              Case: 18-11568     Date Filed: 02/05/2019   Page: 1 of 7


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-11568
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:17-cr-20608-FAM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,

                                          versus

ANTWAN TAMEL HANNA,

                                                             Defendant - Appellant.

                           ________________________

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

                                 (February 5, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:

      Antwan Hanna appeals his 87-month sentence for conspiracy to possess

cocaine with the intent to distribute and possession of cocaine with the intent to
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distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Hanna argues that his

87-month sentence, 16 months above the advisory guidelines range of 60 to 71

months, is substantively unreasonable. 1 After review, we affirm.

       We review the substantive reasonableness of a sentence for an abuse of

discretion. Gall v. United States, 552 U.S. 38, 46, 51, 128 S. Ct. 586, 594, 597

(2007); United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016).

The 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.” Osorio-Moreno, 814 F.3d at 1287 (quotation

marks omitted). The party challenging the sentence shoulders the burden to show

that the sentence is unreasonable in light of the record and the § 3553(a) factors.

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

       In choosing a sentence, the district court must consider the 18 U.S.C.

§ 3553(a) sentencing factors but is not required to address each factor explicitly. 2

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


       1
       Hanna does not argue that his sentence is procedurally unreasonable or raise any
procedural error as to his sentencing.
       2
         The § 3553(a) factors include: (1) the 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 educational
or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
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Rather, a district court’s acknowledgment that it considered the § 3553(a) factors

and the parties’ arguments is generally sufficient. United States v. Docampo, 573

F.3d 1091, 1100 (11th Cir. 2009). A district court’s unjustified reliance on any one

§ 3553(a) factor can indicate an unreasonable sentence. United States v. Crisp,

454 F.3d 1285, 1292 (11th Cir. 2006). Nonetheless, a district court may “attach

‘great weight’ to one factor over others,” United States v. Shaw, 560 F.3d 1230,

1237 (11th Cir. 2009), and the weight given to a particular § 3553(a) factor is

committed to the sound discretion of the district court, United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007).

       When the district court imposes a sentence outside the advisory guidelines

range, the district court “must ‘consider the extent of the deviation and ensure that

the justification is sufficiently compelling to support the degree of the variance.’”

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552

U.S. at 50, 128 S. Ct. at 597). We give due deference to the district court’s

decision that the § 3553(a) factors, on the whole, justify the extent of the variance

and do not require extraordinary circumstances to justify such a sentence or

presume that such a sentence is unreasonable. Gall, 552 U.S. at 47, 51, 128 S. Ct.

at 594-95, 597; see also Shaw, 560 F.3d at 1238.



Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to
avoid unwarranted sentence disparities; and (10) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
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      Here, the district court did not abuse its discretion when it imposed an 87-

month sentence, 16 months above the high end of the advisory guidelines range.

In imposing the upward variance, the district court explained that it was

particularly concerned that Hanna, unlike his two codefendants in the drug

conspiracy, had prior federal convictions for conspiracy and possession with intent

to distribute of cocaine base, for which he had just recently completed serving a

121-month sentence. In fact, Hanna was on supervised release for these prior

federal cocaine convictions when he committed the instant cocaine offenses.

      The district court listened to Hanna’s arguments in mitigation, including,

inter alia, that: (1) in Hanna’s prior federal drug case, he had proceeded to trial,

had not accepted responsibility, and had been sentenced under a different version

of the Sentencing Guidelines; (2) in the instant case, Hanna had possessed a

smaller quantity of drugs (689 marijuana-equivalent kilograms) than in the prior

federal drug case (1,098 marijuana-equivalent kilograms); and (3) Hanna would

receive an additional prison term (possibly consecutive to the instant sentence) for

his supervised release violation in the prior federal drug case. The district court

determined, however, that the advisory guidelines range of 60 to 71 months was

too low given that Hanna’s previous 121-month federal sentence had not deterred

him. In addition to deterrence, the district court also stressed that the sentence

needed to protect the public from Hanna.


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       During the sentencing, the district court confirmed that, unlike Hanna,

neither of his codefendants had previously served a long prison sentence. The

district court stated that although it originally had planned to give Hanna a

sentence above 121 months, it had changed its mind in order to avoid any

unwarranted sentence disparities with Hanna’s codefendants. The district court

further pointed out that Hanna’s codefendants were equally culpable in terms of

their roles in the drug conspiracy, but that each had different criminal histories and

personal circumstances. 3 The district court stated that “in view of what the

situation is with the codefendants,” it would instead vary upward only “slightly.”

       The district court provided a sufficiently compelling justification for the 16-

month upward variance. It was within the district court’s discretion to give more

weight to deterrence, recidivism, and the need to protect the public. The district

court properly considered Hanna’s prior federal drug convictions, even though they

were factored into his guidelines calculations, given that they involved

substantially the same criminal conduct—dealing cocaine—and that the significant

sentence of 121 months he received for them had utterly failed to deter him. See

United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010) (explaining that




       3
        Hanna’s brother, codefendant Anthony Hanna, had an advisory guidelines range of 188
to 235 months because he was designated a career offender and received a 90-month sentence.
Codefendant Harold Gilbert had an advisory guidelines range of 70 to 87 months and received a
70-month sentence.
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a district court may consider conduct that was used to calculate the advisory

guidelines range in deciding whether to impose a variance based on the § 3553(a)

factors).

      There is no merit to Hanna’s argument that the district court created

unwarranted sentence disparities between Hanna and his two codefendants by

varying upward in Hanna’s case. The district court carefully considered the

individual circumstances of each codefendant in choosing their respective

sentences. As the district court explained, the difference in treatment between

Hanna and his codefendants was due in large part to the fact that Hanna was the

only participant in the drug conspiracy who had already served a ten-year sentence

for federal drug crimes and then promptly recidivated.

      There is also no merit to Hanna’s argument that his sentence is unreasonable

because he also will have to serve a prison term for his supervised release violation

in the prior federal drug case. Whatever punishment Hanna receives for violating

the conditions of his supervised release in his 2006 federal criminal case is separate

from Hanna’s punishment for his new criminal conduct in this case. See 18 U.S.C.

§ 3583(e)(3) (authorizing the district court to revoke a defendant’s supervised

release and impose a prison term if the court finds the defendant violated a

condition of supervised release); U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b) (explaining

that revocation sentences are not directed toward “any new criminal conduct,” but


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instead are designed to “sanction primarily the defendant’s breach of trust, while

taking into account, to a limited degree, the seriousness of the underlying violation

and the criminal history of the violator”).

      In light of the record as a whole, Hanna has not shown that the district court

abused its discretion by imposing a 16-month upward variance and sentencing

Hanna to 87 months’ imprisonment in the instant case.

      AFFIRMED.




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