is arguing

that he and Perkins “engaged in similar conduct,” and even some of the “same

conduct” in the past, the record shows that Perkins was not indicted on the same

charges as Lee. This Court will not find a disparity in sentences among

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codefendants to be unwarranted if they are not similarly situated. Holt, 777 F.3d at

1270. One indicator of codefendants not being similarly situated is if one had

“been convicted of a less serious offense.” Jayyousi, 657 F.3d at 1118. Here, the

record shows that Perkins was only indicted on possessing a stolen firearm the

Benelli 12-gauge shot gun that Lee pled guilty to taking from Birmingham Pistol

Parlor. Perkins told the ATF agents that he had not been at the Birmingham Pistol

Parlor, he met with Lee after the incident, and Lee would not tell Perkins the origin

of the weapons, and Lee put Perkins in charge of the Benelli shotgun. This

conduct and Perkins’s indictment charge in this instance can reasonably constitute

a “less serious offense” than Lee’s. Jayyousi, 657 F.3d at 1118. Thus, Lee has

failed to establish that he and Perkins are similarly situated and, as such, his

argument that his sentence was substantively unreasonable for this regard is

without merit.

Finally, Lee’s final argument on appeal—that the court should have

recalculated his criminal history score or have considered what it might have been

when the pending cases became convictions—is without merit. Lee supports his

argument with this Court’s ruling in United States v. Johnson, 934 F.2d 1237, 1239

(11th Cir. 1991). However, that case involved a district court’s departure under a

provision of the guidelines and not, as in the case here, on a district court’s

variance pursuant to the § 3553(a) factors. Johnson, 934 F.2d at 1239 (holding that

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the court, “in departing upward, must look to the next highest criminal history

category and determine, taking into account the factors allowed by section 4A1 .3,

whether that category more accurately reflects the defendant’s criminal history.”).

Thus, Lee’s argument is without merit here.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.