               Case: 17-11569   Date Filed: 01/11/2018   Page: 1 of 11


                                                              [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-11569
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:16-cr-20611-JAL-1


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

versus

TERRENCE WILLIAMS,

                                              Defendant - Appellant.
                           ________________________

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

                                (January 11, 2018)

Before MARTIN, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

         Terrence Williams pled guilty to one count of possessing a firearm and

ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district
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court determined the appropriate Sentencing Guidelines range to be 46-57 months’

imprisonment, based on a criminal history category of IV and an offense level of

19. Mr. Williams does not dispute these calculations. Rather, Mr. Williams appeals

as substantively unreasonable the district court’s imposition of a 72-month

sentence, after the court concluded that the factors under 18 U.S.C. § 3553(a)

warranted an upward variance from the advisory guidelines range, despite the

parties’ joint recommendation for a 57-month sentence. The district court did not

abuse its discretion, however, in determining Mr. Williams’ sentence, and the

sentence is not substantively unreasonable. We affirm.

                                         I

      We review the substantive reasonableness of a sentence for an abuse of

discretion. See Gall v. United States, 552 U.S. 38, 41 (2007). “The party

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

record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). These factors include, among others, the nature and

circumstances of the offense, and the history and characteristics of the defendant,

see § 3553(a)(1), as well as the need for the sentence to reflect the seriousness of,

and provide just punishment for, the offense, and to promote respect for the law.

See § 3553(a)(2)(A). A sentencing court must restrict the sentence to that which is




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“sufficient, but not greater than necessary,” to comply with the purposes set forth

in § 3553(a)(2). § 3553(a).

      A district court abuses its discretion if 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.” United States v. Osorio-Moreno, 814 F.3d 1282,

1287 (11th Cir. 2016). However, “[t]he weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court, and we

will not substitute our judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). “The fact that the appellate court

might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51. We will

reverse “only if we are left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Rodriguez, 628 F.3d 1258, 1264-65 (11th

Cir. 2010).

                                          II

      On October 15, 2015, Mr. Williams was pulled over by a police officer after

nearly causing an auto accident. Upon asking for Mr. Williams’ license and

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registration, the officer smelled marijuana coming from the vehicle. The officer

advised Mr. Williams of the odor and asked him to exit the vehicle. In response to

the officer’s questions regarding whether there was anything illegal in the vehicle,

Mr. Williams identified a baggie of marijuana in the driver’s side door. The officer

then searched the vehicle, and also discovered a loaded Walther P22 pistol in the

center console between the two front seats, as well as a loaded Sig Sauer 9mm

pistol in the spare-tire compartment of the trunk. The serial numbers of the two

firearms indicated that both had been reported stolen.

      Because Mr. Williams was a convicted felon, he was charged with violating

§ 922(g)(1). Mr. Williams faced a statutory maximum sentence of 120 months. See

18 U.S.C. § 924(a)(2). The government and Mr. Williams jointly recommended a

sentence of 57 months, the top end of the applicable advisory guidelines range. The

district court instead imposed a sentence of 72 months.

                                        III

      “The district court has wide discretion to decide whether the section 3553(a)

factors justify a variance,” Rodriguez, 628 F.3d at 1264, and “[s]entences outside

the guidelines are not presumed to be unreasonable.” United States v. Shaw, 560

F.3d 1230, 1237 (11th Cir. 2009). Here, the district court emphasized three factors

in justifying the upward variance of Mr. Williams’ sentence. We find no

unreasonableness in any of these factors.

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      First, Mr. Williams asserts that the district court improperly considered his

criminal history, particularly his 2005 convictions for second-degree murder and

attempted murder, both of which involved a firearm. Mr. Williams served eleven

years in prison for these convictions, and was released in January 2015 (less than

ten months before his arrest for the current offense). In considering the nature and

circumstances of the offense and the characteristics of the defendant, the district

court stated “what is most concerning to the Court is that he has a second-degree

murder conviction . . . He killed another human being with a firearm. And . . . he

also attempted to kill another person, possessing a firearm.” Mr. Williams claims

that this consideration was improper because that second-degree murder felony

conviction was already taken into account under the advisory Sentencing

Guidelines.

      “[N]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” Amedeo, 487 F.3d at 833 (quoting 18 U.S.C. § 3661). The

Guidelines specifically contemplate sentencing courts considering “prior

sentence(s) of substantially more than one year imposed as a result of independent

crimes committed on different occasions” as justification for departing from a

calculated criminal history category, see U.S.S.G. §4A1.3(a)(2)(B), and the same

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considerations may serve to justify an upward (or downward) variance. It is of no

matter that the prior offense might be considered twice.

      Second, Mr. Williams also argues that the district court relied on improper

factors when it considered the seriousness of the offense. The district court showed

special concern that (1) Mr. Williams had not just one, but two firearms; (2) both

firearms were stolen; and (3) the firearms were loaded. Mr. Williams correctly

notes that the Sentencing Guidelines already take into consideration multiple

firearms, and only provide for an enhancement if three or more are involved. See

U.S.S.G. §2K2.1(b)(1). He also correctly notes that he received a 2-level

enhancement because the guns were stolen, under U.S.S.G. §2K2.1(b)(4)(A). Mr.

Williams argues that because these factors contributed to the advisory Guidelines

range, it was improper for the district court to consider them again in justifying an

upward variance. He also posits that because the Guidelines do not provide for an

enhancement if the firearms are loaded, they do not consider that factor to be

important for sentencing, and the district court should not have considered it either.

      Mr. Williams’ arguments, however, do not accurately reflect the law. “A

district court can rely on factors in imposing a variance that it had already

considered in imposing an enhancement.” Rodriguez, 628 F.3d at 1264. And “there

is no requirement that a district court must impose an enhancement before granting

a variance.” Id. Thus, in Rodriguez we affirmed the district court’s upward

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variance, which it based partially on the factor that there were multiple victims,

even though it had not imposed the 2-level enhancement provided for that factor by

the Guidelines under § 2B1.1(b)(2)(A)(i). See id. And in Amedeo, we found no

error or abuse of discretion where the district court relied on factors to justify its

upward variance which had already served to support an enhancement. See

Amedeo, 487 F.3d at 833-34 (concluding “it was reasonable for the district court to

rely on certain aspects of Amedeo’s conduct . . . that it had already considered in

imposing an enhancement”). Hence, the district court could reasonably impose an

upward variance because the guns were stolen, even though that factor had already

supported a 2-level enhancement. Likewise, even though the Guidelines did not

provide an enhancement for the involvement of two firearms, the district court

could reasonably rely on that factor to impose an upward variance.

      The district court was also well within its discretion to consider the fact that

the guns were loaded, even though that was not an element of the offense and did

not serve as an enhancement under the Guidelines. Mr. Williams had served eleven

years for convictions of second-degree murder and attempted murder, both of

which involved firearms, so the court’s concern over the guns being loaded

reasonably correlated to its duty to ensure that the sentence imposed “reflect the

seriousness of the offense” and “protect the public from further crimes of the

defendant.” See § 3553(a)(2).

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      Third, the district court considered the short time span it took for Mr.

Williams to commit another crime, concerned that “a little over nine months” after

being released from prison for murder and attempted murder involving firearms,

“he is in possession of two stolen firearms, one of which was loaded and in the

console next to him.” In addressing the need to promote respect for the law, the

court stated: “Mr. Williams should have come out of prison and the last thing he

should have done was be anywhere near a firearm, and yet he has two, two stolen

firearms, one of which is loaded.” Respecting the need for the sentence to afford

adequate deterrence to criminal conduct and to protect the public from further

crimes of the defendant, the court continued: “It is disturbing to me that nine

months – a little over nine months later after being released from prison for

second-degree murder and attempted murder, this Defendant is in possession of a

loaded firearm next to him in a car.” The district court was justified in its

apprehension over Mr. Williams’ swift recidivism, and we can ascertain no abuse

of discretion in the district court’s consideration of this factor in imposing an

upward variance. See Shaw, 560 F.3d at 1239-40 (affirming upward variance and

noting that “recidivism was the single most important factor in the court’s decision

to vary upward from a guidelines range of 30 to 37 months to a sentence of 120

months”).




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      In addition to these three factors, Mr. Williams argues that the district court

stated incorrectly, and without evidentiary support, that he was “stoned” when the

police officer pulled him over. He maintains that this single statement contributed

to the district court improperly evaluating the seriousness of the crime. Although

the statement might be a bit overstated, however, the district court could have

inferred that Mr. Williams had been smoking marijuana based on the police

officer’s testimony that he smelled burnt marijuana. We are not persuaded that the

district court relied on an improper factor based on this single statement.

      Finally, Mr. Williams argues generally that the variance is substantively

unreasonable because of the relative increase in the sentence of greater than 25

percent, compared to the recommended sentence of 57 months. We have, however,

affirmed similar and even greater relative increases in sentences based on the

unique characteristics of a crime and defendant and the § 3553(a) factors. See, e.g.,

Rodriguez, 628 F.3d at 1265 (affirming maximum statutory sentence of 12 months

despite advisory guidelines range of 0-6 months); Shaw, 560 F.3d at 1238-41

(affirming maximum statutory sentence of 120 months despite advisory guidelines

range of 30-37 months); Amedeo, 487 F.3d at 832-34 (affirming 120-month

sentence despite advisory guidelines range of 37-46 months); United States v.

Valnor, 451 F.3d 744, 750-52 (11th Cir. 2006) (affirming 28-month sentence

despite advisory guidelines range of 15-21 months).

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      Indeed, in Shaw, which bears notable similarities to the present case (a

defendant with a long and serious criminal history charged as a felon in possession

of a firearm), the defendant was sentenced to a term 48 months greater than was

Mr. Williams, while his advisory guidelines range was 16-20 months less than Mr.

Williams, and he had served far less prior time in prison than had Mr. Williams.

See Shaw, 560 F.3d at 1232-35.

      We also note that Mr. Williams received a sentence far less than the

statutory maximum. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008) (affirming sentence and suggesting that a sentence “well below the

maximum [ ] sentence available” is an indicator of reasonableness); Valnor, 451

F.3d at 751-52 (same). The district court explicitly weighed Mr. Williams’

troubled childhood, his substance addictions, and his recent attempts to reintegrate

himself into society through employment and education, and made it clear that it

would have sentenced him much higher if not for these mitigating circumstances.

      Further, the fact that the government and the defendant jointly recommended

a length of sentence does not diminish the district court’s discretion to impose an

upward variance based on its assessment of the case and the § 3553(a) factors. See,

e.g., Valnor, 451 F.3d at 745-46 (affirming upward variance despite government

and defendant jointly recommending “that Valnor be sentenced at the low end of

the Guidelines range determined by the court”).

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                                         III

      The district court did not abuse its discretion in determining Mr. Williams’

sentence. It properly determined the appropriate guidelines range, and considered

that range. It then considered all of the § 3553(a) factors in light of the particular

facts and circumstances of this case. The district court detailed its reasons for

varying upward from the applicable guidelines range, which reasons are supported

by the record. Accordingly, we affirm Mr. Williams’ sentence.

      AFFIRMED.




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