                Case: 13-11030        Date Filed: 12/31/2013      Page: 1 of 7


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-11030
                               ________________________

                      D.C. Docket No. 6:12-cr-00012-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                                versus

ANTWOINE MAURICE ALLEN,

                                                                   Defendant-Appellant.

                               ________________________

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

                                    (December 31, 2013)

Before CARNES, Chief Judge, HULL and GARZA, * Circuit Judges.

PER CURIAM:


       *
         Honorable Emilio M. Garza, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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      Antwoine Maurice Allen appeals his 120-month sentence, imposed after he

pleaded guilty to distribution of crack cocaine in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C). Allen contends that the district court’s 33-month upward

variance from his guidelines range, which was 70 to 87 months, is substantively

unreasonable. The statutory maximum sentence for Allen’s offense of conviction

is 240 months. See id. § 841(b)(1)(C).

      Allen argues that the district court’s consideration of his prior robbery

conviction improperly focused on the violent conduct of two other men who, while

Allen served as a lookout, robbed and attempted to rape a woman who was eight

months pregnant. He also argues that the district court improperly based the

upward variance on its disapproval of his tattoos and his sketchy record of

employment.

      We review a sentencing decision for reasonableness, applying a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586,

591 (2007). That standard allows a range of choice for the district court, so long as

its choice does not constitute a clear error of judgment. United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc). As we have explained, “the relevant

question when reviewing for abuse of discretion is not whether we would have

come to the same decision if deciding the issue in the first instance. The relevant

inquiry, rather, is whether the district court’s decision was tenable, or, we might


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say, ‘in the ballpark’ of permissible outcomes.” Id. (alterations and quotation

marks omitted). While a district court’s justification for varying from the

guidelines range must be sufficiently compelling to support the degree of the

variance, id. at 1186, there is no presumption that a sentence outside of the

guidelines range is unreasonable, and we must give the district court’s decision to

impose it due deference. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Allen, as the

party challenging the sentence, bears the burden of showing that it is unreasonable

in light of the record and the 18 U.S.C. § 3553(a) factors. 1 See United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

       The district court provided several justifications for exercising its discretion

to vary above the guidelines range in sentencing Allen. It focused primarily on his

criminal history record and his history of violating the terms of probation (once)

and parole (twice) that were imposed after an earlier conviction. Referring to the

presentence investigation report, the facts of which were undisputed, the court




       1
         The § 3553(a) factors include: the nature and circumstances of the offense and the
history and characteristics of the defendant; the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the offense; the
need for deterrence; the need to protect the public; the need to provide the defendant with
necessary educational or vocational training or medical care; the kinds of sentences available; the
sentencing guidelines range; pertinent policy statements of the Sentencing Commission; the need
to avoid unwanted sentencing disparities; and the need to provide restitution to victims. 18
U.S.C. § 3553(a).


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observed that Allen’s “criminal history is most egregious.” 2 The court pointed out

that if Allen had been convicted of count 1 as charged in the indictment, his

mandatory minimum sentence would have been ten years imprisonment with a

maximum sentence of life. 3 The court noted that Allen had been involved in prior

crimes of violence, that his parole had been revoked “on numerous occasions,” and

that “each time it seemed as if any period of supervised release or probation

resulted in [Allen’s] having violated that” accompanied by a judicial determination

that he was in violation. Referring to Allen’s plea agreement, the court concluded,

“He’s lucky to get the deal that he’s got.”

       In considering Allen’s criminal history, the district court discussed Allen’s

prior conviction for robbery. The facts of it were that Allen, along with Alvin

Adkins and John Ferguson, followed a woman as she was driving to her

apartment. 4 After she arrived and was walking toward the apartment, Adkins and

Ferguson approached her while Allen waited in the car for them to do it. Adkins

held her at gunpoint and pushed her to the ground. Her husband came out of the

apartment, and Adkins forced her and her husband into their apartment at gunpoint.

Adkins attempted to rape the woman, who was eight months pregnant, and then


       2
          The parties did not object to the presentence investigation report, and the district court
adopted the report’s factual statements as its findings of fact.
        3
          Count 1 charged Allen and two other men with conspiracy to possess with intent to
distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846. That count and three others were dismissed as part of Allen’s written plea agreement.
        4
          Allen did not object to the facts of the robbery that were recounted in the PSR.
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forced her to perform oral sex on him before leaving the apartment and stealing the

woman’s car. Allen followed, driving the vehicle that had been used to get the

assailants to the scene of the crime.

      Contrary to Allen’s argument, the sentence hearing transcript clearly shows

that the district court recognized it was Adkins and Ferguson, and not Allen

himself, who actually committed the acts of violence. The court did not abuse its

discretion in considering the nature of the crime and Allen’s role in it.

      As for Allen’s tattoos, the district court noted some of the things that Allen

had chosen to have inked on his body: “‘Death.’ Skulls with ‘B’ and ‘4’ in the

eyes, ‘dishonor’ and ‘bonded by loyalty,’ with a gun on his left arm, ‘baby boy’ on

his right wrist and ‘sex, money, murda,’ and a depiction of a gun on his right

biceps.”5 The court referred to the tattoos as a “badge of honor” for a person who

is unlikely to be deterred from crime except by imprisonment. In the same

discussion, the court also commented that Allen was “a dangerous person,” who

had “been before the criminal justice system” but had “never been dealt with

adequately.”




      5
          The PSR described all of Allen’s tattoos as follows:

      “Death,” skulls with “B” and “4” in the eyes, “Dishonor,” and “Bonded by Loyalty” with
      a gun on his left arm; “Renee” and “Myriah” in a scroll on his right forearm; “Tyiamna”
      and “Baby Boy” on his right wrist; and “Sex Money Murda” and a depiction of a gun on
      his right biceps.”
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      Defense counsel asserted to the district court, without any evidence to

support his assertion, that Allen had gotten “most” of his tattoos –– he did not

specify which ones –– when he was seventeen years old, and he argued that “a lot

of 17-year-olds do that.” In his brief to this Court, Allen asserts without citation to

any authority that the sentencing guidelines “do not allow for an upward variance

over tattoos.” If the district court had based the upward variance solely on Allen’s

tattoos, he would have a better argument. The record reveals, however, that the

district court considered a lot more than Allen’s tattoos. In fact, the court’s

primary focus was on Allen’s criminal history and his history of repeatedly

violating terms of release from custody. If consideration of the nature or content of

some of the tattoos did factor into the district court’s sentencing determination, it

was as part of the history and characteristics of the defendant. See 18 U.S.C. §

3553(a)(1); cf. United States v. Hernandez-Villanueva, 473 F.3d 118, 121, 123 (4th

Cir. 2007) (upholding a sentence as substantively reasonable when the district

court considered, among other things, the defendant’s tattoos, which evidenced

gang affiliation). Two tattoos of guns, one of which was accompanied with the

words “sex, money, murda,” suggested to the district court that Allen might return

to his criminal past, which included a robbery in which one of the victims was

sexually assaulted.




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       The district court also considered Allen’s sporadic work history. Like the

tattoos, his employment record is part of his history and characteristics, which the

district court properly factored into its § 3553(a) analysis. See 18 U.S.C.

§ 3553(a)(1), (a)(2)(D); United States v. Coleman, 635 F.3d 380, 383 (8th Cir.

2011) (upholding a sentence as substantively reasonable when the district court

considered, among other things, the defendant’s “complete lack of gainful

employment”). Also like the tattoos, Allen’s work history was not the only thing

that the district court considered when making its sentencing determination.

       When sentencing Allen, the district court stated that it had considered the §

3553(a) factors and reiterated that its justifications for an upward variance were “a

horrendous criminal record, numerous revocations for failure to live within the

terms of probation and the state [criminal] record, [and] a very checkered history

about any employment.” The court then varied upward from the top of the

guidelines range by 33 months, sentencing Allen to 120 months imprisonment,

which is only half of the 240-month statutory maximum sentence it could have

imposed. The district court’s justifications were sufficiently compelling to support

the extent of the upward variance. There was no abuse of discretion.

       AFFIRMED. 6



       6
       This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).
                                             7
