           Case: 18-11124    Date Filed: 12/11/2018   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11124
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:17-cr-00343-VMC-AAS-1



UNITED STATES OF AMERICA,

                                                             Plaintiff–Appellee,

                                   versus


EMVORY BURTON,
                                                         Defendant–Appellant.



                       ________________________

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

                            (December 11, 2018)

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

PER CURIAM:
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       Emvory Burton appeals his 151-month sentence for possession with intent to

distribute cocaine base. Burton argues that his sentence is procedurally

unreasonable because the District Court erroneously afforded the United States

Sentencing Guidelines (“Guidelines”) a presumption of reasonableness and

because the Court failed to respond to two of his arguments for a downward

variance under 28 U.S.C. § 3553(a).

       We review the procedural reasonableness of a criminal sentence for abuse of

discretion. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir. 2009) (citation

omitted).

       We hold that the District Court abused its discretion by applying a

presumption of reasonableness to the Guidelines and thus vacate Burton’s sentence

and remand this case for rehearing and resentencing.1 Because we write for the



       1
           Burton offers two other arguments on appeal.
        He argues that the District Court erred by designating him a career offender because his
two prior convictions under Florida Statute 893.13 are not “controlled substance offenses” within
the meaning of § 4B1.1 of the Guidelines. The argument goes that because Florida law treats his
prior convictions as strict-liability offenses, and thus requires no mens rea, the offenses cannot
constitute offenses under § 4B1.1. Our precedent forecloses that argument. See United States v.
Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (holding that Florida Statute § 893.13(1) constitutes
a “controlled substance offense” as defined in § 4B1.2(b), which in turn defines the same for
purposes of § 4B1.1). We are bound by prior panel precedent unless and until that holding is
overruled en banc or by the Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th
Cir. 2009).
        He also argues that the District Court erred by comparing his criminal history to that of a
defendant who had, the same day, appeared before the Court for sentencing. Because this
precise circumstance is unlikely to arise at rehearing and resentencing, we do not address the
argument on appeal.

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parties and for the District Court, we set out facts only as they are needed to

support our analysis.

                                          I.

      Burton argues that the District Court abused its discretion by affording a

presumption of reasonableness to the Guidelines. We agree.

      The Guidelines are “merely ‘the starting point and the initial benchmark’”

for a sentence. United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015)

(quoting Gall v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 596 (2007)). For

that reason, a sentencing court “may not apply a ‘presumption of reasonableness’

to the Guidelines range.” United States v. Carpenter, 803 F.3d 1224, 1233 (11th

Cir. 2015) (quoting Nelson v. United States, 555 U.S. 350, 352, 129 S. Ct. 890, 892

(2009) (per curiam)). The court may, however, “determine, on a case-by-case

basis, the weight to give the Guidelines, so long as that determination is made with

reference to the remaining section 3553(a) factors.” United States v. Hunt, 459

F.3d 1180, 1185 (11th Cir. 2006).

      The District Court here made two statements during the sentencing hearing

that indicate that it viewed the Guidelines as presumptively reasonable:

   • “[T]he Eleventh Circuit tells me that a sentence within the guidelines is

      deemed a fair and just and appropriate sentence, but that we have the

      authority to depart upwards, downwards, and most certainly have the

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      authority—and, I would say, also the obligation to do the right thing, which I

      take it very seriously.”

   • “I note that [the imposed sentence is] within the guidelines, which is

      determined to be by the Eleventh Circuit reasonable as long as the Court

      looks at it and determines that a departure is not necessary, and that’s what

      I’ve done.”

      The Government offers three responses, none of which we find persuasive.

      As to the first statement, the Government argues that the District Court did

not abuse its discretion because the Court considered all of the § 3553(a) factors.

The Government’s logic is mistaken. What a court considers says nothing about

the lens through which that consideration occurs. Said differently, what matters is

not just the factors that go into the sentencing hopper but how those factors are

weighed. That this Court deferentially reviews a sentence but requires the

sentencing court to impose sentences without any attendant presumption is a way

of placing faith in the sentencing court, as the hearer of the matter in the first

instance, so long as the court is truly exercising its discretion, not that of the

Guidelines.

      The Government also argues that the District Court did not error because the

Court recognized its authority to depart from the Guidelines. Again, however, a




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court’s recognition of its ability to depart says nothing about how much deference

it should apply to the Guidelines, if any, before it does so.

      As to the second statement, it argues that the District Court’s mere

recognition of this Court’s deference to the Guidelines does not indicate that the

District Court itself applied any presumption of reasonableness. But language and

logic are intricately connected. It would be odd for the District Court to discuss

this Court’s deference if that deference did not somehow affect the manner in

which the District Court envisioned its role at sentencing.

      We of course recognize that sentencing occurs in real time and that the

sentencing judge speaks extemporaneously into a record. For that reason, we do

not vacate every sentence when the record contains “some statements that could be

interpreted as presumptions in favor of the Guidelines.” See Hunt, 459 F.3d at

1185. But here, the record does not indicate that the District Court’s deference to

the Guidelines was specific to Burton’s case. Cf. id.at 1185–86 (upholding a

sentence as procedurally reasonable when the judge explained his “practice to

follow the Sentencing Guidelines unless [he is] shown that there’s some good

reason not to” because he twice referenced the proper weight to give to the

Guidelines “in [that] particular case” (alteration omitted)).




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                                             II.

       Burton also argues that the District Court erred by failing to adequately

respond to two of his arguments for a variance under § 3553(a).

       He urged the Court to vary downward because when he entered his guilty

plea, both he and the Government operated under the assumption that he would not

be sentenced as a career offender. At the time, one of Burton’s prior convictions

was not listed on the report available to the parties. This discrepancy increased his

sentence perhaps five-fold between what he would have received as a non-career

offender and what the Government ultimately recommended.2

       He also urged the District Court to vary downward because his qualifying

convictions were controlled substance offenses, not crimes of violence. Burton

pointed to a 2016 report by the Sentencing Commission that finds that those

persons convicted of the former offenses are less likely to reoffend than those

convicted of the latter offenses and thus recommended that Congress amend the

career-offender directive, see 28 U.S.C. § 994(h), to treat the former less harshly.

       We do not address this set of arguments because the District Court on

remand has a new opportunity to address the reasons for its selected sentence. At




       2
        Before the conviction became known, the Guidelines called for a sentence of between
30 and 37 months. With knowledge of the conviction, however, the range increased to between
151 and 188 months, with the Government recommending the lowest end of that range.
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the hearing, we encourage the Court to further explain whether these arguments

merit a downward variance under § 3553(a).

                                        III.

      We doubt neither that the District Court recognized the gravity of its duty

when imposing Burton’s sentence nor that it gave the matter anything less than its

careful attention. But our review of a sentence requires not the Court’s earnestness

but its reasoning. When reviewing for abuse of discretion, reasoning is all that we

have to guide our analysis. Without the reasoning, then, we cannot ensure that the

sentence imposed conforms with what the law requires—reasoned consideration of

arguments fashioned with an eye toward the statutorily enumerated factors under

§ 3553(a). We accordingly VACATE Burton’s sentence and REMAND to the

District Court for rehearing and resentencing.

      SO ORDERED.




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