           Case: 19-10541   Date Filed: 02/18/2020   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10541
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:18-cr-00282-ECM-GMB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TOMMY LLOYD KEENE,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 18, 2020)

Before NEWSOM, HULL, and MARCUS, Circuit Judges.

PER CURIAM:
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      In June 2018, a federal grand jury indicted Tommy Keene for one count of

bank robbery, in violation of 18 U.S.C. § 2113(a). Keene eventually pleaded

guilty and was sentenced to 164-months imprisonment. Keene now appeals his

sentence, which he argues is substantively unreasonable. The Government has

moved to dismiss Keene’s appeal pursuant to an appeal waiver in his plea

agreement. We needn’t determine the enforceability of Keene’s appeal waiver

because we conclude that, even if Keene were entitled to appeal the substantive

reasonableness of his sentence, his appeal would fail on the merits. We therefore

affirm.

      Keene’s plea agreement contained an appeal-waiver provision, which stated

that (notwithstanding a few inapplicable exceptions) Keene waived his rights—

conferred by 18 U.S.C. § 3742 and 28 U.S.C. § 2255—to appeal and to collaterally

attack his conviction or sentence. After Keene filed this appeal in February 2019,

the government filed a motion to dismiss, alleging that the appeal was precluded

by the appeal-waiver provision in Keene’s plea agreement. Keene responded that

the appeal waiver provision is unenforceable because he did not enter into it

knowingly and voluntarily.

      We find it unnecessary to address the enforceability of Keene’s appeal

waiver, because we hold that even if Keene’s appeal waiver were deemed




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unenforceable and Keene’s appeal were permitted to proceed, it would fail on the

merits.

      Keene argues that the district court’s 164-month sentence is substantively

unreasonable because it “overlook[ed] the important factors of [Keene’s]

horrendous upbringing, his mental health issues[,] and [his] traumatic brain

injury,” which “warranted a downward variance” from the Sentencing Guidelines.

We review the substantive reasonableness of a sentence under a deferential abuse-

of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We

determine whether the sentence is substantively reasonable under the totality of the

circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The

party challenging the sentence has the burden of demonstrating that it is

unreasonable in light of the record and the sentencing factors. Id.

      A 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 offense, to promote respect for the law,

and to provide just punishment for the offense,” as well as deter criminal conduct,

and protect the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). In imposing its sentence, the district court must also consider “the

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

defendant,” “the kinds of sentences available,” the applicable guideline range, and


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“the need to avoid unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar conduct.” Id. § 3553(a)(1),

(3)–(4), (6).

       “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). However, 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) (quotation omitted).

       After careful review of the record, we hold that the district court did not

abuse its discretion in this case. Keene’s sentence—164 months’ imprisonment—

was within the 151-to-188-month range calculated pursuant to the Sentencing

Guidelines. And although we do not automatically presume that a sentence within

the Guidelines’ range is reasonable, we ordinarily expect such a sentence to be

reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Keene’s

sentence was also well below the statutory maximum term of imprisonment of 240

months, which is another indicator of reasonableness. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).




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      The record further shows that the district court explained the 18 U.S.C.

§ 3553(a) factors that it considered and gave a detailed explanation for the sentence

it imposed. The district court acknowledged that Keene has been on a “very

difficult road” but stated that his difficulties “do[n’t] excuse what [he] ha[s] done.”

In imposing a 164-month sentence and rejecting Keene’s substantive-

unreasonableness objection to it, the district court emphasized the “danger” that

Keene poses “to [him]self and to society,” the “continuous nature” of his criminal

behavior, and the “seriousness” of his offense.

      The district court’s sentence does not leave us “with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors.” United States v. Clay, 483 F.3d 739, 747 (11th Cir. 2007)

(quotation omitted). Accordingly, Keene’s sentence was substantively reasonable,

and we affirm.

      AFFIRMED.




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