           Case: 18-12852   Date Filed: 01/24/2019   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12852
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:18-cr-14005-RLR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DAMONTA VONTARUS ONEAL,

                                                         Defendant-Appellant.

                      ________________________

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

                            (January 24, 2019)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Damonta Vontarus Oneal appeals his sentence of 77 months of imprisonment,

at the low end of the guideline range, imposed after he pled guilty to one count of

possession of a firearm and ammunition after a felony conviction, in violation of 18

U.S.C. § 922(g)(1). In calculating Oneal’s guideline range at sentencing, the district

court found that he qualified for the highest criminal-history category of VI based

on 14 criminal-history points—all for offenses committed when he was a juvenile.

Oneal now argues that the court abused its discretion by failing to vary downward

from the guideline range to account for the age and minor nature of several of these

offenses, and that the resulting sentence is substantively unreasonable. After careful

review, we affirm Oneal’s sentence.

                                          I.

      According to the factual proffer submitted in connection with Oneal’s guilty

plea, on February 1, 2018, law-enforcement officers initiated a traffic stop of a car

for failure to maintain a single lane. When the car came to a stop, Oneal jumped out

of a passenger seat and started running with a bag in hand. Officers pursued Oneal

and observed him dropping the bag into the bed of a random pickup truck. Officers

recovered the bag and then apprehended Oneal. Inside the bag was a Glock .40-

caliber pistol with an extended magazine. The gun had been reported as stolen.

      In preparation for sentencing, a probation officer prepared Oneal’s

presentence investigation report (“PSR”). The PSR reported a total of 14 criminal-


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history points, which placed Oneal, who was then 20 years old, into the highest

criminal-history category of VI. Combined with a total offense level of 21, this

established a recommended guideline imprisonment range of 77 to 96 months of

imprisonment. The statutory maximum sentence was 10 years in prison.

      Oneal’s 14 criminal-history points were based on offenses he committed as a

juvenile, though one offense—the final one listed below—resulted in a conviction

in adult court. Specifically, Oneal received two points each for the following

criminal adjudications: (1) battery (age 13); (2) three counts of robbery with a deadly

weapon while wearing a mask (age 14); (3) grand theft of a firearm and possession

of a firearm after being found delinquent (age 14); (4) resisting an officer and

possession of a firearm after being found delinquent (age 15): (5) felony battery and

burglary of an unoccupied conveyance (age 16); (6) resisting an officer without

violence (age 17); and (7) openly carrying a weapon and possession of a firearm by

a convicted felon juvenile (age 17).

      Before sentencing, Oneal filed a motion for a downward variance from the

guideline range, arguing that his criminal-history category significantly

overrepresented the seriousness of his criminal history. First, he contended that

criminal-history category VI overstated the severity of his criminal history because

many of his juvenile offenses were due to “typical teenage immaturity” and the fact

that he “grew up in an extremely rough area with very little family or community


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support or guidance.” Second, he argued that the way his juvenile adjudications

were handled—including long periods of supervision—led to “excessive criminal

history points compared to similar offenses committed by adults.” He cited as

examples his first battery charge at age 13 and a charge for resisting an arrest without

violence at age 17, which, in his view, would not have resulted in two criminal-

history points each for an adult.

      At sentencing, the district court adopted the PSR’s guideline calculations and

then heard argument from the parties about an appropriate sentence. Oneal reargued

the points from his motion and requested a downward variance to 60 months of

imprisonment. The government proposed a sentence at the high end of the guideline

range (96 months), arguing that Oneal’s criminal history was not overstated. After

hearing from Oneal personally and his mother, the district court sentenced Oneal to

77 months of imprisonment.

      In explaining its sentence, the district court stated that it had considered the

parties’ statements, the PSR, and the § 3553(a) factors. The court noted the support

of Oneal’s family and friends at the hearing, and it acknowledged Oneal’s youth and

the difficult circumstances of his upbringing, including the loss of his father and the

bad influences in his community. The court stated that Oneal “should not have to

live with the stigma” of what he did when he was 13, 14, or 15, and it commended

him for earning his GED. But the court also explained that the offense was serious


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and that the sentence needed to promote respect for the law, to protect the public,

and to deter Oneal and others. Balancing all of these factors, the court concluded

that a sentence of 77 months of imprisonment was consistent with the § 3553(a)

factors and the facts before it. Oneal now appeals.

                                         II.

      In reviewing a sentence, we make sure that it is both free from significant

procedural error and substantively reasonable. Gall v. United States, 552 U.S. 38,

51 (2007).    Significant procedural errors include improperly calculating the

guideline range and failing to consider the sentencing factors under 18 U.S.C.

§ 3553(a). Id. If the sentence is procedurally sound, we then consider whether it is

substantively reasonable under the totality of the circumstances. Id.

      Oneal does not contend that the district court committed any procedural error.

He agrees that the court’s guidelines calculation was correct, and so do we. The

court considered the § 3553(a) factors and thoroughly explained its reasons for

imposing a sentence at the low end of the guideline range of 77 to 96 months.

Oneal’s only contention is that the sentence of 77 months of imprisonment is

substantively unreasonable. He maintains that the court failed to give sufficient

“consideration and weight to the age and minor nature of several criminal

convictions that significantly increased [his] criminal history category.” He says




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that a criminal-history category of IV or V more accurately reflected his criminal

history.

      We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. United States v. Nagel, 835 F.3d 1371, 1376 (11th Cir.

2016). 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 crime, promote respect for the law, provide

just punishment, deter criminal conduct, and protect the public from the defendant’s

future criminal conduct. 18 U.S.C. § 3553(a)(2)(A)–(C); see also United States v.

Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc). The court must also consider

“the nature and circumstances of the offense and the history and characteristics of

the defendant,” among other factors. 18 U.S.C. § 3553(a)(1). The weight to be

assigned to these factors—whether great or slight—is committed to the sound

discretion of the district court, and “we will not reweigh the factors.” United States

v. Johnson, 803 F.3d 610, 620 (11th Cir. 2015).

      “The party challenging a sentence has the burden of showing that the sentence

is unreasonable in light of the entire record, the § 3553(a) factors, and the substantial

deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d

1249, 1256 (11th Cir. 2015). We may not “set aside a sentence merely because we

would have decided that another one is more appropriate.” See Irey, 612 F.3d at


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1191. Rather, “[w]e may set aside a sentence only if we determine, after giving a

full measure of deference to the sentencing judge, that the sentence imposed truly is

unreasonable.” Id. In other words, we will not vacate a sentence unless the party

challenging it convinces us that it lies outside the range of reasonable sentences

dictated by the facts of the case. Id. at 1190.

      Here, Oneal’s sentence is substantively reasonable. In imposing the 77-month

sentence, the district court expressly considered the PSR and Oneal’s arguments in

mitigation. The court cited as mitigating factors Oneal’s youth and the difficult

circumstances of his upbringing, and it stated that he “should not have to live with

the stigma” of what he did when he was 13, 14, or 15. But the court balanced these

factors against the need for the sentence to reflect the seriousness of the crime and

to promote the goals of deterrence, respect for the law, and protection of the public.

The weight to be assigned these factors was committed to the district court’s sound

discretion, see Johnson, 803 F.3d at 620, and we discern no abuse of that discretion

in the court’s determination that a sentence 77 months was “sufficient, but not

greater than necessary, to comply with the purposes” listed in § 3553(a)(2).

      The district court considered all relevant factors, did not give weight to any

irrelevant factors, and did not commit a clear error when evaluating the § 3553(a)

factors. Notwithstanding Oneal’s young age, his criminal record indicates extensive

and repeated contact with law enforcement, a number of offenses involving the use


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of firearms, and a refusal to alter his criminal behavior despite being offered multiple

opportunities for change as a juvenile. These facts sufficiently support the district

court’s judgment that a sentence at the low end of the guideline range, while longer

than the sentence Oneal requested, was necessary to promote respect for the law, to

protect the public, and to promote deterrence. The sentence was also within the

guideline range and well below the statutory maximum of 120 months, two factors

which further support the reasonableness of the sentence. See United States v. Nagel,

835 F.3d 1371, 1377 (11th Cir. 2016). Given these factors and the substantial

deference afforded sentencing decisions, Oneal has not shown that his 77-month

sentence is substantively unreasonable in light of the § 3553(a) and the record as a

whole. We therefore affirm Oneal’s sentence.

      AFFIRMED.




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