United States v. Rufus Weasley James, II

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 12, 2021
• Docket: 20-12459
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12459 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cr-00187-SCB-AAS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUFUS WEASLEY JAMES, II,

Defendant-Appellant.

________________________

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

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Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM:

Rufus Weasley James, II, appeals his total sentence for distribution of fentanyl

and heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). He argues that his

above-guideline sentence of 60 months is procedurally and substantively

unreasonable because the district court did not adequately explain its basis for

imposing a sentence above the advisory guideline range and created an unwarranted

sentencing disparity with other defendants convicted of similar offenses. Because

Mr. James has failed to show that the district court abused its discretion, we affirm.

I

On January 22, 2019, Mr. James sold what he believed to be heroin to a buyer,

B.B., at a hotel. The substance also turned out to contain fentanyl, and shortly after

ingesting the drugs B.B. overdosed and lost consciousness. The woman who had

accompanied B.B. fled, but Mr. James, to his credit, immediately called 911 and

stayed with B.B. until the paramedics arrived. He also followed the dispatcher’s

instructions to keep B.B’s airway clear. B.B. was given Naloxone and transported to

the hospital, where he told medical staff and authorities that he had taken heroin. He

was later released from the hospital. Mr. James cooperated with law enforcement

throughout, giving his real name and number.

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The next day an undercover agent called Mr. James using the number he had

provided, posing as an addict and veteran in pain looking to buy opioids. Mr. James

met with the agent and sold him drugs from the same batch sold to B.B. During this

sale Mr. James told the agent that the heroin had “killed” B.B. and to only take a

small amount of the drug.

Mr. James sold drugs again to the undercover agent 11 days later. The

substance sold on this date contained only heroin.

A grand jury charged Mr. James with one count of distribution of fentanyl

resulting in serious bodily harm, one count of distribution of fentanyl, and one count

of distribution of heroin, all in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Mr.

James pled guilty before a magistrate judge to Counts 2 and 3 without a plea

agreement. A month later the government filed a superseding information to remove

the serious bodily injury allegation from Count 1. Mr. James entered a guilty plea

pursuant to a written plea agreement to Count 1 of the superseding information—

distribution of fentanyl without serious bodily injury. As part of the agreement, he

waived his right to appeal (with an exception for an above-guidelines sentence) and

agreed that the victim, B.B., suffered serious bodily injury from his use of fentanyl.

The presentence investigation report (PSR) calculated an advisory guidelines

imprisonment range of 10 to 16 months. This calculation was based on a total offense

level of 10 following a two-level reduction for acceptance of responsibility, and a

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criminal history category of III based on four criminal history points (for a prior

felony conviction and two misdemeanor convictions). Mr. James faced a statutory

maximum sentence of 20 years, but no mandatory minimum sentence.

The PSR did not identify any factors warranting a departure from the advisory

guidelines and acknowledged Mr. James’ claims for a downward departure based on

U.S.S.G. § 5H1.4 (physical condition), U.S.S.G. § 5K2.2 (physical injury), and

U.S.S.G. § 5K2.10 (victim’s conduct). The PSR noted, however, that an upward

variance might be warranted in order to sufficiently capture the harm caused by Mr.

James’ criminal conduct and the true nature and circumstances of the offense, and

to reflect the seriousness of Mr. James’ behavior.

Prior to the sentencing hearing, the government filed a memorandum

requesting an upward departure or a variance to a sentence of 78 months’

imprisonment. The departure request was pursuant to U.S.S.G. §§ 5K2.2 (physical

injury) and 5K2.21 (dismissed and uncharged conduct). The variance request was

based on the 18 U.S.C. § 3553(a) factors, to account for the serious bodily injury not

otherwise accounted for by the advisory guidelines range. Mr. James responded with

a sentencing memorandum, arguing that the § 3553(a) factors supported a shorter

sentence of incarceration with a longer term of supervised release.

Following a sentencing hearing, the district court adopted the PSR’s

guidelines computation and sentenced Mr. James to three concurrent 60-month

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terms of imprisonment. The district court based the sentence on (1) an upward

departure under U.S.S.G. § 5K2.21 and (2) an upward variance under 18 U.S.C. §

3553(a)—both based on the bodily injury to B.B. and Mr. James’ sale of drugs from

the same batch the day after B.B.’s injury. The district court explained that it would

have departed higher had it not been for the fact that Mr. James stayed with B.B.

until the paramedics arrived. See D.E. 83 at 39-41.1

II

Mr. James challenges his sentence on both procedural and substantive

reasonableness grounds. We review the reasonableness of a sentence under a

deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51

(2007). The same standard applies to our review of an upward departure from the

Sentencing Guidelines. See Koon v. United States, 518 U.S. 81, 97-98 (1996).

In reviewing the reasonableness of a sentence, we first consider whether the

district court committed a procedural error. See Gall, 552 U.S. at 51. Procedural

unreasonableness includes “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation

1 The district court did not explain how much of the sentence was based on the departure and how much was based on the variance.

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from the Guidelines range.” United States v. Docampo, 573 F.3d 1091, 1100 (11th

Cir. 2009) (internal quotations omitted).

“Although the district court must consider each of the factors listed in §

3553(a), it need not discuss each of those factors on the record.” United States v.

Gomez, 955 F.3d 1250, 1257 (11th Cir. 2020). “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 account.” Id. Nevertheless, when a district court imposes a

sentence outside the guideline range, it should explain why it has done so. See Rita

v. United States, 551 U.S. 338, 357 (2007). The length and detail of the explanation

required depends on the circumstances. See United States v. Livesay, 525 F.3d 1081,

1090 (11th Cir. 2008). Ultimately, the district court must say enough to show “that

[it] has considered the parties' arguments and has a reasoned basis” for its decision.

Id.

On substantive reasonableness review, “a district court abuses 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). The district court must issue

a sentence “sufficient, but not greater than necessary” to comply with the purposes

of § 3553(a)(2), which include the need for a sentence to reflect the seriousness of

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the offense, promote respect for the law, provide just punishment, deter criminal

conduct, and protect the public from future criminal conduct. See 18 U.S.C.

§ 3553(a). The weight given to any § 3553(a) factor is a matter generally committed

to the discretion of the district court. See United States v. Williams, 526 F.3d 1312,

1322 (11th Cir. 2008). A sentence imposed well below the statutory maximum

penalty is an indicator of a reasonable sentence. See United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008).

One of the sentencing factors, § 3553(a)(6), requires courts to consider “the

need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct” in imposing a sentence. “A

well-founded claim of disparity, however, assumes that apples are being compared

to apples.” Docampo, 573 F.3d at 1101. Thus, there can be no “unwarranted”

sentencing disparities among codefendants who are not similarly situated. See

United States v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015). “It is not enough for

a defendant to simply compare the sentences of other defendants . . . to his own;

there must be comparable underlying factual circumstances.” Id. “One needs to

have more than the crime of conviction and the total length of the sentences to

evaluate alleged disparities. The underlying facts of the crime and all of the

individual characteristics are relevant.” Id.

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Under § 5K2.21, a district court may depart upward to reflect the actual

seriousness of the offense based on conduct (1) underlying a charge dismissed as

part of a plea agreement in the case, or underlying a potential charge not pursued in

the case as part of a plea agreement or for any other reason; and (2) that did not enter

into the determination of the applicable guideline range.

III

After careful review, we are not left with a definite and firm conviction that

the district court committed a clear error of judgment. The upward departure and

variance was not an abuse of discretion because, as the court noted, Mr. James sold

fentanyl which caused serious bodily harm to B.B. and that injury was not charged

by the government in Count 1 of the superseding information. Moreover,

notwithstanding that incident, Mr. James then turned around and sold fentanyl to the

undercover agent from the same batch the very next day. Under the circumstances,

and given the language of U.S.S.G. § 5K2.21, the district court’s upward departure

and variance was permissible.2

The district court explicitly considered § 3553(a) factors and took into account

both aggravating and mitigating circumstances. The court noted that Mr. James

2 We recognize that the district court did not explain the extent of the departure and the extent of the variance. It did not say, for example, that it departed upward by 24 months and varied upward by 20 months. Nevertheless, any procedural error in this respect was harmless because on this record we would deem any combination of a departure/variance as substantively reasonable.

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called 911 and stayed with B.B., stating that it would have departed “much more”

otherwise, and recognized that Mr. James is a drug addict. The court also concluded,

however, that the Sentencing Guidelines range did not account for the serious bodily

injury to B.B. Though the court did not explicitly specify what portion of the

sentence was a variance and what was a departure, the court clearly laid out its

reasoning for the increased sentence. In its “statement of reasons,” D.E. 74, the court

relied on U.S.S.G. § 5K2.21 and also referenced 18 U.S.C. § 3553(a). The court

wrote that “[t]he defendant’s criminal conduct, in which he provided fentanyl to the

victim which caused the victim to overdose and sustain serious bodily injury” was

an aggravating factor, and that it “also determined that the recommended advisory

guidelines in this case did not accurately capture the true harm of the defendant’s

criminal conduct in the instant offense.” Id. Together, this was enough to show the

court “considered the parties' arguments and ha[d] a reasoned basis” for its decision.

See United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008). While we may

not have weighed these factors in the same way, the district court did not abuse its

discretion in imposing concurrent 60-month terms of imprisonment.

Mr. James also argues that the district court improperly considered not only

his conduct, but also the statutory sentencing range that would have resulted had

B.B.’s bodily harm been taken into account in terms of the Count 1 charge. As some

of our sister courts have noted, the penalty related to uncharged conduct can be

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helpful in assessing what sentence to impose. See United States v. Camiscione, 591

F.3d 823, 836 (6th Cir. 2010); United States v. Reif, 920 F.3d 1197, 1198 (8th Cir.

2019). Nothing in the record suggests that the district court improperly treated the

statutory penalty for the uncharged crime as the baseline or starting point for its

sentencing decision.

Finally, Mr. James contends that the district court created an unwarranted

sentencing disparity by imposing an above-guidelines-range sentence. See Irey, 612

F.3d at 1189. Based on the record before us, we cannot conclude that the district

court abused its discretion in this regard because it is unclear whether the individual

defendants that Mr. James lists as comparators were similarly situated. See

Docampo, 573 F.3d at 1101; Azmat, 805 F.3d at 1048.

The district court, in its discretion, put great weight on the temporal proximity

of Mr. James’ subsequent sale from the same batch of drugs that injured B.B. The

information Mr. James includes about the potential comparators does not establish

that those defendants shared that trait. Although Mr. James explains that these

defendants sold drugs that caused bodily harm, sometimes on multiple occasions, he

does not include information about the temporal proximity or potential shared source

of the drugs. Therefore, we cannot conclude that there is an unwarranted sentencing

disparity. See Azmat, 805 F.3d at 1048.

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IV

The district court properly considered uncharged conduct under U.S.S.G. §

5K2.21 and the 18 U.S.C. § 3553(a) sentencing factors, explained its reasoning, and

did not abuse its discretion in imposing an above-guidelines sentence. Nor did the

district court improperly treat the penalty associated with the uncharged conduct as

the starting point for its sentencing decision. Finally, Mr. James has failed to show

that his proposed comparators shared the trait key to the district court’s sentencing

decision, and we therefore cannot conclude that there is an unwarranted sentencing

disparity. Accordingly, we affirm Mr. James’ sentence.

AFFIRMED.