USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11094 Non-Argument Calendar ________________________
D.C. Docket No. 7:19-cr-00220-LSC-SGC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEMARKUS VONSHA THOMPSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(August 31, 2021)
Before NEWSOM, ANDERSON, and ED CARNES, Circuit Judges.
PER CURIAM: USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 2 of 17
Jemarkus Thompson, Ladarius Watson, and Quartais Rodgers committed
two Hobbs Act robberies. Thompson was the getaway driver; he drove Watson’s
car and waited outside while Watson and Rodgers robbed two separate businesses
at gunpoint. All three of them were arrested and indicted on robbery and
brandishing firearms counts. Thompson pleaded not guilty and went to a jury trial,
but Watson and Rodgers pleaded guilty and testified against Thompson.
Thompson was convicted and sentenced to 214 months imprisonment, which was
the bottom of his guidelines range. Watson was sentenced to 180 months
imprisonment and Rodgers was sentenced to 95 months imprisonment.
This is Thompson’s appeal of his sentence. He contends that the district
court did not adequately explain its reasons for imposing his sentence and that his
sentence is substantively unreasonable because it is longer than the sentences of
Watson and Rodgers. We disagree.
I.
Watson and Rodgers spent a day driving around in Watson’s car doing
drugs — ecstasy and marijuana. Watson had an AR-15 in the back seat and
Rodgers had a pistol with him. When night fell, they decided to rob someone.
Watson called Thompson and the three of them met shortly after 9 p.m.
Thompson got in the driver’s seat of Watson’s car and drove the trio to a
convenience store. Once there, Watson and Rodgers got out of the car, entered the
2 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 3 of 17
store armed with the guns, and robbed the cashier at gunpoint. Watson shoved the
barrel of the AR-15 into the cashier’s chest while Rodgers took money from the
cash register. Thompson stayed in the car.
After Watson and Rodgers returned to the car, they decided to rob a Subway
restaurant. Again, Thompson drove them there and waited in the car while Watson
and Rodgers went and robbed the owner at gunpoint. During that robbery Watson
and Rodgers became impatient with the speed at which the owner was opening the
cash register, which led Watson to hit the owner in the back of his neck with the
AR-15 and Rodgers to hit him in the back of the neck with the pistol. They
returned to the car and Thompson drove them to a nearby apartment complex.
Shortly after that, and before they could divide the money among themselves
as they had planned to do, they were arrested together. While being interviewed
by the police, Watson initially denied his involvement in the robberies but then
admitted to it and told the police that Thompson had knowingly been the getaway
driver. Rodgers also confessed and said the same thing about Thompson’s role.
Thompson denied involvement, telling the police that he had entered the car only
after the robberies and that he had not known about them.
All three were indicted for two counts of aiding and abetting each other in
committing Hobbs Act robbery, in violation of 18 U.S.C. § 1951(b)(1), and two
counts of aiding and abetting each other in brandishing firearms during the
3 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 4 of 17
robbery, in violation of 18 U.S.C. 924(c)(1)(A)(ii). Watson and Rodgers both
pleaded guilty, but Thompson did not; instead, he went to a jury trial where
Watson and Rodgers testified against him. He was convicted on all counts.
When it came to sentencing, certain statutory mandatory minimums applied
to all three defendants. The two brandishing firearm counts each required a 7-year
(or 84 month) mandatory minimum term of imprisonment to run consecutive to all
other sentences. See 18 U.S.C. § 924(c)(1)(A)(ii); id. § 924(c)(1)(D)(ii). That
meant they all had a mandatory minimum of 168 months imprisonment. Those
counts also carried a statutory maximum of life imprisonment.
Because Watson and Rodgers had pleaded guilty, cooperated with, and
assisted the government, the government moved for them to get sentence
reductions that would allow them to be sentenced below the mandatory minimum.
See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The government requested that each
of them be sentenced to 95 months imprisonment. The court adopted that
recommendation as to Rodgers. Watson, on the other hand, was sentenced to 180
months because the court found that he had been involved in three additional
robberies that were not part of the conduct he pleaded guilty to. See generally
United States v. Watson, 842 F. App’x 460 (11th Cir. 2021) (affirming sentence).
As for Thompson, his PSR noted that he was subject to the mandatory
minimum 168 months imprisonment for the brandishing firearms counts. And on
4 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 5 of 17
the two Hobbs Act robbery counts, the PSR recommended an advisory guidelines
range of 46 to 57 months, which the district court adopted. That range was based
on an offense level of 22 and a criminal history category of II; he was in that
criminal history category based on a previous conviction for receiving stolen
property.
At the sentence hearing, which came after Watson and Rodgers had been
sentenced, Thompson requested a downward variance to a below-guidelines
sentence of time served for the Hobbs Act robbery counts. Reiterating what he had
argued in a sentencing memorandum, Thompson (through his attorney) told the
court that he “still maintains his innocence.” And he argued that his sentence
should be lower than the sentences given to Watson and Rodgers because he
“never got out of the car during the robberies” and had not engaged in the violent
conduct that his codefendants had.
The court considered and rejected that argument. It stated that “while it may
seem to be and it is a legitimate argument and I hear it often that this person was
just the get-away driver,” the driver “is, nonetheless, responsible for the crime.”
“But for the get-away driver,” the court stated, “the people that committed the
crime would stay at the premises or have to run down the street with the guns in
hand and cash and what-not and be more quickly apprehended.” And the court
applied that reasoning to Thompson, stating that “[b]ut for the get-away driver,
5 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 6 of 17
instead of having two of these robberies, there would have just been one of these
robberies because they would have been running down the street and would
certainly be caught by the police.” The court rounded out the thought: “The get-
away driver set into motion by driving the vehicle the violent attacks” committed
by his codefendants.
The court also considered the government’s recommendation, which was to
sentence Thompson to 25 years (300 months) imprisonment, but rejected that as
too high. Instead, it chose to sentence him at the low end of the guidelines range,
which was a sentence that the court believed was “appropriate for his role.” That
came out to a sentence of 214 months imprisonment: the 168-month mandatory
minimum plus 46 months for the Hobbs Act robbery counts. That was the lowest
within-guidelines sentence available.
The court stated that the sentence was “appropriate when I consider his
circumstances, it’s appropriate for considering the circumstances of the offense,
[and] the need to protect the public from this defendant’s criminal activity.” The
court also pointed out that Thompson “obviously is not remorseful,” noting that
“he is not remorseful now nor is he — he didn’t plead guilty.”
The court also noted “[f]or the record,” that it “was not particularly happy
with going along with the recommendation to reduce the sentence to the other
defendants but I think they are actually charged with other crimes as well that are
6 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 7 of 17
coming up that they are going to be paying the price for then. So, their time in
court is not over with either.”
II. ANALYSIS
Thompson challenges his sentence on procedural and substantive grounds.
We generally “review the reasonableness of a sentence . . . using a two-step
process.” United States v. Cabezas-Montano, 949 F.3d 567, 605 (11th Cir. 2020).
We look first at procedural reasonableness, considering “whether the district court
committed any significant procedural error, such as . . . failing to explain
adequately the chosen sentence.” Id.; see also United States v. Irey, 612 F.3d
1160, 1194 (11th Cir. 2010) (en banc) (“[T]he adequacy of a district court's
findings and sentence explanation is a classic procedural issue, not a substantive
one.”). We then look at substantive reasonableness, considering “whether the
sentence is substantively unreasonable in light of the [18 U.S.C.] § 3553(a) factors
and the totality of the circumstances.” Cabezas-Montano, 949 F.3d at 605.
A.
The procedural error that Thompson asserts the district court committed is
failing to adequately explain the reason for the sentence it imposed on him.
Thompson focuses on what he argues was the court’s failure to specifically explain
the disparity between his sentence and the sentences of his codefendants. The
parties dispute whether we should review the procedural challenge under a de novo
7 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 8 of 17
or plain error standard. See United States v. Parks, 823 F.3d 990, 995–96 (11th
Cir. 2016); United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006). But we
need not decide that issue because under any standard our precedent makes clear
that Thompson’s challenge fails and that the court’s explanation of the sentence
was adequate.
A district court at the time of sentencing must state its reasons for imposing
the sentence it does. Rita v. United States, 551 U.S. 338, 356–57 (2007) (citing 18
U.S.C. § 3553(c)). But the court need not provide detailed reasoning or make
specific findings about the 18 U.S.C. § 3553(a) factors and we “have never
required or expected district judges to compose a doctoral thesis to explain why
they have imposed a particular sentence.” Irey, 612 F.3d at 1195. “[T]he district
court is not required to incant specific language or articulate its consideration of
each individual § 3553(a) factor, so long as the whole record reflects the district
court's consideration of the § 3553(a) factors.” Cabezas-Montano, 949 F.3d at 609.
That is true “particularly where, . . . it is obvious the court considered many of
the § 3553(a) factors.” Bonilla, 463 F.3d at 1182.
The court’s explanation must “satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” Rita, 551 U.S. at 356. And “[w]hen the district
court fails to mention the § 3553(a) factors, we look to the record to see if the
8 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 9 of 17
district court did, in fact, consider the relevant factors.” Cabezas-Montano, 949
F.3d at 609.
The record shows that the district court did not fail to mention the § 3553(a)
factor or fail to satisfy us that it considered the parties’ arguments and had a
reasoned basis for its decision. As for the § 3553(a) factors, the court noted that its
“job is to sentence the defendant to a sentence which is sufficient but not more than
necessary to accomplish the sentencing goals set forth in the federal statutes.” To
do so, it mentioned many of the factors explicitly: Thompson’s personal
circumstances, the circumstances of the offense, and the need to protect the public.
It also discussed Thompson’s lack of remorse, which is relevant to several of the
§ 3553(a) factors. See United States v. McNair, 605 F.3d 1152, 1231 (11th Cir.
2010) (noting that lack of remorse is relevant “as to several factors, such as the
characteristics of a defendant, the need to promote respect for the law, and the need
to protect society”). From the record, “it is obvious the court considered many of
Thompson’s only argument at sentencing was that because he was just the
getaway driver, he was less culpable than his codefendants and should get a lower
sentence than them. The court expressly considered that argument and gave two
transcript paragraphs of reasons for rejecting it. As the court explained, it had
often heard that same argument from getaway drivers but believed that the driver
9 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 10 of 17
“is, nonetheless, responsible for the crime.” It is the driver who sets the crime in
motion, and without him the actual robbers would be more easily and quickly
arrested, and that would result in some later robberies being prevented.
Thompson argues that we should find fault with the district court for not
explaining the difference between his sentence and those of his codefendants. We
have never required a district court to do that. But even if we did, the district court
gave a sufficient explanation when it responded to Thompson’s argument at the
sentence hearing, which was based entirely on disparity, and discussed his role in
the offense along with other factors. The court said enough.
B.
Thompson also argues that, even if the district court adequately explained
his sentence, the reasons it gave were not convincing and the sentence was
substantively unreasonable. It is Thompson’s burden to show “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).
“We review the reasonableness of the sentence only for an abuse of
discretion, and in conducting our deferential review we consider the totality of the
circumstances, including the extent of any variance from the Guidelines range.”
United States v. Isaac, 987 F.3d 980, 994 (11th Cir. 2021) (quotation marks
10 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 11 of 17
omitted). Under the abuse of discretion standard, “we will sometimes ‘affirm the
district court even though we would have gone the other way had it been our call.’”
Rosales-Bruno, 789 F.3d at 1254 (quoting Irey, 612 F.3d at 1189). That means the
relevant question is not what we might have done in the first instance, but whether
the sentence is within the range of permissible outcomes. Id. The district court’s
chosen “sentence need not be the most appropriate one, it need only be a
reasonable one.” United States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021). It
follows that we will vacate a sentence as substantively unreasonable “if, but only
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.” Irey, 612 F.3d at 1190.
A district court abuses its discretion when it (1) fails to consider 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 by balancing the
proper factors unreasonably. Id. at 1189. The district court commits a clear error
of judgment when it considers the proper factors but weighs them unreasonably.
Id. The factors the district court is to consider include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to reflect the seriousness of the offense, to
11 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 12 of 17
promote respect for the law, and to provide just punishment for the offense as well
as to afford specific and general deterrence; (3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for the applicable
category of offense; (5) any pertinent policy statement in effect; (6) the need to
avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct; and (7) the need to provide restitution to
any victims of the offense. 18 U.S.C. § 3553(a).
In keeping with the deferential abuse of discretion standard, we have
emphasized that a district court has discretion in weighing the § 3553(a) factors
and that “we will not substitute our judgment in weighing the relevant factors.”
United States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009) (quotation marks
omitted). Although a “district court’s unjustified reliance on any one [§] 3553(a)
factor may be a symptom of an unreasonable sentence,” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008), and “[a]lthough the district court must
consider all the applicable § 3553(a) factors, it does not have to give all of them
equal weight and it may in its sound discretion attach ‘great weight to one factor
over others.’” Isaac, 987 F.3d at 995 (quoting Rosales-Bruno, 789 F.3d at 1254).
As we have reiterated: “The weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court, and the court is
permitted to attach great weight to one factor over others. That is what discretion
12 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 13 of 17
in weighing factors is about.” Riley, 995 F.3d at 1279 (quotation marks and
citations omitted).
Thompson argues that the district court made a clear error of judgment by
placing too much weight on Thompson’s lack of remorse, asserting that it “focused
too singularly on the fact that [he] went to trial.” Thompson also argues that the
court created an unreasonable disparity between his sentence and the sentences of
his codefendants; his sentence should not have been longer than theirs, he says,
because as the getaway driver his offense conduct was far less culpable.
As Thompson puts it, the district court abused its discretion by deciding that
his “decision about how to plead and whether to go to trial dwarfed all other
considerations.” The district court did not, however, rest its conclusion that he
lacked remorse solely on his decision to go to trial. Thompson did not merely
deny his guilt by going to trial. Even after being found guilty, Thompson did not
accept the verdict, did not acknowledge his guilt, and did not otherwise accept
responsibility. Instead, in both a sentencing memorandum and through his
attorney’s argument at the sentence hearing, Thompson continued to assert that he
was not guilty. He steadfastly refused to accept responsibility. No wonder the
court found: “He obviously is not remorseful.”
A pronounced lack of remorse, a steadfast refusal to accept responsibility, is
an important sentencing consideration. It is relevant to several § 3553(a) factors,
13 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 14 of 17
such as the defendant’s individual characteristics, the need to protect the public,
and the need to promote respect for the law. See McNair, 605 F.3d at 1231. It also
relates to specific deterrence and the likelihood that the defendant will commit
more crimes. Cf. Riley, 995 F.3d at 1280–81 (noting the district court’s emphasis
on criminal history is consistent with § 3553(a) because five of the factors are
related to criminal history).
Thompson argues that the court should have given more weight to his role
in the offense. The court did consider his role as the getaway driver and explained
why that was a key role and did not weigh much, if at all, in his favor. District
courts have considerable discretion in the weight they put on a particular § 3553(a)
factor, both standing alone and compared to other factors. See, e.g., Riley, 995
F.3d at 1279. “We do not reweigh relevant factors nor do we remand for re-
sentencing unless the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence outside the range of
reasonable sentences.” Langston, 590 F.3d at 1237. We see no clear error of
judgment in how the court weighed the various factors, nor do we think
Thompson’s “sentence [is] outside the reasonable range of sentences.” Id.
Thompson also argues that by giving him a longer sentence than his
codefendants, the court created an unwarranted sentence disparity. That, he says,
runs afoul of a § 3553(a) factor requiring courts to consider “the need to avoid
14 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 15 of 17
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
As the text of the statute indicates, the relevant sentencing disparity for
§ 3553(a)(6) is the disparity between similarly situated defendants. See, e.g.,
United States v. Abovyan, 988 F.3d 1288, 1311 (11th Cir. 2021). “[T]here can be
no ‘unwarranted’ sentencing disparities among codefendants who are not similarly
situated.” United States v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015). And
defendants “who cooperate with the government and enter a written plea
agreement are not similarly situated to a defendant who provides no assistance to
the government and proceeds to trial.” Abovyan, 988 F.3d at 1311 (quoting United
States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009)). Thompson is not
situated similarly with his two co-defendants who pleaded guilty and cooperated.
Not nearly.
We have said that “there is no unwarranted disparity when a cooperating
defendant pleads guilty and receives a lesser sentence than a defendant who
proceeds to trial.” Azmat, 805 F.3d at 1048 (quoting Langston, 590 F.3d at 1237).
And said that “[t]here is no unwarranted disparity even when the sentence the
cooperating defendant receives is substantially shorter.” Abovyan, 988 F.3d at
1311 (quotation marks omitted) (emphasis added). And also said that “any
disparity between the sentences of [the noncooperating defendant] and [the
15 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 16 of 17
cooperating defendant] is not an ‘unwarranted’ sentence disparity within the
meaning of § 3553(a)(6), much less one that required the district court to impose a
lower sentence regardless of the other § 3553(a) factors.” Id.; see also Langston,
590 F.3d at 1237 (“Therefore, any sentencing disparity was not unwarranted.”).
Thompson, unlike his codefendants, did not plead guilty or cooperate with
the government, meaning he was not similarly situated to them. Because they were
not similarly situated, his codefendants receiving certain sentence reductions for
cooperation and ultimately receiving lower sentences than Thompson did not
create an unwarranted sentencing disparity for purposes of § 3553(a)(6). Our
decisions make that clear.
Thompson pretty much concedes those principles but tries a workaround.
He acknowledges that, in his words, “cooperation is a warranted basis for different
sentences,” but he argues that “the extent of the difference must be warranted too,”
and he says that the extent of the difference in sentences is unwarranted here. But
our decisions unambiguously teach that there is no unwarranted sentencing
disparity if the defendants are not similarly situated in regards to admitting guilt
and cooperating, and even substantial differences in sentences are permitted in that
circumstance.
Thompson’s failure to accept responsibility was just one of the factors that
led to his sentence. See Abovyan, 988 F.3d at 1311. The district court did decide
16 USCA11 Case: 20-11094 Date Filed: 08/31/2021 Page: 17 of 17
this factor was important and did assign it substantial weight, but sentencing courts
have a lot of discretion when it comes to making those types of decisions. See
Cabezas-Montano, 949 F.3d at 612 (“The district court was well within its
substantial discretion to weigh more heavily [those] other considerations.”). In
light of the totality of the circumstances, we are not left with a definite and firm
conviction that the court committed a clear error of judgment.
We close with these observations. Thompson received a sentence at the very
bottom of his guidelines range — only 46 months of his sentence was not part of a
mandatory minimum. We ordinarily expect a sentence within the guidelines range
to be a reasonable one, e.g., Isaac, 987 F.3d at 994, and a “sentence fall[ing] near
the bottom of the . . . advisory guidelines range [is] a strong indication of
reasonableness,” Cabezas-Montano, 949 F.3d at 611. “Another indication of a
reasonable sentence is that it is below the statutory maximum penalty of life
imprisonment.” United States v. Castaneda, 997 F.3d 1318, 1332 (11th Cir. 2021).
Thompson’s sentence was well below the statutory maximum of life imprisonment.
It was not unreasonable.
AFFIRMED.