           Case: 18-11754   Date Filed: 04/08/2019   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11754
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cr-20031-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TORY JOHN STARR,

                                                         Defendant-Appellant.

                       ________________________

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

                              (April 8, 2019)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Tory Starr appeals his above-guideline 120-month sentence imposed after he

pleaded guilty to possession of ammunition by a convicted felon under 18 U.S.C.

§ 922(g)(1). On appeal, Starr argues that his sentence was both procedurally and

substantively unreasonable because the district court unjustifiably relied on his

criminal history to impose an upward-variance sentence. We affirm.

                        I.     Factual and Procedural Background

       Starr was charged in a single-count indictment with possession of

ammunition by a convicted felon under 18 U.S.C. § 922(g)(1). He pleaded guilty

without a plea agreement.

       Before Starr’s initial sentencing hearing, the probation officer prepared a

presentence investigation report (PSI) that described the “offense conduct” as

follows. In November 2015, a Hispanic police officer approached a person later

identified as Starr loitering outside a grocery store. After failing to comply with

the officer’s instructions, Starr went inside the store. Surveillance footage showed

Starr run to the back of an aisle, pull out a revolver, point it at the officer, and fire.

The officer took cover behind another aisle and returned fire. No one was injured,

and Starr fled the store. A witness told police the type of car the then-unknown

individual drove. When police officers discovered and pulled over the car, Starr

ran on foot. Police eventually caught and arrested him.




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       While in the police car, Starr stated that he was trying to kill the officer in

the store because he was tired of being harassed by Hispanic officers, and later

stated that the incident was the result of previous harassment he had suffered at the

hands of Hispanic officers. A search of Starr’s car uncovered 73 rounds of

ammunition. The PSI stated that Starr was subsequently charged with attempted

murder in state court.1

       When calculating the base offense level, the probation officer noted that the

Guideline for 18 U.S.C. § 922(g)(1) offenses is found in U.S.S.G. § 2K2.1. The

probation officer recommended, however, that the district court apply the

Guideline for first degree murder. According to the probation officer, because the

defendant used or possessed ammunition in connection with the attempted

commission of another offense—namely, first degree murder—the district court

should cross-reference that crime. See U.S.S.G. §§ 2K2.1(c)(1)(A), 2X1.1 (cross-

referencing provisions). The applicable guideline for attempted murder is found in

U.S.S.G. § 2A2.1(a)(1). That section provides that an offense, the object of which

would have constituted first degree murder, has a base offense level of 33.

U.S.S.G. § 2A2.1(a)(1). Starr also received a six-level enhancement under

U.S.S.G. § 3A1.2(c)(1) because he created a substantial risk of serious bodily



1
 At the time the PSI was prepared, Starr had not yet been convicted of the attempted murder
charge.
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injury to a police officer. Based on the base offense level of 39, and a criminal

history Category of V, the resulting Guideline range was 324 to 405 months’

incarceration. Because the statutory maximum sentence was 10 years, however,

the Guideline range was reduced to 120 months’ incarceration.

      Starr made several objections to the PSI. First, he objected to the PSI’s

discussion of the “offense conduct,” arguing that it was inaccurate and incomplete.

Next, he objected to the PSI’s Guideline range calculation, arguing that it

improperly cross referenced the attempted murder Guideline provision. According

to Starr, the district court had not made the necessary findings to hold that he had

attempted to murder the officer. He also argued that he was ineligible for the six-

level enhancement under U.S.S.G. § 3A1.2(c)(1) because there was no proof that

his possession of ammunition was connected to the shooting. Finally, Starr

objected to the factual allegations included in the PSI’s discussion of his criminal

history.

      At the first sentencing hearing, the district court heard evidence on Starr’s

objections. The government called Brian Blanco, a police officer, who testified

that he approached Starr in front of a convenience store and that Starr then entered

the store and starting shooting at Blanco and other store patrons, including

children. Blanco later testified that he did not remember if Starr shot at him,




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recalling only that Starr pointed a gun at him. 2 The only ammunition casings

recovered from the store belonged to Blanco’s gun.

       Based on this testimony, the district court impliedly overruled Starr’s

objections, concluding that the evidence showed beyond a preponderance that Starr

went into the convenience store with a gun and pointed the gun at Blanco, that

shots were fired, that Starr fled, and that he was later arrested. Ultimately, the

district court determined that the ammunition found in Starr’s car was used in

connection with attempted first degree murder. The court then sentenced Starr to

120 months’ incarceration followed by 3 years’ supervised release.

       Starr appealed, arguing that the district court failed to make the required

findings to apply the cross-reference provision, see U.S.S.G. § 2K2.1(c)(1), which

would apply if Starr’s ammunition was used “in connection with” the “attempted

commission of another offense.” Starr also argued that the district court did not

make the findings required to apply the Guideline section for attempted first degree

murder using that cross-reference provision. Specifically, he argued that the

district court failed to find by a preponderance of the evidence that he had the

requisite intent to attempt to murder the officer. We agreed with Starr, vacated his




2
  Video surveillance footage of the shooting was admitted into evidence. The footage indicates
that Starr did indeed fire a shot at Blanco.
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sentence and remanded for resentencing. United States v. Tory Starr, 717 F. App’x

918, 924 (11th Cir. 2017).

      On remand, the probation officer then prepared another PSI (“revised PSI”).

The “offense conduct” section remained virtually unchanged, adding only that

Starr had since been convicted in state court of first degree murder, felon in

possession of a firearm, and carrying a concealed firearm, for which he received a

20-year sentence of incarceration. In discussing Starr’s criminal history, the

revised PSI stated that he had five juvenile convictions and 20 prior adult

convictions, not including his state conviction for the instant offense.

      The revised PSI’s offense-level calculation was the same as in the previous

PSI. Based on an offense level of 39 and a criminal history category of V, the

resulting guideline range was 360 months to life imprisonment. But, because the

statutory maximum sentence was 10 years, the Guideline range was reduced to 120

months. Starr raised his prior objections again.

      At sentencing, the district court sustained Starr’s objections to the Guideline

range. The court recalculated the Guideline range, applying a base offense level of

20. See U.S.S.G. § 2K.2.1(a)(4)(A) (providing for a base offense level of 20 if

“the defendant committed any part of the instant offense subsequent to sustaining

one felony conviction of either a crime of violence or a controlled substance

offense”). It then applied a three-level total reduction for acceptance of


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responsibility under U.S.S.G. § 3E1.1(a) and (b). Based on an offense level of 17,

and a criminal history category of V, the resulting Guideline range was 46 to 57

months’ imprisonment.

      The court then heard oral arguments regarding the updated Guideline range.

The government argued for an upward-variance sentence of 120 months’

imprisonment based on the offense conduct and Starr’s criminal history. Starr

requested a within-guideline sentence in light of his state sentence. According to

Starr, by the date of his release from state prison he would be 53, an age where

recidivism was less likely.

      The district court sentenced Starr to 120 months’ incarceration, followed by

3 years’ supervised release, noting how Starr’s record evinced a “propensity to

violence” that made an upward variance appropriate to protect society from his

future criminal conduct. The court explained that it considered the parties’

statements, the PSI, the advisory guidelines, and the § 3553(a) factors. It stated

that the sentence was imposed because of the nature and circumstances of the

offense—that Starr used a firearm in a store where children were present and that

he stated that he intended to shoot at Hispanic police—and his criminal history.

Starr appeals, arguing that the sentence was procedurally and substantively

unreasonable.




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                                     II.       Discussion

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 592

(2007). Reviewing the reasonableness of a sentence requires us to consider (1)

whether the district court committed a significant procedural error, and (2) whether

the sentence is substantively reasonable. Id. at 51. We will reverse only if “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) (quoting United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). The party challenging the

sentence bears the burden of proving that the sentence is unreasonable in light of

the totality of the circumstances and the § 3553(a) factors. United States v. Tome,

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

      The district court commits a significant procedural error if it fails to

calculate, or improperly calculates, the Guideline range, treats the Guidelines as

mandatory, fails to consider the § 3553(a) factors, selects a sentence based on

clearly erroneous facts, or fails to adequately explain the sentence, including a

deviation from the Guideline range. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Although the district court must consider the § 3553(a) factors, it need not analyze


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each of the factors individually in order for the sentence to be procedurally

reasonable; rather, the district court may acknowledge that it has considered the

defendant’s arguments and the § 3553(a) factors. United States v. Sarras, 575 F.3d

1191, 1220 (11th Cir. 2009).

      “The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory factors

in § 3553(a) support the sentence in question.” United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008) (per curiam). A district court abuses its

discretion when it (1) fails to consider relevant factors that were due significant

weight, (2) gives an improper or irrelevant factor significant weight, or

(3) commits a clear error of judgment by balancing the proper factors

unreasonably. Irey, 612 F.3d at 1189. The district court must 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, promote

respect for the law, provide just punishment, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2).

The court must also consider the nature and circumstances of the offense and the

history and characteristics of the defendant. Id. § 3553(a)(1). The weight given to

any specific § 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).


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      Where the district court imposes a sentence outside the Guideline range, it

must provide a sufficiently compelling justification to support the degree of the

variance. Gall, 552 U.S. at 50, 128 S. Ct. at 597. A defendant’s criminal history,

on its own, can be a sufficiently compelling reason to justify an upward variance.

See United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (holding that the

district court did not abuse its discretion when it applied an upward departure to

the Guideline range and then imposed a sentence above it based solely on the

defendant’s criminal history).

      Here, the district court did not impose a procedurally or substantively

unreasonable sentence and thus did not abuse its discretion. The district court

committed no procedural error because it did not fail to calculate or incorrectly

calculate the Guideline range, it did not treat the Guidelines as mandatory, it stated

that it considered the sentencing factors, and it explained its sentence, including its

reasons for imposing an upward variance. See Gall, 552 U.S. at 51, 128 S. Ct. at

597. The sentence was also not based on clearly erroneous facts—Starr’s criminal

history includes several convictions for violent offenses. See id. at 51.

Accordingly, the district court committed no procedural error.

      Likewise, Starr’s sentence was not substantively unreasonable. Starr argues

that the district court improperly relied solely on his criminal history when

deciding to apply an upward variance. This argument fails because the district


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court considered the totality of the circumstances as well as the § 3553(a) factors in

making its determination. Specifically, the district court noted Starr’s criminal

history, his propensity for committing violent crimes, and how he is a danger to

society. See 18 U.S.C. § 3553(a)(1), (2)(C). It is true that the district court gave

substantial weight to Starr’s criminal history, but the decision to do so is within its

discretion, see Clay, 483 F.3d at 743, and was supported by the record—Starr has a

criminal history spanning the entirety of his adult life and early adolescence,

including five convictions for violent offenses.

      Because the sentence was neither procedurally nor substantively

unreasonably, we affirm.

      AFFIRMED.




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