           Case: 13-11584   Date Filed: 05/13/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11584
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:12-cr-00347-IPJ-TMP-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                                 versus

COREY L. HOOPER,

                                                     Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (May 13, 2014)

Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       The government appeals Corey L. Hooper’s sentence after he was convicted

of deprivation of rights under color of law, pursuant to 18 U.S.C. § 242. The

conviction stems from an incident in 2007 in which Hooper, then a Birmingham,

Alabama, police officer, struck a handcuffed and non-resisting arrestee multiple

times in the face. The guideline range called for 70 to 87 months’ imprisonment,

but the district court varied downward to issue a sentence of 60 months’ probation.

       On appeal, the government argues that Hooper’s probationary sentence was

substantively unreasonable because it did not satisfy the need for general

deterrence. While the district court concluded that Hooper would be specifically

deterred from committing future crimes, the sentencing factors listed in 18 U.S.C.

§ 3553(a) also required the court to examine whether Hooper’s sentence would

deter others. However, the court concluded it was “not going to worry about what

other police officers do.” The government also argues that the non-custodial

sentence fails to satisfy the § 3553(a)(2) purposes of reflecting the seriousness of

the crime, promoting respect for the law, and providing just punishment. Finally, it

asserts that the court failed to offer a sufficiently compelling justification for what

amounts to a major departure from 70 months’ incarceration to no prison time at

all.

       We review the reasonableness of a sentence using a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41 128 S.Ct. 586, 591, 169

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L.Ed.2d 445 (2007). Under this standard, the district court does not need to

impose the same sentence we would have given, but need only impose a sentence

that is within the range of reasonableness. United States v. Irey, 612 F.3d 1160,

1190-91 (11th Cir. 2010) (en banc). The party challenging the sentence has the

burden of demonstrating that the sentence is unreasonable in light of the record and

the factors outlined in 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005).

      In reviewing for substantive reasonableness, we examine the totality of the

circumstances and ask “whether the statutory factors in § 3553(a) support the

sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008). The § 3553(a) factors are: the nature and circumstances of the offense and

history and characteristics of the defendant, the need for the sentence to reflect the

seriousness of the offense, the need to promote respect for the law and afford

adequate deterrence, the need to protect the public, the need to provide the

defendant with training, education and medical care, the kinds of sentences

available, the Sentencing Guidelines range for the offense, the Sentencing

Commission policy statements, the need to avoid unwarranted sentencing

disparities, and the need to provide victims with restitution. 18 U.S.C.

§ 3553(a)(1)-(7). To vacate a sentence, we must firmly believe that the district

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

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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).

      “The weight to be accorded any given § 3553(a) factor is a matter committed

to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007) (quotation omitted). However, this discretion is not

unfettered. Irey, 612 F.3d at 1191. A sentence may be substantively unreasonable

when a court unjustifiably relies on any single § 3553(a) factor, selects the

sentence arbitrarily, bases the sentence on impermissible factors, or fails to

consider pertinent § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1191-

92 (11th Cir. 2008).

      Section § 3553(a)(2)(B) provides that the district court is required to

consider the need for a defendant’s sentence “to afford adequate deterrence to

criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). Promoting deterrence is distinct

from the goal of preventing recidivism, which is referenced in § 3553(a)(2)(C) as

“protect[ing] the public from further crimes of the defendant.” See United States v.

Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (holding that the sentencing court’s

conclusion that “this defendant has been effectively deterred” referred to

§ 3553(a)(2)(C), rather than the promotion of general deterrence). Moreover,

general deterrence is “one of the key purposes of sentencing.” Pugh, 515 F.3d at

1194. In our recently published decision in United States v. McQueen, 727 F.3d

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1144 (11th Cir. 2013), we held that general deterrence is especially compelling in

the context of officials abusing their power. McQueen, F.3d at 1157-58.

      Section § 3553(a)(2)(A) provides that the district court is required to

consider 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.” 18

U.S.C. § 3553(a)(2)(A). Even if the court stated that it considered

§ 3553(a)(2)(A), its failure to explain how the offense’s severity factored into its

decision to issue a lower sentence can result in an unreasonable sentence. See

Pugh, 515 F.3d at 1198 (holding that although the district court recognized that

child pornography is “a serious crime,” the sentence failed to reflect that severity

or to promote respect for the law).

      If the district court determines that the § 3553(a) factors justify a sentence

outside the guidelines, we must give due deference to that court’s decision. United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). However, we also must

consider the extent of the deviation and “ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct.

at 597. A major variance in sentencing requires a more significant justification

than a minor one. Id.; see also Irey, 612 F.3d at 1196 (holding that a downward

variance of 42% is considered major). A major variance cannot be sufficiently

justified solely on the grounds of the defendant’s characteristics and motive. See

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Pugh, 515 F.3d at 1182, 1187, 1200-01 (holding that a 97-month downward

variance for a child-pornography conviction was not sufficiently justified by the

defendant’s lack of a criminal history and the low risk that he would re-offend).

      Here, the district court abused its discretion when it issued Hooper a 60-

month probationary sentence. First, the court expressly declined to consider the

need for Hooper’s sentence to adequately deter other police officers from using

excessive force. 18 U.S.C. § 3553(a)(2)(B). By ignoring a pertinent § 3553(a)

factor that was one of the “key purposes” of sentencing, the court issued a

substantively unreasonable sentence. McQueen, 727 F.3d at 1157-58; see also

Pugh, 515 F.3d at 1191-92, 1194. Second, the court did not give adequate

consideration to the seriousness of Hooper’s conviction under 18 U.S.C. § 242,

particularly in light of Hooper’s abuse of police power and the vulnerability of a

restrained arrestee. McQueen, 727 F.3d at 1157-58; Pugh, 515 F.3d at 1198.

Third, the court failed to cite a sufficiently significant justification for granting a

100 %, 70-month downward variance. Massey, 727 F.3d at 1159; Irey, 612 F.3d at

1196. While sentencing courts should look to a defendant’s history and

characteristics, Hooper’s clean criminal history and family ties cannot sufficiently

justify such a steep variance under the facts of this case. See 18 U.S.C.

§ 3553(a)(1); Pugh, 515 F.3d at 1200-01.



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      For the reasons above, Hooper’s 60-month probationary sentence is

substantively unreasonable under the totality of the circumstances. Gonzalez, 550

F.3d at 1324. We therefore vacate and remand for further review and resentencing.

      VACATED and REMANDED.




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