            Case: 16-14247   Date Filed: 04/18/2017   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-14247
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 8:11-cr-00530-VMC


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus


DANIEL ARROYO,
a.k.a. King Tweet,

                                                          Defendant-Appellant.

                        ________________________

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

                              (April 18, 2017)

Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      This is the second occasion that Daniel Arroyo has appealed his sentence for

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). We affirmed the

enhancement of Arroyo’s sentence under the Armed Career Criminal Act, United

States v. Arroyo, 562 F. App’x 889 (11th Cir. 2015), but after the Supreme Court

vacated our judgment and remanded for reconsideration in the light of Johnson v.

United States, 135 S. Ct. 2551 (2015), we vacated Arroyo’s sentence and

remanded for resentencing. On remand, the district court varied upward from the

guideline range and sentenced Arroyo to the statutory maximum penalty of 120

months of imprisonment. Arroyo argues that his sentence is unreasonable. Because

the district court did not abuse its discretion, we affirm.

                                 I. BACKGROUND

      Arroyo’s criminal history spans almost two decades. On February 23, 1994,

he fired a gun from inside a vehicle that was within 1,000 feet of a person, and four

days later, he forcibly stole a car from a person and went to a McDonald’s

restaurant, where he thrice shot another person at close range. In 2007, while

Arroyo was serving his sentences for discharging a firearm, criminal mischief,

robbery, attempted murder, and aggravated battery, he punched a prison officer in

the face and attempted to wrap the chain of his handcuffs around the officer’s neck.

In 2008, when Arroyo’s charge of battering a law enforcement officer was

pending, he was arrested carrying a concealed weapon. In 2011, shortly after


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Arroyo was released from prison, he was charged for grand theft of a

semiautomatic firearm, carrying a concealed weapon, loitering, and domestic

violence for battering his girlfriend in the face and upper body. Although the state

court dismissed the charges against him, Arroyo’s theft of the semiautomatic

handgun led to his present conviction for being a felon in possession of a firearm.

      Arroyo’s mayhem continued while he was awaiting resentencing. Arroyo’s

presentence investigation report stated that Arroyo “had numerous disciplinary

infractions.” His misdeeds included refusing to obey orders, “breaking a

showerhead in his cell,” “being involved in a large-scale fight in the housing unit

involving weapons and refusing to stop,” threatening “to kill a staff member,

“cursing and threatening [a] staff chaplain,” and cursing at prison staff.

      Arroyo’s revised presentence report provided a total offense level of 23 that,

with a criminal history of IV, resulted in an advisory sentencing range of 70 to 87

months of imprisonment. Arroyo objected to the calculation of his sentence, and

the district court decreased his base offense level to 20, see United States

Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (Nov. 2012), which after adding

two levels for stealing the firearm he possessed, id. § 2K2.1(b)(4)(A), and

subtracting three levels for his acceptance of responsibility, id. § 3E1.1, resulted in

a total offense level of 19. Based on Arroyo’s criminal history, the district court

calculated a revised sentencing range of 46 to 57 months of imprisonment.


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      The district court continued Arroyo’s sentencing hearing for him to gather

evidence to respond to the request of the government (and of Arroyo’s former

girlfriend) to vary upward and sentence Arroyo to the statutory maximum penalty

of 120 months. When the hearing resumed, Arroyo presented testimony from Dr.

Valerie McClain, a licensed psychologist, that Arroyo had a brain impairment due

to oxygen deprivation at birth and a head injury from a car accident when he was

four years old. Dr. McClain opined that Arroyo knew the difference between right

and wrong, but “he was more vulnerable to hooking up with the wrong peer group”

and was not “able to process things through, rationally looking at potential

consequences.” Dr. McClain described Arroyo as being “psychiatrically impaired

with [a] schizoaffective disorder,” which resulted in a failure to respect and trust

people, including authority figures, and required treatment with medication,

“behavior management, [and a] structured type of intervention,” for him to avoid

reoffending. Dr. McClain recommended a “balance between punishment and

rehabilitation” to “stabiliz[e] Arroyo on medication, . . . help[] him to understand

his mental illness . . . and be able to concentrate and focus on positive movements

toward . . . re-entry” and to provide education, job training, and counseling, and

anger management and substance abuse classes. At the end of the hearing, Arroyo

requested a sentence of 84 months of imprisonment.




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      The district court sentenced Arroyo to 120 months of imprisonment. That

decision, the district court explained, “really . . . [required] think[ing]” and was not

made “lightly.” The district court stated that Dr. McClain’s testimony was “very

helpful” and provided “additional insight.” The district court found troubling

Arroyo’s abuse of his girlfriend and his “numerous interactions with the criminal

justice system,” particularly because his “violations [were] of a dangerous and

violent nature.” Arroyo’s “violent criminal history and continued violence while

incarcerated,” the district court explained, “demonstate[d] a need to protect the

community from future crimes from [Arroyo] and justifie[d] a sentence at the

statutory maximum.”

                           II. STANDARD OF REVIEW

      We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). When the sentence

imposed is “outside the Guidelines range, [we] may not apply a presumption of

unreasonableness. [We] may consider the extent of the deviation, but must give

due deference to the district court’s decision that the [statutory sentencing] factors,

on a whole, justify the extent of the variance.” Id.; see United States v. Croteau,

819 F.3d 1293, 1309 (11th Cir.), cert. denied, 137 S. Ct. 254 (2016). That we

“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.


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                                 III. DISCUSSION

      Arroyo argues that his sentence is procedurally and substantively

unreasonable. He contends the district court committed procedural error by failing

to “afford []sufficient weight to [his] intellectual and mental health deficits.”

Arroyo also argues that his sentence is substantively unreasonable because the

district court “afforded undue weight to an alleged domestic violence charge” that

was dismissed and to Arroyo’s criminal history and prison disciplinary record.

These arguments fail.

      No procedural error occurred. Procedural error occurs when the district court

fails to comply with the rules that govern sentencing, “such as [by] failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [statutory sentencing] factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines

range.” Gall, 552 U.S. at 51. But Arroyo does not fault the district court for failing

to consider a sentencing factor or relying on an impermissible factor. Arroyo takes

issue with the weight assigned to particular sentencing factors, which falls under

the ambit of substantive reasonableness. See United States v. Irey, 612 F.3d 1160,

1194 (11th Cir. 2010) (en banc).




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      The district court did not “commit[] a clear error of judgment in weighing”

the sentencing factors. See id. at 1190. To determine an appropriate sentence, the

district court must consider the “nature and circumstances of the offense and the

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

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, protect the public, and provide

the defendant with needed training, medical care, or treatment. 18 U.S.C.

§ 3553(a). The district court took into account Arroyo’s mental impairments and

found “helpful” his expert witness’s recommendation to incarcerate Arroyo and

that he receive medical treatment and mental and vocational counseling. And the

district court reasonably attached great weight to Arroyo’s violent criminal history,

which “fits squarely into one of the § 3553(a) factors, the history and

characteristics of the offender,” United States v. Williams, 526 F.3d 1312, 1324

(11th Cir. 2008), and the need to protect the public from future similar crimes.

Gall, 552 U.S. at 56–57 (holding that a district court did not abuse its discretion

because it “attached great weight” to one factor). “[T]he weight accorded to any of

the § 3553(a) factors is committed to the sound discretion of the district court,”

United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014), which did not

assign undue weight to any particular sentencing factor.




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      Arroyo argues that a sentence 63 months above the high end of his advisory

sentencing range of 46 to 57 months is unreasonable, but we have affirmed equally

large upward variances based on a defendant’s violent criminal history. In United

States v. Shaw, 560 F.3d 1230 (11th Cir. 2009), we upheld the decision to vary

upward from the defendant’s sentencing range of 30 to 37 months to his maximum

statutory sentence of 120 months because his 26 prior offenses revealed an

“unwavering desire to commit crimes.” Id. at 1241. And in United States v.

Osorio-Moreno, 814 F.3d 1282 (11th Cir. 2016), we upheld an upward variance

from a sentencing range of 51 to 63 months to the defendant’s maximum penalty

of 120 months when the defendant had “engaged in a life of crime, with a

staggering 20 convictions,” and he had committed “repeated acts of violence

against women and law-enforcement officers.” Id. at 1288.

      Arroyo’s sentence of 120 months is reasonable. He amassed convictions for

robbery, attempted first degree murder, aggravated battery, and the possession and

use of firearms, and he unleashed his brutality equally on companions, law

enforcement, and strangers. Arroyo’s lengthy and serious criminal history reveals a

penchant for violence. And his conduct reflects an attitude, in the words of the

district court, that he “[doesn’t] have to follow the rules.” The district court

reasonably determined that the statutory purposes of sentencing would be best

served by imposing the maximum penalty for his crime. Even Arroyo, who


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requested a sentence “of say seven years,” admitted the propriety of imposing a

sentence above the recommended sentencing range. The district court did not

abuse its discretion.

                                  IV. CONCLUSION

      We AFFIRM Arroyo’s sentence.




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