              Case: 16-16215     Date Filed: 06/16/2017   Page: 1 of 8


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-16215
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:16-cr-20050-DPG-15

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DARREL PRENELL GIBBS,
a.k.a. G,

                                                               Defendant-Appellant.

                           ________________________

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

                                  (June 16, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Darrel Gibbs appeals his 120-month sentence after pleading guilty

to one count of conspiring to possess with the intent to distribute at least 100 grams
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of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(i). He argues that the

court failed to consider his health condition and all 18 U.S.C. § 3553(a) factors

other than his criminal history.

      The sole issue this appeal raises is whether Gibbs’s sentence is substantively

unreasonable. We find that it is not and affirm the district court’s decision.

                                           I.

      A grand jury indicted Gibbs and nineteen codefendants in a twelve-count

indictment for various drug-trafficking crimes. Gibbs was charged in only Count

3, which alleged conspiracy to possess with the intent to distribute at least 100

grams of heroin, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(i). He pled

guilty.

      At sentencing, the district court determined Gibbs’s offense level to be 21,

after accounting for acceptance of responsibility. It found Gibbs’s criminal history

to fall within Category III. As a result, Gibbs’s guideline range was 46 to 57

months. But the minimum term of imprisonment for Gibbs’s crime was five years.

21 U.S.C. § 841(b)(1)(B). So under U.S.S.G. § 5G1.1(b), Gibbs’s guideline range

became 60 months’ imprisonment.

      The government recommended the mandatory minimum sentence of 60

months’ imprisonment. After hearing arguments from both sides, the district court

sentenced Gibbs to 120 months’ imprisonment. It noted that it had considered the


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presentence investigation report (“PSR”), the statements of the parties, the

advisory guideline range, and the 18 U.S.C. § 3553(a) factors. In explaining the

basis for the sentence it imposed, the court noted that it was deeply concerned

about Gibbs’s criminal history.      In the court’s view, Gibbs’s criminal-history

category did not adequately represent the number of prior felony convictions he

had sustained, the severity of the crimes involved in those cases, and the short

period of time between convictions.

      The court also accounted for Gibbs’s health conditions in its sentence.

Gibbs was wheelchair bound, received dialysis three times per week, had a history

of drug addiction, and had a number of medical complications while incarcerated

pending trial. So at the request of Gibbs’s attorney, the district court recommended

that Gibbs be permitted to participate in a drug-treatment program and that he be

housed in Springfield, Missouri, one of the only two federal facilities that take

prisoners with dialysis issues.

                                          II.

      We review the substantive reasonableness of a sentence, regardless of

whether the sentence imposed falls inside or outside the guideline range, under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41

(2007). When the district court committed no significant procedural error, such as

improperly calculating the guideline range or inadequately explaining the chosen


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sentence, we examine whether, in light of the totality of the circumstances, the

sentence imposed was substantively reasonable. Id. at 51. The appellant bears the

burden of establishing 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).

      We defer to the district court because it sees and hears firsthand from the

defendant and the government. So it is well positioned to fashion an appropriate

sentence. See United States v. Rosales-Bruno, 789 F.3d 1249, 1255 (11th Cir.

2015). As a result, when the ultimate sentence is reasonable in light of all the

circumstances, we will not second-guess the weight the district court placed on a

particular factor or factors. United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010). We need not deem the district court’s sentence the most appropriate one

possible, as long as the sentence is reasonable. United States v. Irey, 612 F.3d

1160, 1191 (11th Cir. 2010) (en banc). But a court abuses its discretion if it (1)

fails to consider relevant factors that were due significant weight, (2) gives an

improper or irrelevant factor significant weight, or (3) balances the proper factors

unreasonably and so commits a clear error of judgment. Id. at 1189.

      The district court’s task is to impose a sentence “sufficient, but not greater

than necessary” to (1) “reflect the seriousness of the offense,” (2) “promote respect

for the law,” (3) “provide just punishment for the offense,” (4) deter criminal


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conduct, (5) “protect the public from the defendant’s future criminal conduct,” and

(6) provide the defendant with any training and medical treatment in the most

effective manner. 18 U.S.C. § 3553(a)(2); Rosales-Bruno, 789 F.3d at 1253–54.

In imposing a particular sentence, the court must consider (1) the nature and

circumstances of the offense, (2) the history and characteristics of the defendant,

(3) the kinds of sentences available, (4) the applicable guideline range, (5) the

pertinent policy statements of the Sentencing Commission, (6) the need to avoid

unwarranted sentencing disparities, and (7) the need to provide restitution to

victims. 18 U.S.C. § 3553(a).

                                        III.

      Gibbs contends that the trial court erred in imposing a 100% upward

variance from the high end of the guidelines range. In particular, Gibbs complains

that the court placed too much weight on his criminal history and totally excluded

all other § 3553(a) factors, including his medical condition. We are not persuaded.

      The Sentencing Guidelines are advisory. United States v. Booker, 543 U.S.

220, 245 (2005). After the sentencing court has correctly calculated the guideline

range, it must seriously consider the Sentencing Guidelines, but it can also tailor

the sentence in light of other § 3553(a) factors, with proper explanation. Gall, 552

U.S. at 46.




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      Criminal history is an appropriate and relevant factor to consider under 18

U.S.C. § 3553(a). Despite the express consideration of criminal history in the

Sentencing Guidelines, district courts have considerable latitude in deciding how to

weigh a defendant’s prior crimes. Rosales-Bruno, 789 F.3d at 1261.

      In Rosales-Bruno, for example, the district court placed particular emphasis

on Rosales-Bruno’s criminal history.     Id. at 1253.    We upheld the 87-month

sentence, which was 60 months above the high end of the guideline range, and

involved, as a percentage, a variance significantly greater than the one at issue

here. Id. at 1251.

      In Gibbs’s case, the district court similarly held that Gibbs’s criminal

category did not adequately represent his criminal history. Contrary to what Gibbs

argues, the district court focused on the “individualized, particularized, specific

facts” in sentencing Gibbs. Id. at 1260. It expressly considered the “very serious

offenses” of which Gibbs had been convicted. And it accounted for Gibbs’s

“almost complete[] noncomplian[ce]” with his supervised-release conditions

following his release from earlier imprisonment. While Gibbs takes issue with his

longer sentence in comparison to those of his codefendants who shared the same

criminal-history category, the district court explained that “no[t] one of [the

codefendants] have these priors [that Gibbs had]. I mean, not even close.” That’s

a permissible basis for distinction between otherwise-similarly situated defendants.


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      Nor did the district court consider only Gibbs’s criminal history. Rather, the

court expressly stated that it has considered all the § 3553(a) factors and statements

of the parties.   And though the district need only acknowledge that it has

considered the defendant's arguments and the § 3553(a) factors instead of explicitly

discussing each factor, United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008), here, the court highlighted several § 3553(a) factors other than the criminal

history, including the need to protect the public and the characteristics of the

defendant.

      The district judge also was fully aware of and considered Gibbs’s health

condition. Indeed, at the request of the defendant, the court recommended to the

Bureau of Prisons that Gibbs be permitted to participate in the intensive drug-

treatment program and be sent to Springfield, Missouri, which is one of two

facilities that take prisoners with dialysis issues. We cannot say that the district

court was unreasonable in determining that, even accounting for Gibbs’s medical

impairments, the sentence was necessary to further the goals of § 3553(a). See

United States v. Hayes, 762 F.3d 1300, 1308 (11th Cir. 2014) (noting that age and

health are not overwhelming factors to support the defendant’s sentence of

probation).




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                               IV.

For the foregoing reasons, we affirm the sentence of the district court.

AFFIRMED.




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