USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-14185 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARQUAVION TILLMAN,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:20-cr-00012-CAR-CHW-1 ____________________ USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 2 of 7
2 Opinion of the Court 20-14185
Before LUCK, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: Marquavion Tillman appeals his sentence of 78 months’ im- prisonment for possessing a firearm as a felon and possessing a sto- len firearm. Tillman argues that the district court erred by increas- ing his criminal history score by two points under United States Sentencing Guidelines Manual § 4A1.1(e) because his previous con- victions under Georgia law were not for crimes of violence. Till- man also argues that the court gave him an unreasonable sentence because it referenced a book when commenting on his past con- duct, and because it failed to consider his allocution and other mit- igating factors. Because the sentence was both procedurally and substantively reasonable, we affirm. I.
Tillman pleaded guilty to knowingly possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and possessing a stolen firearm with knowledge or reasonable cause to believe it was stolen, in violation of 18 U.S.C. §§ 922(j), 924(a)(2). At sentencing, Tillman’s counsel asserted various miti- gating factors, and Tillman allocuted about his family background and non-violent tendencies. The district court added three points to Tillman’s criminal history score under U.S.S.G. § 4A1.1(a) because he had a previous sentence for obstruction and three counts of family violence USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 3 of 7
20-14185 Opinion of the Court 3
battery. It also applied two more criminal history points under Sec- tion 4A1.1(e) because his convictions for family violence battery concerned a “crime of violence.” It thus determined the advisory sentencing range to be 63 to 78 months. After considering the fac- tors in 18 U.S.C. § 3553(a), the court sentenced Tillman to 78 months’ imprisonment. It reasoned that his criminal history seemed to indicate sociopathic conduct, referencing a book by a psychiatrist about family violence. It also stated that Tillman had no respect for the law and that imprisonment would deter him from further criminal conduct and protect the public. Tillman now appeals his sentence. II.
Tillman argues first that his sentence was procedurally un- reasonable because the court incorrectly calculated the guideline range. Specifically, he asserts that his prior family violence battery convictions did not concern crimes of violence warranting a two- point increase under Section 4A1.1(e). He then argues that the sen- tence was substantively unreasonable because the court gave un- due weight to his criminal history, improperly relied on a book, and did not consider his allocution or other mitigating factors. We consider each of these arguments in turn. A.
We first examine the procedural reasonableness of the sen- tence. This Court reviews de novo a district court’s conclusion that a prior conviction is a crime of violence under the sentencing USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 4 of 7
4 Opinion of the Court 20-14185
guidelines. United States v. Romo-Villalobos, 674 F.3d 1246, 1247 (11th Cir. 2012). In doing so, “we typically apply a categorical ap- proach. That is, we look only at the fact of conviction and the stat- utory definition of the prior offense.” Id. at 1248. Section 4A1.1(e) provides for a one-point increase to a defendant’s criminal history score for each prior sentence for a “crime of violence” that did not receive any points because it was treated as a single sentence. A crime of violence is defined, in part, as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1); Id. § 4A1.1, com- ment. (n.5) (stating that, for purposes of Section 4A1.1(e), “crime of violence” is defined by Section 4B1.2(a)). We have clarified that “physical force” under this section means “violent force—that is, force capable of causing physical pain or injury to another person.” United States v. Williams, 609 F.3d 1168, 1169–70 (11th Cir. 2010) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). Tillman was convicted of Georgia family violence battery, which occurs when a person “intentionally causes substantial phys- ical harm or visible bodily harm to another” household member. Ga. Code § 16-5-23.1(a), (f)(2). The definition of simple battery in Section 16-5-23(a)(2) is almost identical to family violence battery, except it is does not require that the harm be substantial or visible. And we held in Hernandez v. U.S. Atty. Gen. that that category of simple battery is a crime of violence under 18 U.S.C. § 16(a) be- cause Georgia courts have interpreted it to require “actual physical contact that inflicts pain or injury.” 513 F.3d 1336, 1339–40 (11th USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 5 of 7
20-14185 Opinion of the Court 5
Cir. 2008). The definition of “crime of violence” in Section 16(a) is virtually the same as the one in Section 4B1.2(a)(1). So, because “there is no meaningful distinction between the relevant elements of Georgia simple battery and Georgia family violence battery,” Hernandez, 513 F.3d at 1341, the latter is a crime of violence under the Sentencing Guidelines. The district court therefore did not err in increasing Tillman’s criminal history score under Section 4A1.1(e). B.
We turn next to the substantive reasonableness of the sen- tence, which we review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence within the Guidelines range will generally be reasonable, especially when it falls well be- low the statutory maximum. United States v. Gonzales, 550 F.3d 1319, 1324 (11th Cir. 2008). A district court abuses its discretion if it does not consider factors that are due substantial weight, signifi- cantly weighs an improper factor, or clearly errs in its judgment in considering sentencing factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). While courts must be guided by the Section 3553(a) factors, they need not explicitly state that they considered each factor or discuss each factor. United States v. Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006). An acknowledgement that the court considered the factors is enough. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir.
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USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-14185 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARQUAVION TILLMAN,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:20-cr-00012-CAR-CHW-1 ____________________ USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 2 of 7
2 Opinion of the Court 20-14185
Before LUCK, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: Marquavion Tillman appeals his sentence of 78 months’ im- prisonment for possessing a firearm as a felon and possessing a sto- len firearm. Tillman argues that the district court erred by increas- ing his criminal history score by two points under United States Sentencing Guidelines Manual § 4A1.1(e) because his previous con- victions under Georgia law were not for crimes of violence. Till- man also argues that the court gave him an unreasonable sentence because it referenced a book when commenting on his past con- duct, and because it failed to consider his allocution and other mit- igating factors. Because the sentence was both procedurally and substantively reasonable, we affirm. I.
Tillman pleaded guilty to knowingly possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and possessing a stolen firearm with knowledge or reasonable cause to believe it was stolen, in violation of 18 U.S.C. §§ 922(j), 924(a)(2). At sentencing, Tillman’s counsel asserted various miti- gating factors, and Tillman allocuted about his family background and non-violent tendencies. The district court added three points to Tillman’s criminal history score under U.S.S.G. § 4A1.1(a) because he had a previous sentence for obstruction and three counts of family violence USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 3 of 7
20-14185 Opinion of the Court 3
battery. It also applied two more criminal history points under Sec- tion 4A1.1(e) because his convictions for family violence battery concerned a “crime of violence.” It thus determined the advisory sentencing range to be 63 to 78 months. After considering the fac- tors in 18 U.S.C. § 3553(a), the court sentenced Tillman to 78 months’ imprisonment. It reasoned that his criminal history seemed to indicate sociopathic conduct, referencing a book by a psychiatrist about family violence. It also stated that Tillman had no respect for the law and that imprisonment would deter him from further criminal conduct and protect the public. Tillman now appeals his sentence. II.
Tillman argues first that his sentence was procedurally un- reasonable because the court incorrectly calculated the guideline range. Specifically, he asserts that his prior family violence battery convictions did not concern crimes of violence warranting a two- point increase under Section 4A1.1(e). He then argues that the sen- tence was substantively unreasonable because the court gave un- due weight to his criminal history, improperly relied on a book, and did not consider his allocution or other mitigating factors. We consider each of these arguments in turn. A.
We first examine the procedural reasonableness of the sen- tence. This Court reviews de novo a district court’s conclusion that a prior conviction is a crime of violence under the sentencing USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 4 of 7
4 Opinion of the Court 20-14185
guidelines. United States v. Romo-Villalobos, 674 F.3d 1246, 1247 (11th Cir. 2012). In doing so, “we typically apply a categorical ap- proach. That is, we look only at the fact of conviction and the stat- utory definition of the prior offense.” Id. at 1248. Section 4A1.1(e) provides for a one-point increase to a defendant’s criminal history score for each prior sentence for a “crime of violence” that did not receive any points because it was treated as a single sentence. A crime of violence is defined, in part, as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1); Id. § 4A1.1, com- ment. (n.5) (stating that, for purposes of Section 4A1.1(e), “crime of violence” is defined by Section 4B1.2(a)). We have clarified that “physical force” under this section means “violent force—that is, force capable of causing physical pain or injury to another person.” United States v. Williams, 609 F.3d 1168, 1169–70 (11th Cir. 2010) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). Tillman was convicted of Georgia family violence battery, which occurs when a person “intentionally causes substantial phys- ical harm or visible bodily harm to another” household member. Ga. Code § 16-5-23.1(a), (f)(2). The definition of simple battery in Section 16-5-23(a)(2) is almost identical to family violence battery, except it is does not require that the harm be substantial or visible. And we held in Hernandez v. U.S. Atty. Gen. that that category of simple battery is a crime of violence under 18 U.S.C. § 16(a) be- cause Georgia courts have interpreted it to require “actual physical contact that inflicts pain or injury.” 513 F.3d 1336, 1339–40 (11th USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 5 of 7
20-14185 Opinion of the Court 5
Cir. 2008). The definition of “crime of violence” in Section 16(a) is virtually the same as the one in Section 4B1.2(a)(1). So, because “there is no meaningful distinction between the relevant elements of Georgia simple battery and Georgia family violence battery,” Hernandez, 513 F.3d at 1341, the latter is a crime of violence under the Sentencing Guidelines. The district court therefore did not err in increasing Tillman’s criminal history score under Section 4A1.1(e). B.
We turn next to the substantive reasonableness of the sen- tence, which we review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence within the Guidelines range will generally be reasonable, especially when it falls well be- low the statutory maximum. United States v. Gonzales, 550 F.3d 1319, 1324 (11th Cir. 2008). A district court abuses its discretion if it does not consider factors that are due substantial weight, signifi- cantly weighs an improper factor, or clearly errs in its judgment in considering sentencing factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). While courts must be guided by the Section 3553(a) factors, they need not explicitly state that they considered each factor or discuss each factor. United States v. Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006). An acknowledgement that the court considered the factors is enough. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). Courts may weigh one sentencing factor USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 6 of 7
6 Opinion of the Court 20-14185
substantially more than others, and this discretion is especially pro- nounced when considering a defendant’s criminal history. United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021). A court’s failure to discuss mitigating evidence does not demonstrate that it failed to consider the evidence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Here, Tillman’s sentence of 78 months’ imprisonment fell within the Guidelines range of 63 to 78 months, and it was well below the statutory maximum of 10 years. See 18 U.S.C. § 924(a)(2). The court stated that it considered the Section 3553(a) factors. See Turner, 474 F.3d at 1281. And it was not required to state that it considered Tillman’s allocution or mitigating argu- ments. See Amedeo, 487 F.3d at 833. The court’s comment about Tillman’s past sociopathic conduct concerned his criminal history, his respect for the law, deterrence, and protection of the public. See id. § 3553(a)(1), (2)(B), (2)(C). The court had substantial discretion to consider such factors. See Riley, 995 F.3d at 1279. We therefore conclude that the sentence was substantively reasonable. III.
Tillman’s sentence was procedurally reasonable because the elements of Georgia family violence battery fall within the defini- tion of a crime of violence under Section 4B1.2(a)(1), and a two- point increase to Tillman’s criminal history score under Section 4A1.1(e) was therefore warranted. The sentence was also substan- tively reasonable because the district court acted within its USCA11 Case: 20-14185 Date Filed: 12/08/2021 Page: 7 of 7
20-14185 Opinion of the Court 7
considerable discretion in weighing the sentencing factors, and it was not required to specifically discuss the mitigating assertions made by Tillman or his counsel. AFFIRMED.