          Case: 19-13736    Date Filed: 08/06/2020   Page: 1 of 4



                                                     [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13736
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:18-cr-00031-TJC-PDB-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,



                                 versus



BYRON HICKS,

                                             Defendant - Appellant.

                      ________________________

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

                            (August 6, 2020)
                  Case: 19-13736   Date Filed: 08/06/2020   Page: 2 of 4



Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

       Byron Hicks appeals his 78-month sentence after a jury found him guilty of

distributing a controlled substance. He argues that his above-guideline sentence

was based upon acquitted conduct in violation of the Fifth and Sixth Amendments.

After a careful review of the record, we disagree and affirm the sentence of the

district court.

       Hicks was charged with five counts of distribution of a controlled substance

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count One also alleged that an

individual, T.A., died because of the controlled substances Hicks distributed.

Hicks proceeded to trial and a jury found him guilty of all five counts of

distribution of a controlled substance. However, the jury acquitted him of the

charge in Count One that T.A. died because of the controlled substances

distributed by Hicks.

       The probation office prepared a Presentence Investigation (PSI) report and

determined that Hicks’s guidelines range was 10 to 16 months imprisonment. The

government filed a motion requesting an upward departure or variance from the

guidelines to fifteen years. At sentencing, the government argued that the

guidelines range was not an appropriate sentence for Hicks because the

preponderance of the evidence showed that he was responsible for the victim’s


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death. The government also noted the opioids dealt by Hicks were extremely

potent, and Hicks displayed recklessness towards his buyers by resuming sales

within a week of the victim’s death. Hicks argued for a guidelines sentence, which

effectively would have been time served.

       The court decided to postpone sentencing until it had an opportunity to

think longer about the appropriate sentence. Upon reconvening, the court noted

the difficulty when fashioning an appropriate sentence where the parties have such

a wide gap in their recommendations and said he used the postponement to “give

the matter some thought.” The court stated that “the government, in effect, seeks

me to hold Mr. Hicks accountable for” the victim’s death and that the court “under

established law . . . does have the authority to consider what’s called acquitted

conduct as part of a sentencing rationale.” The court, however, expressed that it

was “reluctant to do so” here because he thought the “jury’s not guilty verdict as to

this aspect of the case . . . deserves to be respected.” The court then made the

following statement: “Having said that, I -- I am not going to accept what I believe

to be the government’s invitation to, in effect, make my own conclusion and base

my sentence on the idea that [the victim’s] death was as a result of the drugs sold

to him by the -- by the defendant.” The court sentenced Hicks to a 78-month term

of imprisonment, followed by three years supervised release, citing the need to

deter Hicks from future crimes and account for the fact that Hicks continued to


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deal drugs even after he was aware of the fact that his drugs may have killed

someone.

       Despite the court’s clear statement that it was rejecting the “government’s

invitation” to sentence Hicks based on acquitted conduct, Hicks argues that this is

precisely what the court did.1 In essence, Hicks’s argument boils down to this: the

district court’s rationale are insufficient to justify the upward variance, therefore

the district court must have surreptitiously, relied on acquitted conduct. We

decline Hicks’s invitation to substitute mere speculation for the stated reasons of a

district court when pronouncing sentence.

       AFFIRMED.




       1
        Notably, Hicks’s briefs do not even mention, let alone rebut, the district court’s clear
statement that it was not considering acquitted conduct.
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