Case: 18-11877 Date Filed: 04/30/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11877 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cr-00107-RBD-TBS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROMANDO HARRIS, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 30, 2019)
Before WILSON, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-11877 Date Filed: 04/30/2019 Page: 2 of 6
James Harris pled guilty to one count of being a felon in possession of a
firearm. 1 He appeals his 64-month sentence, which was imposed on remand after a
panel of this Court vacated his original 84-month sentence due to an improper
guidelines calculation. 2 In this appeal, Defendant argues that the district court did
not reasonably balance the factors identified in 18 U.S.C. § 3553(a) and that, as a
result, his sentence is substantively unreasonable.
I. Standards of Review
We review the reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41
(2007). The party who challenges the sentence bears the burden to show that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We have held that “a
general vacatur of a sentence by default allows for resentencing de novo.” United
States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010). Moreover, the Supreme
Court has advised:
1 The underlying facts of Defendant’s offense are set out in this Court’s first opinion, issued after Defendant’s appeal of his first sentence. See United States v. Harris, 719 Fed. App’x 946 (11th Cir. 2018). 2 At the first sentencing hearing, the district court had imposed several enhancements. We affirmed each of these enhancements except for the 4-level enhancement under § 2K2.1(b)(5), which applies when, as part of his offense, an offender has engaged in the trafficking of firearms. We found insufficient evidence to support this enhancement and remanded for the district court to recalculate the guidelines without its use. 2 Case: 18-11877 Date Filed: 04/30/2019 Page: 3 of 6
Because a district court’s original sentencing intent may be undermined by altering one portion of the calculus, an appellate court when reversing one part of a defendant’s sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy the sentencing factors in 18 U.S.C. § 3553(a).
Pepper v. United States, 562 U.S. 476, 507 (2011) (internal citations and
quotations omitted).
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 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. § 3553(a)(1). “The review for
substantive unreasonableness involves examining the totality of the circumstances,
including an inquiry into whether the statutory factors in § 3553(a) support the
sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
The district court is generally “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. It is sufficient that the district court considers the defendant’s
arguments at sentencing and states that it has taken the § 3553(a) factors into
3 Case: 18-11877 Date Filed: 04/30/2019 Page: 4 of 6
account.” United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (internal
quotations and citations omitted).
The weight given to any specific § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). Nonetheless, a court can abuse its discretion when it (1) fails to consider
relevant factors that were due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) commits a clear error of judgment by
balancing the proper factors unreasonably. United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). Moreover, a court’s unjustified reliance on any
one § 3553(a) factor may be indicative of an unreasonable sentence. United States
v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). However, placing substantial
weight on a defendant’s criminal history is consistent with § 3553(a) because five
of its factors reference criminal history. United States v. Rosales-Bruno, 789 F.3d
1249, 1263 (11th Cir. 2015).
Finally, although we do not presume that a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence
imposed well below the statutory maximum penalty is another indicator of a
reasonable sentence. See Gonzalez, 550 F.3d at 1324 (holding that the sentence
was reasonable in part because it was well below the statutory maximum).
4 Case: 18-11877 Date Filed: 04/30/2019 Page: 5 of 6
II. Discussion
In support of his argument that a 64-month sentence is substantively
unreasonable, Defendant argues that the considerations the district court articulated
at this second sentencing differed from those it focused on at the first sentencing.
Defendant notes that at the first sentencing hearing, the district court “placed great
weight on the fact that the . . . offense involved trafficking in firearms,” whereas at
the second sentencing hearing the court focused on the fact that the firearms at
issue were stolen and on Defendant’s criminal record. It is difficult to understand
the basis of this objection. One would not expect the district court to base its
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Case: 18-11877 Date Filed: 04/30/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11877 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cr-00107-RBD-TBS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROMANDO HARRIS, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 30, 2019)
Before WILSON, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-11877 Date Filed: 04/30/2019 Page: 2 of 6
James Harris pled guilty to one count of being a felon in possession of a
firearm. 1 He appeals his 64-month sentence, which was imposed on remand after a
panel of this Court vacated his original 84-month sentence due to an improper
guidelines calculation. 2 In this appeal, Defendant argues that the district court did
not reasonably balance the factors identified in 18 U.S.C. § 3553(a) and that, as a
result, his sentence is substantively unreasonable.
I. Standards of Review
We review the reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41
(2007). The party who challenges the sentence bears the burden to show that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We have held that “a
general vacatur of a sentence by default allows for resentencing de novo.” United
States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010). Moreover, the Supreme
Court has advised:
1 The underlying facts of Defendant’s offense are set out in this Court’s first opinion, issued after Defendant’s appeal of his first sentence. See United States v. Harris, 719 Fed. App’x 946 (11th Cir. 2018). 2 At the first sentencing hearing, the district court had imposed several enhancements. We affirmed each of these enhancements except for the 4-level enhancement under § 2K2.1(b)(5), which applies when, as part of his offense, an offender has engaged in the trafficking of firearms. We found insufficient evidence to support this enhancement and remanded for the district court to recalculate the guidelines without its use. 2 Case: 18-11877 Date Filed: 04/30/2019 Page: 3 of 6
Because a district court’s original sentencing intent may be undermined by altering one portion of the calculus, an appellate court when reversing one part of a defendant’s sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy the sentencing factors in 18 U.S.C. § 3553(a).
Pepper v. United States, 562 U.S. 476, 507 (2011) (internal citations and
quotations omitted).
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 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. § 3553(a)(1). “The review for
substantive unreasonableness involves examining the totality of the circumstances,
including an inquiry into whether the statutory factors in § 3553(a) support the
sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
The district court is generally “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. It is sufficient that the district court considers the defendant’s
arguments at sentencing and states that it has taken the § 3553(a) factors into
3 Case: 18-11877 Date Filed: 04/30/2019 Page: 4 of 6
account.” United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (internal
quotations and citations omitted).
The weight given to any specific § 3553(a) factor is committed to the sound
discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007). Nonetheless, a court can abuse its discretion when it (1) fails to consider
relevant factors that were due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) commits a clear error of judgment by
balancing the proper factors unreasonably. United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). Moreover, a court’s unjustified reliance on any
one § 3553(a) factor may be indicative of an unreasonable sentence. United States
v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006). However, placing substantial
weight on a defendant’s criminal history is consistent with § 3553(a) because five
of its factors reference criminal history. United States v. Rosales-Bruno, 789 F.3d
1249, 1263 (11th Cir. 2015).
Finally, although we do not presume that a sentence falling within the
guideline range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence
imposed well below the statutory maximum penalty is another indicator of a
reasonable sentence. See Gonzalez, 550 F.3d at 1324 (holding that the sentence
was reasonable in part because it was well below the statutory maximum).
4 Case: 18-11877 Date Filed: 04/30/2019 Page: 5 of 6
II. Discussion
In support of his argument that a 64-month sentence is substantively
unreasonable, Defendant argues that the considerations the district court articulated
at this second sentencing differed from those it focused on at the first sentencing.
Defendant notes that at the first sentencing hearing, the district court “placed great
weight on the fact that the . . . offense involved trafficking in firearms,” whereas at
the second sentencing hearing the court focused on the fact that the firearms at
issue were stolen and on Defendant’s criminal record. It is difficult to understand
the basis of this objection. One would not expect the district court to base its
sentence on the potential trafficking aspect of the offense, as defined by the
Guidelines, given our remand of the case and conclusion that an enhancement
based on gun trafficking was not supported by the evidence. 3 Nor would one think
that Defendant would wish for the district court to focus again on that aggravating
factor.
Instead, the court noted, as important factors in its assessment, Defendant’s
prior criminal history and the fact that the firearms at issue were stolen, having
been taken in a recent burglary. Consideration of these two matters was clearly
3 There was no question that Defendant and his co-defendant intended to sell the stolen guns that Defendant was storing. But our first opinion noted that, to obtain an enhancement based on trafficking, the Government had to show that the defendant intended to transfer the firearm to someone he had reason to believe could not legally possess the weapon. The Government failed to do so. See Harris, 719 Fed. App’x at 950. 5 Case: 18-11877 Date Filed: 04/30/2019 Page: 6 of 6
proper under § 3553(a). Defendant also argues that, because the district court
sentenced him to the low end of the range as calculated during his original
sentencing (the 84–105 months), the court was likewise required to sentence him at
the low end of the newly-calculated range on remand (57–71 months). Instead, the
cout imposed a 64-month sentence, which was in the middle of the new range.
Yet, that the district court decided that a sentence at the low-end of a higher
guidelines range was reasonable does not mean that it would necessarily conclude
that a sentence at the low-end of a reduced range would likewise be a “sufficient”
sentence under § 3553(a). See Pepper, 562 U.S. at 507.
In short, the district court imposed a within-guideline, middle-of-the-range
sentence that was substantially less than the 10-year maximum sentence. We
conclude that the sentence was substantively reasonable. See Hunt, 526 F.3d at
746; Gonzalez, 550 F.3d at 1324. Accordingly, we affirm.
AFFIRMED.