            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                                                         [DO NOT PUBLISH]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:
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       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.
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      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


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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).


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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.
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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.




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