           Case: 16-10375   Date Filed: 01/26/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10375
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:15-cr-60121-WJZ-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DEVANE JENKINS,

                                                         Defendant-Appellant.

                       ________________________

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

                            (January 26, 2017)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Devane Jenkins pleaded guilty to one count of aiding and abetting a Hobbs

Act robbery in violation of 18 U.S.C. § 1951(a), and one count of aiding and

abetting the knowing use and possession of a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced him to a total

of 288 months imprisonment — 168 months for the robbery offense and 120

months for the firearm offense to run consecutively. Jenkins challenges his

sentence for the robbery offense, contending that it is procedurally unreasonable

because the district court did not adequately explain the reasons for the upward

variance it imposed. He also contends that the sentence for the robbery offense is

substantively unreasonable because the district court (1) failed to properly consider

his history and characteristics and (2) imposed an upward variance based on

conduct already considered in United States Sentencing Guidelines enhancements.

                                          I.

      Jenkins and Keondrae Neely robbed a restaurant. In the course of the

robbery, Jenkins hit an employee on the head with a gun and fired his gun three

times at a car after the driver refused to move it from blocking them in. Jenkins

and Neely’s escape led to a high speed police chase, which ended with Jenkins

crashing into another car, a foot pursuit, and finally their apprehension by the

police. Once caught, both Jenkins and Neely confessed.

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      Jenkins pleaded guilty to both offenses. The district court calculated his

advisory guideline range as 70 to 87 months imprisonment for the robbery offense,

followed by a mandatory consecutive 120 months imprisonment for the firearm

offense. Jenkins asked for a 60 month sentence for the robbery offense based on

his history and characteristics, and the government sought a 240 month sentence

for that offense — the statutory maximum — arguing that Jenkins’ criminal history

category understated his prior criminal record. The district court sentenced Jenkins

to 168 months imprisonment for the robbery offense to run consecutively with a

sentence of 120 months for the firearm offense.

                                          II.

      We review for abuse of discretion the reasonableness of a sentence. Gall v.

United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). Under that standard,

we will sometimes “affirm the district court even though we would have gone the

other way had it been our call.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc). “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” but balancing them unreasonably.

Id.

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      When reviewing the reasonableness of a sentence, we first ensure that the

district court committed no significant procedural error, such as improperly

calculating the guideline range or inadequately explaining the chosen sentence.

Gall, 552 U.S. at 51, 128 S. Ct. at 597. We then examine whether the sentence was

substantively reasonable in light of the totality of the circumstances. Id. “The

party challenging the sentence bears the burden to show it is unreasonable in light

of the record and the [18 U.S.C.] § 3553(a) factors.” United States v. Tome, 611

F.3d 1371, 1378 (11th Cir. 2010)

                                              A.

      Jenkins first contends that his 168 month sentence on the robbery count was

procedurally unreasonable because the district court did not adequately explain the

reasons for the upward variance. If a district court determines that a sentence

outside the guidelines range is warranted, it “must consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. “[A] major

departure should be supported by a more significant justification than a minor one.

After settling on the appropriate sentence, [the district court] must adequately

explain the chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.” Id.

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      The district court’s explanation of the upward variance was sufficient. In

sentencing Jenkins to 168 months imprisonment for the robbery offense, the court

explained that it had considered the statements of all parties, the advisory guideline

range, and all of the § 3553(a) factors. The court acknowledged that it was

imposing an upward variance for the reasons given by the government in its

motion for an upward variance. Those reasons were extensive.

      For example, in its motion, the government explained that Jenkins had been

given many chances at rehabilitation in the past but continued to reoffend, had

narrowly avoided killing two victims during the commission of two violent crimes,

and had committed a violent crime even while he was incarcerated. It also noted

that his prior criminal history record included several burglary convictions and one

conviction for armed robbery with a firearm, but “[i]n several cases, [Jenkins]

either received no criminal history points or only received one criminal history

point under Section 4A1.1(e) [of the guidelines] because there was no intervening

arrest and the cases were deemed to be related.” It argued that his criminal history

showed that he was violent and dangerous, and indicated a strong likelihood that

he would commit future crimes.

      At the sentence hearing, the government similarly explained that Jenkins’

“criminal history [category] clearly understates the amount of danger that [he]

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presents to this community.” The government discussed at length that history and

his “pattern of violence,” describing Jenkins’ “first contacts with the system” at

age twelve and many other instances of violent crimes ever since. For example, it

described his robbery of another child whom he shot in the eye with a BB gun

when he was twelve years old. At sixteen years old, he entered a restaurant with a

gun and attempted to rob everyone inside. The government explained that, during

that robbery, he stood over one victim with his firearm and pulled the trigger, but

the gun malfunctioned and didn’t fire. It noted that the victim in this case, much

like the victim in that robbery, narrowly escaped death. It also described his

violent assault of another inmate while Jenkins was incarcerated, where Jenkins

“was armed with a metal shank that he had made while in custody.” The

government noted that, just five months after he was released from that

imprisonment, he committed the armed robbery in this case.

      Based on his prior crimes, many of which were violent, the government

stated that his pattern of violence appeared to be escalating. It acknowledged that

the court should consider Jenkins’ unfortunate background in determining his

sentence, although it noted that Jenkins’ mother denied several of his statements

about his upbringing. It asserted that the § 3553(a) factors — particularly the need

for the sentence to reflect the seriousness of the offense, to promote respect for the

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law, to provide just punishment, to afford adequate deterrence to others, and to

protect the public — warranted an upward variance to 240 months, the statutory

maximum, for the robbery offense.

      The record also reflects that the district court listened to the arguments of

both the government and the defense at the sentence hearing, interjected with

questions during defense counsel’s arguments, and understood Jenkins’

characteristics and difficult background. See Rita v. United States, 551 U.S. 338,

357–58, 127 S. Ct. 2456, 2468–69 (2007) (holding that a sentencing judge’s brief

explanation was legally sufficient because the record showed that the judge

listened to each argument, considered supporting evidence, and was aware of the

defendant’s characteristics and background). For example, at the sentence hearing

defense counsel extensively described Jenkins’ background, emphasizing the

physical and sexual abuse that Jenkins suffered when he was younger, as well as

his addiction to drugs. After listening to those statements, the court asked defense

counsel to explain why Jenkins should receive a shorter sentence than Neely

received, as Jenkins “was the prime mover in this scheme” and “was far more

culpable” than Neely. The court explained that it did not dispute that Jenkins came

from a terrible background, but it decided to vary upwards from the guidelines

range based on his extensive criminal history.

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         Based on that reason, the government’s reasons, and the other reasons the

court provided at the sentence hearing, the court concluded that an upward

variance was justified. Because the district court gave a “significant justification”

for its upward variance, and because its reasons for imposing the sentence were

clear from the record, its explanation of the upward variance was sufficient. Gall,

552 U.S. at 50, 128 S. Ct. at 597. As a result, the sentence was not procedurally

unreasonable.

                                          B.

         Jenkins next contends that his 168 month sentence was substantively

unreasonable. He argues that the district court failed to properly consider his

history and characteristics. In imposing a particular sentence, a district court must

consider several factors. See 18 U.S.C. § 3553(a). One of those factors is the

“history and characteristics of the defendant.” Id. § 3553(a)(1). As we have

already explained, the district court did consider Jenkins’ history and

characteristics in determining his sentence. Its decision to give other factors

greater weight was within its discretion. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.”). As a result, his argument

fails.

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      Jenkins also contends that the sentence was substantively unreasonable

because, in imposing the upward variance, the district court considered conduct

that had already been considered in determining his advisory guidelines range.

This Court has previously explained that, when imposing a variance, a district

court can rely on certain aspects of a defendant’s conduct that it has already

considered in imposing an enhancement, particularly where a defendant’s conduct

was egregious or extraordinary. United States v. Amedeo, 487 F.3d 823, 833–34

(11th Cir. 2007). As a result, the district court did not abuse its discretion when

considering a variance by relying on conduct already included as the basis for an

enhancement.

      AFFIRMED.




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