           Case: 16-12155   Date Filed: 04/28/2017   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12155
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:15-cr-14061-RLR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TANTALUS PRENTICE TOUSSAINT,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 28, 2017)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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          Defendant Tantalus Toussaint appeals his 117-month sentence, imposed

after pleading guilty to carrying or possessing a firearm during and in relation to a

drug trafficking crime and being a felon in possession of a firearm and

ammunition. On appeal, Defendant challenges the substantive reasonableness of

his sentence. After careful review, we affirm.

I.        BACKGROUND

          According to the Presentence Investigation Report (“PSR”), an officer with

the Fort Pierce Police Department conducted a traffic stop of a vehicle being

driven by Defendant. Upon approaching the vehicle, the officer noticed the smell

of marijuana coming from the vehicle and later discovered that Defendant did not

have a valid driver’s license. Following Defendant’s arrest, a search of his person

revealed an individually packaged bag of marijuana and a large amount of cash. A

subsequent search of his vehicle revealed, among other things, several individually

packaged bags of marijuana, a larger bag of marijuana, a scale, and a 9-mm Taurus

pistol.

          Defendant later pled guilty to carrying or possessing a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)




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(Count 3), and being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (Count 4).1

       The PSR stated that Defendant faced a mandatory minimum of 60 months’

imprisonment as to the § 924(c) conviction (Count 3), to run consecutive to any

other sentence imposed. As to the § 922(g) conviction (Count 4), the PSR

assigned Defendant a base offense level of 24, pursuant to U.S.S.G. § 2K2.1(a)(2)

because Defendant’s possession of a firearm was committed after sustaining at

least two felony convictions for either a crime of violence or a controlled substance

offense. Defendant received a two-level enhancement under § 2K2.1(b)(4)

because the firearm was stolen. With a three-level reduction for acceptance of

responsibility, Defendant’s total offense level was 23. Based on a total offense

level of 23 and a criminal history category of IV, Defendant’s guideline range on

Count 4 was 70 to 87 months’ imprisonment. Defendant did not file any

objections.

       Prior to the sentencing hearing, Defendant moved for a downward variance.

He argued that a downward variance was necessary to avoid unwarranted

sentencing disparities among defendants in other circuits where the residual clause

in U.S.S.G. § 4B1.2(a)(2)’s crime-of-violence definition had been invalidated. He


1
  Defendant was originally charged with two counts of possession with intent to distribute
(Counts 1 and 2), but the Government agreed to dismiss those charges based on Defendant’s
guilty plea to Counts 3 and 4.
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further argued that the application of § 4B1.2(a)(2)’s residual clause would create

unwarranted sentencing disparities with defendants sentenced after August 1,

2016—the effective date of the proposed Guidelines’ amendment deleting the

residual clause from § 4B1.2(a)(2)’s definition of crime of violence.

         At the sentencing hearing, Defendant reiterated his request for a downward

variance and requested a postponement of sentencing until after August 1, 2016.

The district court denied the request to postpone sentencing, but stated that it

would consider Defendant’s motion for a downward variance. Defendant

explained that a downward variance was appropriate to avoid unwarranted

sentencing disparities among defendants in other circuits where the Supreme

Court’s decision in Johnson2 has been applied to the Guidelines. Asking the court

to apply the Guidelines that would be effective on August 1, 2016, Defendant

requested a total sentence of 97 months’ imprisonment, consisting of the

mandatory 60-month sentence for the possession of a firearm during and in relation

to a drug trafficking crime charge and 37 months’ imprisonment for the felon-in-

possession charge.

         The Government acknowledged that the district court had authority to vary

downward based on the proposed amendment to the Guidelines. Both parties

agreed that if the proposed changes to the Guidelines were effective at the date of


2
    Johnson v. United States, 135 S. Ct. 2551 (2015).
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sentencing, Defendant’s guideline range would decrease from 70 to 87 months’

imprisonment to 46 to 57 months’ imprisonment.

       After considering the 18 U.S.C. § 3553(a) factors, the district court

sentenced Defendant to a total of 117 months’ imprisonment, consisting of the

mandatory 60-month term as to Count 3, followed by 57 months’ imprisonment as

to Count 4. The district explained that it had partially granted Defendant’s request

for a downward variance based on the anticipated changes to the Guidelines which

would have lowered Defendant’s guideline range to 46 to 57 months’

imprisonment. Defendant objected to the substantive reasonableness of the

sentence. This appeal followed.

II.    DISCUSSION

       Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir. 2014). We first look to whether the district court committed any procedural

error, and then we examine whether the sentence is substantively reasonable in

light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. 3 Id.


3
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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“A district court abuses its discretion when 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. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quotations omitted). The party challenging the sentence

bears the burden of showing that it is unreasonable. United States v. Pugh, 515

F.3d 1179, 1189 (11th Cir. 2008).

       Defendant has not shown that his sentence is substantively unreasonable. In

calculating Defendant’s 117-month sentence, the district court imposed a

mandatory 60-month sentence on Count 3 and a 57-month sentence on Count 4—

which reflected a 13-month downward variance from the guideline range of 70 to

87 months’ imprisonment. 4 Because we generally expect a sentence imposed

within the guideline range to be reasonable, one would not typically expect a

sentence below that range to constitute an unreasonably high sentence. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining that, although we do

not presume that a sentence within the guideline range is reasonable, we typically

4
  The parties incorrectly refer to the district court’s imposition of the 57-month sentence on
Count 4 as a within-guidelines sentence. However, the guideline range applicable at the time of
Defendant’s sentencing in April 2016 was 70 to 87 months’ imprisonment. See United States v.
Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011) (explaining that when we review the district
court’s application of the Sentencing Guidelines, we apply the version of the Guidelines
applicable at the time of the defendant’s sentence). Accordingly, the 57-month sentence
imposed by the district court constituted a 13-month downward variance from the low end of the
applicable guideline range. But regardless of whether the 57-month sentence is characterized as
a variance or a within-guidelines sentence, we conclude that it is reasonable.
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expect it to be reasonable). Further, Defendant’s sentences on Counts 3 and 4 were

well below the statutory maximum sentences for his offenses (life imprisonment on

Count 3 and ten years on Count 4). See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (suggesting that a sentence well below the statutory

maximum is an indicator of reasonableness).

      Although Defendant argues that the district court placed undue weight on his

prior convictions, the record shows that in addition to considering Defendant’s

extensive criminal history, the district court also emphasized the need for

deterrence and the need to protect the public from the future crimes of Defendant.

That the district court may have placed more weight on Defendant’s criminal

history was entirely within its discretion. See United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007) (“The weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” (quotations

omitted)).

      Defendant also argues that the district court failed to consider his mitigating

evidence. However, the district court listened to Defendant’s arguments at

sentencing that both of his convictions stemmed from possession of the same

firearm and that there was no evidence showing that the firearm was stolen.

Defendant therefore has not persuaded us that the district court ignored his

mitigating circumstances. See United States v. Amedeo, 487 F.3d 823, 833 (11th


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Cir. 2007) (stating that, although the district court did not specifically mention

mitigating evidence, “we cannot say that the court’s failure to discuss this

‘mitigating’ evidence means that the court erroneously ‘ignored’ or failed to

consider this evidence in determining [the defendant]’s sentence”).

      In short, Defendant has not met his burden of showing 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.” Irey, 612 F.3d at 1190 (quotation omitted).

      For the foregoing reasons, Defendant’s sentence is AFFIRMED.




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