              Case: 18-10850     Date Filed: 10/19/2018   Page: 1 of 7


                                                                [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 18-10850
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 4:17-cr-00336-LSC-JHE-1


UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,

                                       versus

DEQUAVIOUS MARKELL JONES,

                                                                    Defendant-Appellant.

                            ________________________

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

                                 (October 19, 2018)

Before WILSON, JILL PRYOR, AND JULIE CARNES, Circuit Judges.

PER CURIAM:

      Dequavious Jones appeals his 60-month sentence, imposed above the high

end of the 21 to 27 month guideline range and the government’s recommendation

of 13 months, after pleading guilty to three counts of distributing heroin under 21
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U.S.C. § 841(a)(1), (b)(1)(C). On appeal, Jones argues that his sentence was

procedurally unreasonable because the district court did not consider the 18 U.S.C.

§ 3553(a) factors and did not adequately explain his sentence. Jones also argues

that his sentence was substantively unreasonable because the district court gave too

much weight to his criminal history. According to Jones, the substantial upward

modification of his sentence was based entirely on Jones’s criminal history,

without consideration of other factors under 18 U.S.C. § 3553(a).

                                           I.

      We review challenges to a sentence’s procedural reasonableness for plain

error if the defendant did not properly object. United States v. Ramirez-Flores,

743 F.3d 816, 821 (11th Cir. 2014). The defendant must raise an objection that

is sufficient to inform the district court and the opposing party of the particular

grounds that may later be appealed. United States v. Straub, 508 F.3d 1003, 1011

(11th Cir. 2007). For example, an objection to the “substantive and procedural

reasonableness” of a sentence was not enough to preserve a defendant’s challenge

to the special conditions of his supervised release on appeal. United States v.

Carpenter, 803 F.3d 1224, 1237–38 (11th Cir. 2015). Under the plain error

standard a defendant must show that: 1) the district court erred, 2) the error was

plain, 3) the error affected his substantial rights, and 4) the error seriously affected

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the fairness of the judicial proceedings. Ramirez-Flores, 743 F.3d at 822. We

have stated, however, that we will review de novo an argument that a district court

failed to comply with 18 U.S.C. § 3553(c)(2) by not explaining the reasons for a

sentence outside the guideline range. United States v. Parks, 823 F.3d 990, 996

(11th Cir. 2016). The party challenging the sentence bears the burden of showing

that the sentence is unreasonable. United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). 1

       When reviewing a sentence for reasonableness, we first look to whether the

district court committed any significant procedural errors. Gall v. United States,

552 U.S. 38, 51 (2007). Procedural errors include failing to consider the § 3553(a)

factors and failing to adequately explain the chosen sentence. Id.

       The district court need not state that it has evaluated each § 3553(a) factor

individually. United States v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006).

It is sufficient for the district court to acknowledge that it has considered the

§ 3553(a) factors. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007).

       A court may be brief in explaining a sentence, and may derive substance

from the context of the record, defendant’s history and characteristics, and parties’

1
  It is unlikely that Jones’s general objection to the reasonableness of his sentence was
sufficiently specific to preserve his procedural reasonableness challenge for appeal, and thus this
Court should review for plain error. See Carpenter, 803 F.3d at 1237–38. Even if Jones’s
argument can be construed as a challenge under § 3353(c)(2) that is reviewed de novo, the result
is the same.
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arguments. Rita v. United States, 551 U.S. 338, 356–58 (2007). Generally, the

further a sentence falls outside of the guideline range, the more compelling a

court’s explanation must be. Gall, 552 U.S. at 47, 50. An “extraordinary”

justification is not required, however, for a sentence outside of the range. Id. at 47.

      The district court’s statements at sentencing demonstrated that it considered

§ 3553(a) factors. Ortiz-Delgado, 451 F.3d at 758. The district court’s

explanation, while brief, was adequate because it relied on the context from the

record, Jones’s history and characteristics, and the parties’ arguments. See Rita,

551 U.S. at 356–58. The district court explained multiple times that it was

imposing its sentence in large part due to Jones’s extensive criminal record, which

included eight adult convictions, and drug-dealing history—including his recent

offense while on pretrial release—indicating to the court that Jones was unlikely to

follow the law in the future.

                                               II.

      We review the reasonableness of a sentence under the abuse-of-discretion

standard, whether the sentence is within or outside of the guideline range. Gall,

552 U.S. at 41. We uphold a sentence so long as it does not reflect a “clear error of

judgment,” even if we would have imposed a different sentence had we been in the

district court’s shoes. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)


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(quoting United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)).

      The district court must impose a sentence that is “sufficient, but not greater

than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),

which include promoting respect for the law, providing a just punishment for the

offense, affording adequate deterrence, and protecting the public. 18 U.S.C. §

3553(a). The district court must also consider the “nature and circumstances” of

the offense and the “history and characteristics” of the defendant. Id.

      We consider the totality of the circumstances when determining whether the

district court’s sentence is substantively reasonable. Gall, 552 U.S. at 51. The fact

that a sentence falls well below the statutory maximum is one indicator of a

reasonable sentence. United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.

2016). A district court may abuse its discretion by 1) failing to adequately

consider factors that were due significant weight, 2) giving significant weight to an

improper or irrelevant factor, or 3) committing a clear error of judgment when

weighing the factors. United States v. Kuhlman, 711 F.3d 1321, 1326–27 (11th

Cir. 2013). A “clear error of judgment” includes instances where the district court

considered all relevant factors but balanced them unreasonably. Id.

      “Departure” is a term of art which refers “only to non-Guidelines sentences

imposed under the framework set out in the Guidelines.” Irizarry v. United States,


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553 U.S. 708, 714 (2008). A variance, by contrast, is a modification of the

sentence that is based on the § 3553(a) factors and is outside of the guidelines

framework. United States v. Hayes, 762 F.3d 1300, 1321 (11th Cir. 2014). When

determining whether a district court has applied a departure or a variance, we look

to whether the district court cited a specific guidelines provision and whether it

stated that a sentence within the guideline range would be inadequate. United

States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2014). 2

       The district court is required to consider the § 3553(a) factors in fashioning a

reasonable sentence and may use one or more factors as the basis for a variance.

Hayes, 762 F.3d at 1321. Variances may be based on conduct already considered

in the guideline range calculation. United States v. Moran, 778 F.3d 942, 983

(11th Cir. 2015). The district court must consider the § 3553(a) factors even if it

has already ruled on a § 5K1.1 substantial assistance motion. United States v.

Martin, 455 F.3d 1227, 1236 (11th Cir. 2006).

       The weight given to each § 3553(a) factor is a matter within the district

court’s sound discretion. Williams, 526 F.3d at 1322. Although unjustified

reliance on a single § 3553(a) factor may be a “symptom” of unreasonableness,

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008), a court may attach
2
  The district court’s modification of Jones’s sentence here was a variance—the court stated that
the guideline range was inappropriate, never cited to a specific departure provision with respect
to the increase, and referred to the sentence as a variance multiple times. See id.
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substantially more weight to one factor over others, United States v. Shaw, 560

F.3d 1230, 1237–38 (11th Cir. 2009). A defendant’s criminal history fits

“squarely” into the § 3553(a) category that requires district courts to consider the

defendant’s the history and characteristics. Williams, 526 F.3d at 1324. We have

stated that we regularly affirm major upward variances from the guideline range

based on a defendant’s significant criminal history. See United States v. Rosales-

Bruno, 789 F.3d 1249, 1263 (11th Cir. 2011) (collecting cases).

      In varying upward, the district court was within its discretion to give great

weight to Jones’s criminal history and repeated drug-dealing, Rosales-Bruno, 789

F.3d. at 1261–63, even if that history had already been taken into account by the

guidelines, Moran, 778 F.3d at 983. The resulting 60-month sentence reflected

this history in addition to other considerations under § 3553(a), including

deterrence, protection of the public, and the need to promote respect for the law.

The sentence also fell below the 240-month statutory maximum. See United States

v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016). This sentence did not constitute

a “clear error of judgment.” See United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (citations omitted). Accordingly, we affirm.

      AFFIRMED.




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