               Case: 15-15542       Date Filed: 03/20/2017      Page: 1 of 24


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-15542
                              ________________________

                      D.C. Docket No. 2:15-cr-00013-SPC-CM-1


UNITED STATE OF AMERICA,
                                                                  Plaintiff-Appellee,

                                            versus

MICHAEL J. RONGA,
                                                                  Defendant-Appellant.

                              ________________________

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

                                     (March 20, 2017)

Before TJOFLAT and ROSENBAUM, Circuit Judges, and REEVES*, District
Judge.




* Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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REEVES, District Judge:

      Appellant Michael Ronga is a former deputy with Florida’s Lee County

Sheriff’s Office. In May 2013, Ronga was accused of assaulting and robbing

Rodolfo Lopez-Castaneda, a Guatemalan-national, after being directed to give him

a courtesy ride home. Ronga initially denied the assault, claiming that no

altercation occurred. But after several hours of interrogation, Ronga changed his

story by admitting that he took Lopez-Castaneda to a construction site, frisked him,

and shoved him during the encounter. However, Ronga consistently denied that he

robbed the victim or struck him with a closed-fist. Ronga was later indicted on

federal charges of deprivation of rights while acting under color of law, and

obstruction of justice. Ronga was convicted on both counts following a six-day

jury trial. During a subsequent sentencing proceeding, Ronga received a below-

guidelines sentence which included 72 months’ incarceration. Ronga appeals both

his conviction and sentence. After careful review, we affirm.

                              I.      BACKGROUND

      A.     Facts

      In the early morning hours of May 5, 2013, Lee County Sheriff’s Deputies

were called to a restaurant and bar in Bonita Springs, Florida. Security personnel

at the restaurant sought law enforcement assistance with a patron who refused to

leave the premises. The patron was accompanied by a minor who was permitted to

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enter the bar based on assurances that he would not consume alcohol. But after

discovering that the minor was consuming alcohol, security personnel asked both

parties to leave. The patron refused. When Sheriff’s deputies Sergeant Mark

Young and Deputy Ronga arrived, the patron was sitting on a bench outside the

restaurant. Restaurant management did not wish to press charges, but asked the

deputies to remove the patron from the premises. In response, Sergeant Young

directed Ronga to “get him out of here,” referring to the patron, later identified as

Lopez-Castaneda. Ronga performed a protective frisk of Lopez-Castaneda and

then placed him in the rear seat of his vehicle for a courtesy ride home. Ronga,

however, did not take Lopez-Castaneda home. Instead, Ronga drove to a

construction site of a new housing subdivision. The events that followed were

disputed during trial.

      Lopez-Castaneda testified that Ronga frisked him, removed his cell phone

and money, and then hit him numerous times with a closed fist, knocking him to

the ground. Hospital records revealed that Lopez-Castaneda suffered a broken

nose and a bruised lip, thus confirming that a violent confrontation of some sort

had occurred. According to GPS records from the police cruiser, the entire

altercation lasted only a minute. The evidence offered during trial also indicated

that a struggle had occurred at the construction site.




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          Following the altercation, Ronga proceeded with his shift, driving to meet

Sergeant Young for coffee at a nearby convenience store. Some hours later,

Lopez-Castaneda and his sister reported the incident to law enforcement. Ronga

was still on his shift at the time and responded to the call for assistance. Lopez-

Castaneda immediately identified Ronga as the assailant. Lopez-Castaneda asked

to be taken to a hospital and was later transported there by ambulance.

          During the investigation of the incident, investigators took Lopez-Castaneda

to the site of the altercation and obtained his statement.1 Investigators also

acquired physical evidence and took photographs of Lopez-Castaneda,

photographs of the location of the altercation, and clay molds of footprints from

the construction site. They also obtained a warrant and searched Ronga’s

residence for additional evidence.

          Ronga was questioned by Lieutenant Murphy when he returned to work that

evening. Murphy described Ronga as cautious but cooperative during this

questioning. Ronga recounted a near-head-on collision occurring prior to the

altercation with Lopez-Castaneda which left him scared and shaken. He recounted

being called to the restaurant regarding a patron accompanied by an underage

drinker. Ronga described Lopez-Castaneda as intoxicated, but calm and collected.


1
          Lieutenant William Murphy interviewed Lopez-Castaneda and obtained his version of the
events.

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According to Ronga, Lopez-Castaneda did not present any problems prior to his

being dropped off at his home in the Sandy Hollow apartment complex. Ronga

insisted that “he had no problems with this guy,” referring to Lopez-Castaneda.

      On several occasions, however, Ronga reiterated that he was stressed the

night of the incident as a result of the near-head-on collision. He insisted

numerous times that there was no altercation with Lopez-Castaneda, and that

Lopez-Castaneda had not “done anything stupid.” Ronga was later confronted

with GPS data indicating that he had gone to the construction site and not to

Lopez-Castaneda’s apartment complex, which was directly contrary to his earlier

representations. Ronga then reiterated that his memory was fuzzy due to the stress

of the earlier incident, but finally admitted that he had, in fact, taken Lopez-

Castaneda to the construction site.

      Ronga eventually admitted that he pushed Lopez-Castaneda twice and

removed a cell phone from his pocket. But he consistently denied that he took

money from Lopez-Castaneda, or struck Lopez-Castaneda with a closed fist.

According to Ronga, after frisking Lopez-Castaneda, he may have left the victim’s

cell phone on the trunk of his vehicle. However, Ronga denied having possession

of the cell phone and denied having any idea of its location.

      Ronga also denied that Lopez-Castaneda attacked him, but agreed to the

interrogator’s suggestion that he pushed Lopez-Castaneda in an effort to get him to

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walk towards his residence. After being confronted with the physical evidence and

the extent of Lopez-Castaneda’s injuries, Ronga admitted to pushing him a second

time. Ronga claimed that Lopez-Castaneda came toward him as he was returning

to his vehicle. Ronga contended that he pushed Lopez-Castaneda away, saying

“just go.” Ronga admitted that during the second push his left hand may have

struck Lopez-Castaneda’s face.

      Ronga was arrested following the interview. Lopez-Castaneda’s cell phone

was later recovered near the side of the road, just outside the entrance to the

construction site.

      B.     Procedural History

      Ronga was found guilty following trial of “willfully depriving Rodolfo

Lopez-Castaneda of his Constitutional right not to be deprived of liberty and

property without due process of law, while acting as a deputy sheriff of the Lee

County Sheriff’s Office, in violation of 18 U.S.C. § 242.” Paragraph 1B of the

Verdict Form then directed the jury to determine the specific constitutional

deprivation. The three options included: “the right to be free from the intentional

use of excessive force by assaulting Rodolfo Lopez-Castaneda, resulting in bodily

injury;” “the right to be free from the unreasonable seizure of property by forcibly

taking currency belonging to Rodolfo Lopez-Castaneda, resulting in bodily injury”

and/or; “the right to be free from the unreasonable seizure of property by forcibly

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taking a cell phone belonging to Rodolfo Lopez-Castaneda, resulting in bodily

injury.” The jury checked the first and third options, finding that Ronga assaulted

and forcibly took the victim’s cell phone, but not his money. The jury also found

Ronga guilty of “knowingly engaging in misleading conduct towards another

person, with intent to hinder, delay and prevent the communication to a law

enforcement officer of information relating to the commission and possible

commission of a federal offense, namely, deprivation of civil rights under color of

law, in violation of 18 U.S.C. § 1512(b)(3).”

      Ronga now appeals his conviction and sentence. Ronga asks this court to

acquit him of the obstruction charge, arguing that no misleading information was

actually transferred to federal officials because he ultimately abandoned his earlier

false statements and told the truth. Ronga also seeks a new trial on the assault and

robbery charge, contending that the district court improperly declined to give a

self-defense instruction. Finally, Ronga challenges his 72-month, below-guideline

sentence as substantively unreasonable.

                        II.    STANDARD OF REVIEW

      The sufficiency of the evidence supporting a conviction is reviewed de novo.

See United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). Further, “[i]n

reviewing the sufficiency of the evidence, we look at the record in the light most

favorable to the verdict and draw all reasonable inferences and resolve all

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questions of credibility in its favor.” United States v. White, 663 F.3d 1207, 1213

(11th Cir. 2011) (internal quotation marks and citation omitted). Questions of

statutory construction are also reviewed de novo. See United States v. Evans, 478

F.3d 1332, 1341 (11th Cir. 2007). We likewise review de novo the issue of

whether a requested jury instruction is supported by sufficient evidence. United

States v. LaFond, 783 F.3d 1216, 1221 (11th Cir. 2015); United States v. Calderon,

127 F.3d 1314, 1329 (11th Cir. 1997).

      A district court’s refusal to give a requested jury instruction is reviewed for

abuse of discretion. United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009)

(en banc). The refusal “is reversible error where the requested instruction (1) was

correct, (2) was not substantially covered by the charge actually given, and (3)

dealt with some point in the trial so important that failure to give the requested

instruction seriously impaired the defendant’s ability to conduct his defense.”

United States v. Eckhardt, 466 F.3d 938, 947–48 (11th Cir. 2006). “[W]e will only

reverse if we are left with a substantial and eradicable doubt as to whether the jury

was properly guided in its deliberations.” Id. at 948.

      Finally, we review the substantive reasonableness of a sentence under an

abuse of discretion standard. See United States v. Rosales-Bruno, 789 F.3d 1249,

1255 (11th Cir. 2015) (citing Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597, 169 L. Ed. 2d 445 (2007)). “A district court abuses its discretion when it

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(1) fails to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a

clear error of judgment in considering the proper factors.” United States v. Campa,

459 F.3d 1121, 1174 (11th Cir. 2006) (en banc).

                                III.   DISCUSSION

      A.     Sufficiency of the Evidence

      Ronga contends that the evidence is insufficient to support his conviction

under the obstruction-of-justice charge given to the jury since he told the “truth”

before any of his misleading statements were communicated to a federal officer.

He argues that this Court should adopt a narrow interpretation of the obstruction-

of-justice statute, 18 U.S.C. § 1512(b)(3) and, interpreting the statute as he

proposes, find that the evidence presented by the Government in this case was

insufficient to sustain his conviction. Ronga’s proffered statutory interpretation

fails, and we find that there was sufficient evidence for a reasonable jury to find

that Ronga obstructed justice under § 1512(b)(3).

       “To prove a violation of § 1512(b)(3), the government must establish

beyond a reasonable doubt that the defendant knowingly and willfully (1) engaged

in misleading conduct toward another person, (2) with the intent to hinder, delay or

prevent the communication of information to a federal law enforcement officer or

federal judge, (3) about the commission or the possible commission of a federal

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crime.” United States v. Veal, 153 F.3d 1233, 1253 (11th Cir. 1998) (abrogated on

other grounds by Fowler v. United States, 563 U.S. 668, 131 S. Ct. 2045, 179 L.

Ed. 2d 1099 (2011)). A state law enforcement officer qualifies as “another person”

for purposes of the statute. Id. at 1246. Further, a conviction under § 1512(b)(3)

does not require proof that a federal investigation was ever initiated or that it was

ongoing at the time the statement was made. See United States v. Ronda, 455 F.3d

1273, 1288 (11th Cir. 2006). Rather than require that a federal proceeding be

ongoing, § 1512(b)(3) “requires only that a defendant intended to hinder, delay, or

prevent communication to [a federal official].” Id. (citing Veal, 153 F.3d at 1250).

And there need only be a “reasonable likelihood” that the communication will be

made to a federal official. United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir.

2015) (citing Fowler¸ 563 U.S. at 670, 131 S. Ct. at 2048). In short, where a

defendant makes a misleading statement to a law enforcement officer, the

statement is made with “intention to thwart an inquiry” into a possible federal

crime, and there is a reasonable likelihood that the misleading statement will be

communicated to a federal official, all elements of the crime are satisfied.

      On appeal, Ronga argues that, to sustain a conviction under the subject

federal statute, there must be an actual transfer of misleading information.

Additionally, he contends that, when an individual abandons his deceptive ways

and provides truthful information, the conviction cannot stand. If either argument

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has merit, Ronga would be entitled to a new trial, rather than the acquittal he seeks.

Whether he actually provided truthful information in response to questioning

would require a jury finding. But here, there is sufficient evidence that he did not

provide such information. Therefore, acquittal would not be appropriate.

       Ronga cites United States v. Veal, 153 F.3d 1233 (11th Cir. 1998), in

support of his statutory interpretation argument. We recognized in Veal that the

intention behind § 1512(b)(3) is to “ensure that information received by federal

investigators or judges regarding a potential crime be correct, truthful, and

complete to facilitate a full and fair investigation and adjudication.” 153 F.3d at

1252. Further, federal jurisdiction under § 1512(b)(3) is “based on the federal

interest of protecting the integrity of potential federal investigations by ensuring

that transfers of information to federal law enforcement officers and judges relating

to the possible commission of federal offenses be truthful and unimpeded.” Id.

The defendant relies on these statements as a basis for his argument that a transfer

of misleading information is necessary for a conviction to stand under the statute.

However, these policy statements do not control interpretation of the statute.

Further, the legislative history does not support the defendant’s narrow reading of

the statute.

       “[I]t is a well established axiom of statutory interpretation that in construing

a statute, courts must first look to the plain meaning of the statute itself.” Solis-

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Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per

curiam). Despite the defendant’s arguments about the statute’s purpose, “[r]eview

of the legislative history is not necessary unless a statute is inescapably

ambiguous.” Id. Here the text of the statute is clear as to both the physical act,

actus reus, and the mental intent, mens rea, necessary for the crime. The actus

reas was the defendant’s engaging in misleading conduct. The mens rea was his

intent to hinder, delay, or prevent communication of information relating to a

possible federal offense. The text of the statute does not require the actual transfer

of misleading information to a federal official. It provides:

      (b) Whoever knowingly uses intimidation, threatens, or corruptly
      persuades another person, or attempts to do so, or engages in
      misleading conduct toward another person, with intent to--
      …
      (3) hinder, delay, or prevent the communication to a law enforcement
      officer or judge of the United States of information relating to the
      commission or possible commission of a Federal offense…
      shall be fined under this title or imprisoned not more than 20 years, or
      both.

18 U.S.C.A. § 1512.

      Despite this Court’s earlier discussion of the statute’s purpose, we

acknowledged in Veal that the plain meaning of the statute is considered before

resorting to legislative intent. 153 F.3d at 1245. The question presented in Veal

was whether the term “another person” could include a state investigator. Because

the term was unambiguous, determining its meaning did not require resort to

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legislative history. Id. Likewise, the text of the statute here is unambiguous and

supports the defendant’s conviction. Even if its purpose is to prevent the transfer

of misleading information to federal officials, it follows that the statute

criminalizes attempts to provide misleading information or inhibit truthful

information from being transferred.

      What is left is the defendant’s argument that when an individual eventually

provides truthful information, he cannot be charged with obstruction. But Ronga

fails to offer any authority to bolster this argument and it is not supported by the

plain text of the statue. The actus reus is “engag[ing] in misleading conduct

toward another person” and the mens rea is “with intent to hinder, delay, or

prevent the communication . . . of information relating to the commission or

possible commission of a Federal offense.” Perhaps it is possible that when an

individual comes clean, he or she may no longer possess the necessary mens rea.

However, the elements of the crime are met before the individual provides truthful

information, and there is no requirement that the individual persist in deceptive

behavior to support a conviction.

      In this case, the jury could have concluded that it was not reasonably likely

that misleading information would be transferred to a federal investigator. It could

have found that Ronga eventually provided truthful information, and that it was not

likely that his prior deceptive comments would be transferred to federal officials.

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But the jury did not reach this conclusion. Instead, it was faced with competing

narratives: (i) the defendant’s sworn statement that he pushed the victim twice, but

only hit his face incidentally, and with an open hand, and conversely (ii) the

victim’s testimony and other evidence that he was punched in the face repeatedly.

To this day, the defendant denies that he punched the victim with a closed fist. If

the jury credited the victim’s statement and supporting evidence over the

defendant’s testimony, then it could have reasonably found that a deceptive

statement was actually communicated to the FBI.

      B.     Self-Defense Instruction

      Ronga also seeks a new trial based on the district court’s refusal to give a

self-defense instruction. Whether the defense produced sufficient evidence to

obtain a requested jury instruction is reviewed de novo. United States v. LaFond,

783 F.3d 1216, 1221 (11th Cir. 2015); United States v. Calderon, 127 F.3d 1314,

1329 (11th Cir. 1997). However, a district court’s refusal to give a requested jury

instruction is reviewed for abuse of discretion. United States v. Svete, 556 F.3d

1157, 1161 (11th Cir. 2009) (en banc). “We consider three factors when

determining whether the district court’s refusal to give a requested jury instruction

warrants reversal: (1) whether the requested instruction is a substantially correct

statement of the law; (2) whether the jury charge given addressed the requested

instruction; and (3) whether the failure to give the requested instruction seriously

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impaired the defendant's ability to present an effective defense.” United States v.

Hill, 799 F.3d 1318, 1320 (11th Cir. 2015) (internal quotation marks and citation

omitted); see also United States v. Eckhardt, 466 F.3d 938, 947–48 (11th Cir.

2006).

      Self-defense is an affirmative defense on which the defendant bears the

burden of production. United States v. Alvarez, 755 F.2d 830, 842 n.12 (11th Cir.

1985) (citing Patterson v. New York, 432 U.S. 197, 231 n.18, 97 S. Ct. 2319, 2338

n.18, 53 L. Ed. 2d 281 (1977) (Powell, J., dissenting)). Once the defendant meets

this obligation, the burden of persuasion shifts to the government. Id. Specifically,

the government must then prove, beyond a reasonable doubt, that the defendant

was not acting in self-defense. Id.

      Our precedent has not been consistent in defining the defendant’s burden of

production. See United States v. Alvarado, 808 F.3d 474, 488-89 (11th Cir. 2015)

(discussing cases). Some opinions have recognized a “sufficient evidence for a

reasonable jury to find in his favor” standard. Id. at 489, citing Mathews v. United

States, 485 U.S. 58, 63, 108 S. Ct. 883, 887, 99 L. Ed. 2d 54 (1988); United States

v. Gutierrez, 745 F.3d 463, 472 (11th Cir. 2014). The United States Court of

Appeals for the Fifth Circuit has expressly adopted this standard. See United

States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (“The requirement that the

evidence be sufficient to persuade a reasonable juror . . . extends to all defenses for

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which the defendant bears the initial burden of production.”). However, we have

often described the standard for obtaining a requested defense instruction to be

“any foundation” in the evidence. See Alvarado, 808 F.3d at 489 (listing cases).

As stated in United States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011), “[a]

criminal defendant has the right to a jury instruction on a proposed theory of

defense, provided it is a valid defense and there is some evidence at trial to support

the instruction.” Assuming there is some tension between these standards, as in

Alvarado, we need not harmonize them here, because the defendant has failed to

meet either test.

      The instruction sought by the defendant correctly states the law as it relates

to self-defense. It provides:

      A person is entitled to defend himself against the immediate use of
      unlawful force. But the right to use force in self-defense is limited to
      using only as much force as reasonably appears to be necessary under
      the circumstances.

      The government has the burden of proving the defendant did not act in
      self-defense. For you to find the defendant guilty, the government
      must prove that it was not reasonable for the Defendant to think that
      the force he used was necessary to defend himself against an
      immediate threat. Unless the government proves this beyond a
      reasonable doubt, you must find the defendant not guilty.

      The evidence Ronga offers in support of this instruction include his words

“get away from me,” which he describes as signifying a perceived threat. Further,

he points to Sergeant Nalewaik’s testimony regarding the victim’s description of

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the altercation. Nalewaik testified that, in witnessing Lopez-Castaneda describe to

a Spanish-speaking officer what had happened, it seemed like Lopez-Castaneda

turned and contested being frisked. 2 Further, Ronga points to the re-cross

testimony of Captain Murphy. When asked whether Lopez-Castaneda challenged

being frisked a second time, Murphy answered “possibly.” And when asked

whether Lopez-Castaneda could have intended to attack Ronga, Murphy answered

“possibly.” There was also testimony elicited regarding a law enforcement

officer’s right to use force to protect himself, based upon a “reasonable belief” that

the officer would feel threatened.

       Even taking this evidence in the light most favorable to Ronga, it is

insufficient to require that a self-defense instruction be given to the jury. As an

initial matter, Murphy’s acknowledgement that Lopez-Castaneda could “possibly”

have been about to attack Ronga is speculation. “While a particular piece of

evidence standing alone may support inferences that warrant an instruction, those

inferences may evaporate after reviewing the entire record.” United States v. Scout,

112 F.3d 955, 961 (8th Cir. 1997) (quoting Branch, 91 F.3d at 712). Murphy was

not present when the incident between Ronga and Lopez-Castaneda occurred.

Moreover, Ronga himself never claimed to feel threatened. Instead he expressly


2
        At trial, Lopez-Castaneda testified otherwise. Rather than turning to object to the frisk,
he alleged that Ronga turned him around after the frisk, and began punching him.

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disavowed that his pushing of Lopez-Castaneda was in response to an attack. And

while Ronga’s statement “get away from me” might be perceived as responsive to

a perceived threat, Ronga denied during his interrogation that he was threatened.

According to Ronga, he was just trying to get Lopez-Castaneda to leave. As for

Nalewaik’s testimony, he could not understand what Lopez-Castaneda was saying

at the time because Lopez-Castaneda was speaking Spanish, and the Spanish-

speaking officer who could understand what Lopez-Castaneda said indicated that

Lopez-Castaneda did not say that he resisted the frisking.

       Viewing the evidence in the light most favorable to the defendant does not

mean viewing any statement or assertion out of context. Viewing the record as a

whole, the evidence does not support a self-defense instruction. As stated in

Branch, “[w]e review the record cognizant that the merest scintilla of evidence in

the defendant’s favor does not warrant a jury instruction regarding an affirmative

defense for which the defendant bears the initial burden of production.” 91 F.3d,

712.

       The district court also concluded that a self-defense instruction can be fairly

and adequately encompassed in another instruction requiring willfulness. The

defendant contends, and we have recognized in United States v. Arias, 431 F.3d

1327, 1340 (11th Cir. 2005), and United States v. Ruiz, 59 F. 3d 1151, 1154 (11th

Cir. 1995), that “a criminal defendant has the right to have the jury instructed on

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his theory of defense, separate and apart from instructions given on the elements of

the charged offense.” However, because the defendant did not meet his burden of

production, he was not entitled to a separate instruction.

      The final question is whether the district court’s failure to give the requested

instruction substantially inhibited the defendant’s ability to mount an effective

defense. Even without the self-defense instruction, the government bore the

burden of proving that Ronga’s use-of-force was willful and unlawful. When an

officer uses force reasonably necessary to prevent harm, he acts lawfully.

Therefore, the defendant could not have intended to violate the law if he were

acting legitimately in self-defense. Because the defendant was allowed to contest

the willfulness element, he was not inhibited from presenting an effective defense.

      C.     Substantive Reasonableness of Sentence

      Finally, Ronga argues that his below-guideline, 72-month term of

incarceration is substantively unreasonable because it is greater than necessary to

fulfill the statutory purposes listed in 18 U.S.C. § 3553(a).        Specifically, he

contends that remand is required because the district court failed to adequately

consider the circumstances of the offense and the need to avoid unwarranted

sentencing disparities among defendants convicted of similar conduct. Neither

argument has merit.




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

discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597, 169 L. Ed. 2d 445 (2007). Reviewing reasonableness is a two-part

process which requires us to first ensure that the district court did not commit a

significant procedural error, and second, that the sentence is substantively

reasonable.   Id.   The party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable. United States v. Tome, 611 F.3d

1371, 1378 (11th Cir. 2010).       In evaluating substantive reasonableness, we

consider the totality of the circumstances and whether the sentence achieves the

purposes stated in § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219 (11th

Cir. 2009).

      The district court abuses its discretion if it: (i) fails to consider relevant

factors that were due significant weight, (ii) gives an improper or irrelevant factor

significant weight, or (iii) commits a clear error of judgment by balancing the

proper factors in an unreasonable manner. United States v. Irey, 612 F.3d 1160,

1189 (11th Cir. 2010) (en banc). However, when the district court imposes a

sentence that is within the guideline range, we will expect, but not presume, that it

is reasonable. Sarras, 575 F.3d at 1219. Likewise, a sentence that is well below

the statutory maximum sentence is likely to be reasonable. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

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      In determining an appropriate term of incarceration, 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). As such, the district

court need not specifically address every mitigating factor raised by the defendant

for the sentence to be substantively reasonable. United States v. Snipes, 611 F.3d

855, 873 (11th Cir. 2010). We will not vacate the sentence merely because another

sentence might be more appropriate. Instead, we will find the sentence to be

substantively unreasonable only if the district court committed a clear error of

judgment. Irey, 612 F.3d at 1190-91.

      Ronga’s guideline range for imprisonment was calculated as 121-151

months, and he does not challenge that calculation on appeal. He argued for

numerous variances during the sentencing hearing. Ronga first argued for

variances based on aberrant behavior, and that his behavior was outside the

heartland of cases upon which the relevant guideline sections are based. Both

variances were denied. He then attempted to argue that the court needed to avoid

unwarranted sentencing disparities, noting a few cases for comparison.

      While Ronga sought a variance below the non-binding guidelines range, the

United States sought the statutory maximum sentence. After carefully considering

the parties’ arguments, the district court found that the sentence advocated by the




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government was not warranted when all the statutory sentencing factors were

considered. Instead, it stated:

      The Court need not sentence [the defendant] to the maximum term
      allowed by law in order to fashion a sentence that is just punishment
      for the offense, reflects the seriousness of the offense, promotes
      respect for the law, and also affords adequate deterrence. I do find for
      those reasons that a variance is appropriate.

Rejecting a guidelines sentence, the court varied downward and imposed a

sentence of 72 months’ incarceration.

      Ronga is unable to demonstrate that his sentence is substantively

unreasonable in light of the district court’s consideration of all the evidence

presented and in light of the § 3553(a) factors. The district court heard arguments

regarding the possible grounds for departure, considered Ronga’s guideline range

and all relevant § 3553(a) factors. It then imposed a 72-month total sentence.

Ronga’s term of incarceration is substantially below the properly calculated

guideline range of 121-151 months. It cannot be said to be unreasonably severe

under the facts presented. See Sarras, 575 F.3d at 1219.

      Moreover, the district court did not commit a clear error of judgment in

weighing the § 3553(a) factors. Irey, 612 F.3d at 1190-91. Ronga’s primary

contention is that the district court balanced the § 3553(a) factors but failed to

adequately consider the circumstances of the offense and the need to avoid

unwarranted sentencing disparities among defendants convicted of similar conduct.


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However, it is clear that the district court considered the nature of the offenses in

explaining that Ronga betrayed the public’s trust and demonstrated a flagrant

disregard for the law when he committed the crimes of which he was convicted.

Likewise, the court expressly considered the need to avoid unwarranted sentencing

disparities in fashioning a total sentence that was reasonable under the

circumstances.

      Ronga cites five cases for comparison in which other law enforcement

officers arguably engaged in more egregious conduct, but received lighter

sentences. Each case, however, is distinguishable on its facts. Further, §

3553(a)(6) does not create a metric whereby a sentencing court must compare

certain selected sentences imposed by other judges within the district or circuit. As

other circuits have recognized, § 3553(a)(6) is focused primarily on nationwide

sentencing disparities. See United States v. Simmons, 501 F.3d 620, 623-24 (6th

Cir. 2007) (listing cases). The focus on nationwide disparities does not mean, of

course, that sentences imposed in this circuit are subject to a “national grade

curve.” United States v. Hill. 643 F.3d 807, 885 (11th Cir. 2011). National

uniformity is considered by the United States Sentencing Commission in

establishing guidelines ranges, and § 3553(a)(6) serves as a reminder of that goal

of uniformity.




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      Further, it was not an abuse of discretion for the district court to place

greater emphasis on the serious nature of the offense and Ronga’s personal history

rather than the defendant’s hand-picked cases in which other defendants arguably

received more lenient sentences. The weight given to the particular § 3553(a)

factor was within the discretion of the trial court. Clay, 483 F.3d at 743. Under

the circumstances presented, we conclude that the district court did not abuse its

discretion by imposing a 72-month term of incarceration.

                               IV.   CONCLUSION

      The Defendant’s conviction and sentence are AFFIRMED.




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