          Case: 18-15164    Date Filed: 11/19/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-15164
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:17-cr-00107-SPC-MRM-1



UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,


                                  versus


OLIVER ROCHER,


                                                         Defendant-Appellant.

                     ________________________

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

                           (November 19, 2019)
              Case: 18-15164     Date Filed: 11/19/2019    Page: 2 of 6


Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

      Oliver Rocher appeals his 190-month sentence for five federal drug

trafficking and firearm offenses. He argues that his sentence is substantively

unreasonable. We disagree, and affirm.

                                          I.

      Rocher entered a guilty plea to a five-count indictment charging him with

distribution of a substance containing heroin; possession with intent to distribute a

substance containing heroin, cocaine base, and cocaine; possession of a firearm by

a convicted felon; and possession of a firearm in furtherance of a drug trafficking

crime. At sentencing, the district court adopted the probation officer’s uncontested

Sentencing Guidelines calculations, which provided a Guidelines range of 110–137

months’ imprisonment on the first four charges, plus a mandatory minimum

consecutive term of 60 months’ imprisonment on the drug-trafficking firearm

offense.

      Rocher requested a downward variance to a total sentence of 120 months’

imprisonment. He submitted a psychologist’s evaluation which stated that he was

competent to stand trial but also opined that he suffered from bipolar disorder,

posttraumatic stress disorder, and multiple substance abuse disorders. He also

pointed out that because—though he claimed not to know it at the time—the heroin


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he sold was mixed with some unknown amount of fentanyl, the Guidelines

required that the entire drug weight for the substance seized from him be assigned

to fentanyl for purposes of calculating his base offense level. This caused an

unwarranted sentencing disparity, Rocher argued, because it gave him a much

higher base offense level than other heroin sellers—the same as a defendant who

had knowingly sold pure fentanyl.

      After hearing argument from the parties and Rocher’s statement in

allocution, the district court discussed the sentencing factors in 18 U.S.C. § 3553

and concluded that a downward variance was not appropriate. The court also

concluded “based upon the seriousness of the offenses before the Court, the

amount of drugs that were located, the type of drugs that were located, the fact that

there was a firearm involved, and your history and characteristics, that a midpoint

of the guideline sentence is appropriate.” The court sentenced Rocher to 130

months’ imprisonment on counts 1, 2, and 4 and 120 months on Count 3, to run

concurrently; 60 months’ imprisonment on Count 5, to run consecutively to all

other counts; and three years’ supervised release.

                                          II.

      We review the reasonableness of a sentence under the abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court abuses

its discretion when it (1) fails to afford consideration to relevant factors that were


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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) (citation

omitted). We will vacate a sentence for substantive unreasonableness 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.”

Id. at 1190 (citation omitted). The party challenging the sentence bears the burden

of showing that it is unreasonable in light of the record and the 18 U.S.C. § 3553(a)

factors. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).

Rocher has not met that burden here.

                                         III.

      On appeal, Rocher argues that his sentence was substantively unreasonable

because, in light of his family history and substance abuse problems and the impact

of the unknown concentration of fentanyl on his Guidelines range, a lower

sentence of 120 months would have been sufficient to comply with the statutory

purposes of sentencing. The district court adequately weighed those

considerations, however, along with other factors under § 3553 such as Rocher’s

(admittedly extensive) criminal history and the serious nature of his crimes, in

determining that a sentence of 190 months was appropriate. Rocher’s argument


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that the district court ignored his mitigation evidence and based its sentencing

decision entirely on his criminal history is directly contradicted by the record. The

court stated that it had considered Rocher’s argument and the materials that he had

submitted, and it acknowledged his statements about the personal difficulties he

was having at the time of the offenses. The court also considered Rocher’s need

for mental health treatment, recommending that he take advantage of mental health

programs available in prison and ordering that he participate in a substance abuse

treatment program while on supervised release.

      We are also not persuaded by Rocher’s sentence-disparity argument. Under

the Guidelines, if a defendant sells a mixture of controlled substances, “the weight

of the entire mixture or substance is assigned to the controlled substance that

results in the greater offense level”—in this case, fentanyl. U.S.S.G. § 2D1.1(c),

App. Note (A) (2016). This provision does not so much create a sentencing

disparity among heroin sellers as it lumps all fentanyl sellers into the same

category regardless of how strong the concentration of fentanyl is in their products.

The fact that the district court did not adopt Rocher’s disagreement with the policy

reflected in this provision so that it could vary downward from his Guidelines

range hardly makes the court’s sentence unreasonable. To the contrary, while no

presumption of reasonableness attaches to a within-Guidelines sentence, we




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ordinarily “expect a sentence within the Guidelines range to be reasonable.”

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

      We also note that the court’s sentences of 130 months’ imprisonment for the

drug trafficking crimes and 60 months’ imprisonment for possessing a firearm in

furtherance of a drug trafficking crime were well below the statutory maximum for

those offenses. See 21 U.S.C. § 841 (b)(1)(C) (20 years); 18 U.S.C. § 924(c)(1)(a)

(life). This fact is another indicator that Rocher’s sentences were reasonable. See

United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).

                                         IV.

      Rocher has not shown that the district court considered any improper or

irrelevant factor in arriving at his sentence, and the court’s midpoint Guidelines

sentence was well within the “range of reasonable sentences from which the

district court may choose.” United States v. Chavez, 584 F.3d 1354, 1365 (11th

Cir. 2009) (citation omitted). We therefore affirm Rocher’s convictions and

sentences.

      AFFIRMED.




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