              Case: 19-10706    Date Filed: 10/01/2019   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-10706
                            Non-Argument Calendar
                          ________________________

                 D.C. Docket No. 1:18-cr-00330-WKW-SRW-1

UNITED STATES OF AMERICA,

                                                               Plaintiff - Appellee,

                                      versus

MARCUS JAMAEL HILL,

                                                           Defendant - Appellant.
                          ________________________

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

                                (October 1, 2019)

Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Marcus Hill appeals his 78-month prison sentence for being a felon in

possession of a firearm. On appeal, Hill argues that his sentence, which included a
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seven-month upward variance, was substantively unreasonable because the court

placed too much weight on his criminal history. After careful review, we affirm.

       We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). The 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). 1 The

court must consider all of the § 3553(a) factors, but it may give greater weight to

some factors over others -- a decision that is within its sound discretion. United

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

       A sentence may be substantively unreasonable when a court unjustifiably

relies on any single § 3553(a) factor, fails to consider pertinent § 3553(a) factors,

bases the sentence on impermissible factors, or selects the sentence arbitrarily.

Pugh, 515 F.3d at 1191-92. However, a sentence that suffers from one of these

symptoms is not per se unreasonable; rather, we must examine the totality of the

circumstances to determine the sentence’s reasonableness. Id. at 1192. “[W]e will


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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not second guess the weight (or lack thereof) that the [court] accorded to a given [§

3553(a)] factor . . . as long as the sentence ultimately imposed is reasonable in light

of all the circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th

Cir. 2010) (quotation, alteration and emphasis omitted). We will vacate a sentence

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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)

(quotation omitted).

      One of the reasons district courts are given wide discretion in sentencing is

“their experience in handling criminal cases.” United States v. Shaw, 560 F.3d 1230,

1238 (11th Cir. 2009) (noting that a district court is not required to rely on “empirical

studies and ignore what they have learned from similar cases over the years.”).

Further, when a defendant is “just a step or two away from violent crime,” the

“public should not have to wait until [the defendant] takes those last steps before the

district court can provide it with the maximum protection the law allows.” Id. at

1241. In Shaw, the defendant, who had an “extensive criminal history,” possessed

a loaded pistol, “with its hammer back in firing position,” while speeding in a car.

Id. at 1232. He pled guilty to a § 922(g)(1) charge with a base offense level of 14

and the district court varied upward from a 37-month guideline sentence to a


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statutory maximum sentence of 120 months. Id. The district court relied heavily on

the § 3553(a) factors and varied upward to “protect the public” from the defendant’s

“further crimes.” Id. at 1237 (quotations omitted). We held that the district court’s

statutory maximum sentence was substantively reasonable because the defendant’s

“latest crime only accentuate[d] the need to protect society from him.” Id. at 1241.

      If the court varied from the guideline range after weighing the § 3553(a)

factors, we “may not presume that [the] sentence . . . is unreasonable and must give

due deference to the district court’s decision . . . .” Irey, 612 F.3d at 1187 (quotation

omitted). A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008). A district court need not discuss each § 3553(a) factor individually

if it acknowledges, generally, that it considered the “defendant’s arguments and the

§ 3553(a) factors.” Id. The sentencing court may base its findings of fact on facts

admitted by a defendant’s guilty plea, undisputed statements in the presentence

investigation report, or evidence presented at the sentencing hearing. United States

v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). Finally, the party challenging the

sentence bears the burden to show it is unreasonable. United States v. Tome, 611

F.3d 1371, 1378 (11th Cir. 2010).

      Here, Hill has not shown that the district court’s imposition of a 78-month

sentence was substantively unreasonable. For starters, the district court did not need


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to explicitly address each § 3553(a) factor because it said that it had considered the

§ 3553(a) factors and had determined that a 78-month sentence was necessary to

achieve the goals of sentencing. Gonzalez, 550 F.3d at 1324. In any event, the

record reveals that the district court did more than that, beginning with a discussion

of Hill’s positive mitigating factors, including his potential and the good things he

had done in the past.

      The district court also emphasized Hill’s criminal record -- which included

“about 12 convictions in the last [10] years,” 6 of which were felonies. As the district

court summarized, Hill’s probation had been revoked three times; he had four

instances of violence in his record; he had four pending cases at the time of the

instant arrest, which was the second time he was arrested for a gun violation; he had

fled from the cops; and he had assaulted a police officer in a previous case.

Moreover, his two gun-possession convictions sandwiched an admitted altercation

in which he punched a man hard enough to cause his death while under the influence

of illegal drugs; and the instant offense involved him acting dangerously by throwing

a loaded pistol into the air while fleeing the police. On this record, it was well within

the district court’s sound discretion to give substantial weight to Hill’s criminal

history, as well as the need to protect the general public from Hill’s criminal conduct.

Rosales-Bruno, 789 F.3d at 1254. It was also well within the court’s discretion,

based on Hill’s lengthy history of escalating criminal activity, to vary upward from


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the guideline range by seven months. See Shaw, 560 F.3d at 1232, 1241 (affirming

an 83-month upward variance, where the defendant was speeding with a loaded and

cocked pistol, observing that “[t]he public should not have to wait until [the

defendant] takes those last steps before the district court can provide it with the

maximum protection the law allows”). Further, to the extent the district court

considered Hill’s marijuana addiction, it did so only for the purposes of

recommending treatment while in prison. But even if, as Hill argues, the court

considered Hill’s marijuana use as compared to similar criminal defendants, it was

within the court’s discretion to consider “what [it has] learned from similar cases

over the years.” See id. at 1238.

      Finally, Hill’s 78-month sentence was well below the statutory maximum

penalty of 240 months’ imprisonment, which is indicative of reasonableness.

Gonzalez, 550 F.3d at 1324. In short, Hill has not shown that his sentence is

substantively unreasonable, and we affirm.

      AFFIRMED.




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