United States v. Ervin Harris

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 13, 2019
• Docket: 19-10260
• Status: Unpublished

Opinion

Case: 19-10260 Date Filed: 11/13/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10260 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20693-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERVIN HARRIS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(November 13, 2019)

Before MARCUS, BRANCH and BLACK, Circuit Judges.

PER CURIAM: Case: 19-10260 Date Filed: 11/13/2019 Page: 2 of 6

Ervin Harris appeals his 110-month sentence for assaulting a federal officer

with a deadly weapon and inflicting bodily injury, in violation of 18 U.S.C.

§ 111(a) and (b). He argues that his sentence was both procedurally and

substantively unreasonable because the district court failed to consider mitigating

evidence related to the nature of his offense and his unique personal history, as

indicated by 18 U.S.C. § 3553(a)(1). After review, 1 we affirm.

Briefly, Harris’s convictions arose out of an interaction with a Deputy U.S.

Marshal and two U.S. Marshal Task Force Officers. The officers engaged Harris

and attempted to question him concerning the whereabouts of his half-brother. In

attempting to flee this encounter, Harris dragged two of the officers with his

vehicle, resulting in various injuries to the officers. Throughout his sentencing,

Harris insisted that he had not intended to injure the officers; instead, he was

triggered by the sight of the officers (who he claimed approached him with guns

drawn) and reacted on impulse.

Turning first to the procedural reasonableness of Harris’s sentence, because

Harris did not object to his sentence on procedural grounds before the district

court, we review his procedural claim only for plain error. United States v.

McNair, 605 F.3d 1152, 1222 (11th Cir. 2010). To establish plain error, Harris

1 We review the final sentence imposed by the district court for reasonableness. United States v. Booker, 543 U.S. 220, 264 (2005). 2 Case: 19-10260 Date Filed: 11/13/2019 Page: 3 of 6

must show that an error occurred, the error was plain, it affected his substantial

rights, and it seriously affected the fairness of the judicial proceedings. United

States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014). An error is “plain”

if controlling precedent from the Supreme Court or this Court establishes that an

error occurred. Id.

The district court must consider the § 3553(a) factors, but it is not required

to state on the record that it has explicitly considered each of the § 3553(a) factors

or to discuss each of the § 3553(a) factors. United States v. Kuhlman, 711 F.3d

1321, 1326 (11th Cir. 2013). Instead, an acknowledgement by the district court

that it considered the § 3553(a) factors is sufficient. United States v. Turner, 474

F.3d 1265, 1281 (11th Cir. 2007).

Here, the district court expressly stated it had considered all of the statutory

§ 3553(a) factors. Thus, Harris has failed to show that the district court plainly

erred in its analysis of the relevant § 3553(a) factors, notwithstanding his assertion

that the district court failed to explicitly or meaningfully address the nature and

circumstances of his offense, or his history and characteristics.

As to the substantive reasonableness of Harris’s sentence, we consider the

substantive reasonableness of a sentence under a deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). We must consider the

totality of the circumstances, including the extent of any variance from the

3 Case: 19-10260 Date Filed: 11/13/2019 Page: 4 of 6

guideline range. Id. The district court abuses its discretion if 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).

Here, Harris focuses on the first of these potential abuses of discretion,

arguing the district court failed to afford adequate consideration to the nature and

circumstances of his offense, and his personal history and characteristics. He

points to his criminal history, which he insists “was confined to a short period of

time when he was facing significant personal hardship,” and which included no

“serious drug offenses or violent crimes.” He also contends the district court failed

to consider that: (1) he had a significant and meaningful work history; (2) he had

extraordinary support from his family; and (3) his actions in this case amounted to

a “split second decision,” not any real desire to injure the officers.

However, as noted above, the district court’s failure to explicitly discuss the

mitigating evidence Harris identifies is not itself error, nor does it indicate that the

court “erroneously ‘ignored’ or failed to consider this evidence.” United States v.

Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). The district court’s failure to

mention specific mitigating factors at sentencing—here, the relative seriousness of

Harris’s criminal history, his work history, his family support, and his state of

4 Case: 19-10260 Date Filed: 11/13/2019 Page: 5 of 6

mind during the commission of the subject offenses—does not compel the

conclusion that the sentence was substantively unreasonable. See United States v.

Snipes, 611 F.3d 855, 873 (11th Cir. 2010) (rejecting a defendant’s argument that

his conviction was substantively unreasonable because the sentencing judge did not

specifically mention “his college education, his family, and his charitable

activities”).

Harris contends the district court improperly focused “nearly exclusively” on

his prior criminal record—to the exclusion of the mitigating factors discussed

above—in crafting its sentence. But the weight given to each factor in § 3553(a) is

a matter committed to the sound discretion of the district court. United States v.

Barrington, 648 F.3d 1178, 1204 (11th Cir. 2011).

Moreover, while we do not apply a presumption of reasonableness to

sentences within the guideline range, we ordinarily expect such a sentence to be

reasonable. United States v. Stanley, 739 F.3d 636, 656 (11th Cir. 2014). The

district court here sentenced Harris at the low end of the guideline range, despite

the government’s request that he receive a high-end sentence of 137 months’

imprisonment. Harris’s 110-month sentence is also well below the applicable 240-

month statutory maximum penalty under § 111(b), another indicator of the

sentence’s substantive reasonableness. See United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008). For these reasons, Harris has failed to show the

5 Case: 19-10260 Date Filed: 11/13/2019 Page: 6 of 6

district court abused its discretion in sentencing Harris to 110 months’

imprisonment.

Accordingly, we conclude that the district court’s alleged failure to properly

consider certain mitigating factors did not result in a procedurally or substantively

unreasonable sentence, and we affirm.

AFFIRMED.