            Case: 14-15327    Date Filed: 08/21/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-15327
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 7:14-cr-00201-LSC-HGD-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

JAMES TRISTAN BOSTIC,

                                                           Defendant-Appellant.

                        ________________________

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

                              (August 21, 2015)

Before MARCUS, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

     James Tristan Bostic appeals his 120-month sentence imposed after he
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pleaded guilty to one count of being a felon in possession of a firearm under 18

U.S.C. § 922(g)(1). On appeal, Bostic argues his sentence—120 months, 74

months above the Guidelines range maximum—was procedurally and

substantively unreasonable. In particular, he argues that the district court gave

improper weight to testimony regarding a pending state criminal charge and

created a sentencing disparity with similarly situated defendants. After careful

consideration, we affirm.

      We review the reasonableness of a sentence for an abuse of discretion. Gall

v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). A sentence must be

both procedurally and substantively reasonable. United States v. Rodriguez, 628

F.3d 1258, 1264 (11th Cir. 2010). The party challenging the sentence bears the

burden of showing it is unreasonable in light of the record and the § 3553(a)

factors. United States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006).

      Bostic’s sentence was not procedurally unreasonable. A sentence is

procedurally unreasonable if the district court erred in calculating the Guidelines

range; treated the Guidelines as mandatory; failed to consider the 18 U.S.C.

§ 3553(a) factors; selected a sentence based on clearly erroneous facts; or failed to

adequately explain the sentence, including any deviation from the Guidelines

range. Rodriguez, 628 F.3d at 1264. Bostic argues that the district court

committed procedural error by failing to explicitly address potential sentencing


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disparities between Bostic and similarly situated defendants. However, “the

district court does not need to discuss or state each factor explicitly.” United States

v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). Beyond that, in

Gall, the Supreme Court made clear that

         avoidance of unwarranted disparities was clearly considered by the
         Sentencing Commission when setting the Guidelines ranges. Since
         the District Judge correctly calculated and carefully reviewed the
         Guidelines range, he necessarily gave significant weight and
         consideration to the need to avoid unwarranted disparities.
552 U.S. at 54, 128 S. Ct. at 599. Likewise here, because the district court

correctly calculated and considered the Guidelines range, it necessarily considered

the need to avoid unwarranted sentencing disparities. There was no procedural

error.

         Neither was Bostic’s sentence substantively unreasonable. The substantive

reasonableness of a sentence is determined in light of the totality of the

circumstances. Id. at 51, 128 S. Ct. at 597. We will not vacate a sentence as

substantively unreasonable unless we are left with “the definite and firm

conviction” that the district court clearly erred in weighing the § 3553(a) factors

and issued a sentence outside the range of reasonable sentences. Rodriguez, 628

F.3d at 1264–65 (quotation omitted). The district court is required to impose a

sentence “sufficient, but not greater than necessary, to comply with the purposes”

listed in § 3553(a)(2), including the need to reflect the seriousness of the offense,


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promote respect for the law, provide just punishment for the offense, deter criminal

conduct, and protect the public from the defendant’s future criminal conduct. In

imposing a particular sentence, the district court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable Guidelines range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. § 3553(a)(1),

(3)–(7).

      Where, as here, the district court imposes a sentence outside the Guidelines

range, it must explain why the variance is appropriate. The “justification for the

variance must be sufficiently compelling to support the degree of the variance.”

United States v. Irey, 612 F.3d 1160, 1186–87 (11th Cir. 2010) (en banc)

(quotation omitted). A major deviation from the Guidelines should be supported

by a more significant justification than a minor deviation. Gall, 552 U.S. at 50,

128 S. Ct. at 597.

      Here, the district court sentenced Bostic to the statutory maximum—120

months in prison—despite a Guidelines range of 37 to 46 months, and the

government’s recommendation of a within-Guidelines sentence. However, at

sentencing, the court heard substantial testimony about Bostic’s involvement in a

violent crime that had been committed within 24 hours of his arrest on the felon-in-


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possession charge. 1 The court then discussed at length why a 120-month sentence

was appropriate under the circumstances:

       This court does not believe that a Guideline sentence is appropriate in
       this particular instance. Specifically, the court finds that the
       defendant’s conduct, particularly with regard to his use of the firearm
       and maybe even the firearm that he was caught with in this case but
       certainly a firearm in beating, pistol whipping one of the victims in
       the home in Northport within 24 hours of the occasion when his
       firearm was taken from him at the motel and then he ran from the
       police. . . .

       I order you . . . to be imprisoned for 120 months, which is my
       understanding [of] the maximum sentence that I can give on this
       particular charge. I believe that is appropriate when I consider the
       need to reflect the seriousness of the offense and promote respect for
       the law and to provide just punishment for the offense as well as the
       nature and circumstances and history and characteristics of this
       defendant, particularly the characteristic of his violent propensity and
       nature in his committing a violent offense with a firearm within 24
       hours . . . of this particular offense. And also there is a need to protect
       the public from further crimes of the defendant.
The district court did not abuse its discretion when it sentenced the defendant

above the Guidelines range based on its assessment of the need to protect the

public, deter criminal conduct, and promote respect for the law.

       AFFIRMED.


       1
         Although Bostic had not been convicted of that crime at the time of his sentencing—the
charges were only pending—the district court could still consider evidence of it. In fact, courts
can even consider “relevant acquitted conduct,” proved by a preponderance of the evidence at
sentencing, so long as the sentence does not exceed what is authorized by the jury verdict.
United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006). Beyond that, Bostic argues that
the court incorrectly referred to his crime as a “robbery,” not a “burglary.” But since the court
made its determination based on the facts of the crime, not its legal classification, this argument
does not affect the outcome.
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