            Case: 17-12036    Date Filed: 12/13/2017   Page: 1 of 7


                                                           [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12036
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-20784-MGC-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

BERNARD DAVID DIXON,

                                                           Defendant-Appellant.

                       ________________________

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

                             (December 13, 2017)

Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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       After Bernard Dixon pleaded guilty to one count of conspiracy to commit

bank robbery and one count of bank robbery he was convicted and sentenced to

146 months imprisonment. He now challenges that sentence as substantively

unreasonable.

       In September 2016 Dixon and Joy Braxton robbed a bank together. The pair

fled and were captured by police a few blocks away from the bank. They were

arrested and indicted for conspiring to commit bank robbery, in violation of 18

U.S.C. § 371, and for the substantive charge of bank robbery, in violation of 18

U.S.C. § 2113(a). They both pleaded guilty. 1

       Based on earlier convictions of assault with a deadly weapon and possession

with intent to sell cocaine, Dixon qualified as a career offender, and his offense

level was increased to 32. U.S.S.G. §§ 4B1.1(a), (b)(3). Braxton also qualified as

a career offender based on past convictions for aggravated assault with a deadly

weapon and felony battery, so her offense level was also increased to 32. Id. Both

defendants received a 3 level reduction for their acceptance of responsibility and

cooperation with authorities, U.S.S.G. § 3E1.1, giving each a total offense level of

29. As career offenders, Dixon and Braxton’s criminal history category was

increased from III to VI, giving them an identical guidelines range of 151 to 188

months imprisonment.

       1
          Braxton’s conspiracy to commit bank robbery charge was dismissed in exchange for her
guilty plea.
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       The district court held separate sentencing hearings for Dixon and Braxton.2

At both hearings, the district court stated that it considered the suggested

guidelines range, filings by counsel, and all of the § 3553 factors before imposing

Dixon and Braxton’s sentences. And for both of them the court explained that it

would vary from the guidelines because their classification as “career offenders”

under U.S.S.G. § 4B1.1 overrepresented their criminal histories.

       For Dixon, the district court determined that his “advisory guideline range

slightly over-represents his criminal culpability,” although “not by much.” For that

reason, the court granted him a variance of five months from the low end of his

advisory guidelines range and sentenced him to 146 months imprisonment.

       For Braxton, the district court explained that her serious history of mental

illness has “driven most of her contacts with the criminal justice system.” So much

so that her designation as a career offender did not “realistically” reflect her

criminal history (which largely consisted of prostitution, drug possession,

shoplifting, and disorderly conduct charges). Braxton’s Presentence Investigation

Report also showed a long and well-documented history of hospitalizations and

medications beginning in childhood to treat bipolar disorder and schizophrenia. As




       2
        Although the transcript of Braxton’s hearing was not made part of the record on appeal,
we may take judicial notice of the records of the district court. United States v. Rey, 811 F.2d
1453, 1457 n.5 (11th Cir. 1987).
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a result, the district court disregarded Braxton’s classification as a career offender

and varied downward to sentence her to 45 months imprisonment. 3

       Dixon contends that his sentence is substantively unreasonable because he

was not sentenced similarly to Braxton, his codefendant. He argues that the district

court was required by 18 U.S.C. § 3553(a)(6) to avoid an unwarranted disparity

between his and Braxton’s sentence, and he claims that the district court should

have given him a greater variance to bring his sentence more in line with hers.

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

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). And 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

imposing 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). The fact that we might have imposed a different sentence doesn’t

warrant reversal. Shaw, 560 F.3d at 1238. The burden falls on the party

challenging the sentence to prove it was unreasonable. United States v. Cavallo,

790 F.3d 1202, 1236 (11th Cir. 2015). Here, that’s Dixon.


       3
         Although the district court used the term “depart” to justify Braxton’s sentence, it is
properly considered a variance. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006)
(holding that a district court which utilizes a properly calculated guidelines range and then
considers the adequacy of that range in light of the § 3553(a) factors constitutes a variance and
not a departure, despite the specific terminology employed), aff’d, 553 U.S. 708, 128 S. Ct. 2198
(2008).
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      When imposing a sentence, a district court must weigh the need to “avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). But that’s not all it

considers. It must also weigh, among other factors, the nature and circumstances

of the offense and the defendant’s history and characteristics. Id. § 3553(a)(1).

Although the sentencing court must consider all of the § 3553(a) factors in

imposing a sentence, it may attach greater weight to one or more of them over the

others. Shaw, 560 F.3d at 1237.

      Dixon has not shown that he and Braxton were similarly situated at

sentencing. A “well-founded claim of disparity . . . assumes that apples are being

compared to apples.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.

2009) (citation omitted). But a disparity in sentences between codefendants in a

single case is “generally not an appropriate basis for relief on appeal.” Cavallo,

790 F.3d at 1237. It isn’t here. According to their PSRs, Dixon and Braxton both

had prior convictions of battery and assault with a deadly weapon. But Dixon also

had prior convictions for burglary, robbery by force, and robbery with a firearm or

deadly weapon. Dixon’s longer and more violent criminal history, coupled with

Braxton’s documented struggle with mental illness, distinguishes the two for

sentencing purposes. See 18 U.S.C. § 3553(a)(6) (stating the district court must

consider avoiding “disparities among defendants with similar records . . . .”)


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(emphasis added). No “unwarranted” disparity can exist when defendants are not

similarly situated. See Docampo, 573 F.3d at 1102.

      The district court acted within its discretion to grant both Dixon and Braxton

a variance from their guidelines range and to tailor it to reflect their individual

history and characteristics under § 3553(a)(1). See Shaw, 560 F.3d at 1238 (noting

district courts are given “considerable discretion in deciding whether the § 3553(a)

factors justify a variance” and the extent that one is appropriate) (citation and

quotation marks omitted). The record shows that the district court considered

Dixon’s role in the crime and his individual criminal history and characteristics —

along with the other § 3553(a) factors — in deciding how much to vary from the

applicable guidelines range. By correctly calculating and considering the

appropriate guidelines range, the district court “necessarily gave significant weight

and consideration to the need to avoid unwarranted disparities.” Gall v. United

States, 552 U.S. 38, 54, 128 S. Ct. 586, 599 (2007).

      We are not persuaded that Dixon’s sentence, which is below his guidelines

range, is unreasonable simply because the district court determined that a lower

sentence was appropriate for Braxton. Braxton’s sentence was based on her less

severe criminal record and her personal characteristics, including her documented

struggle with mental illness. Those are factors that the district court is entitled to

consider under § 3553(a). See United States v. Williams, 526 F.3d 1312, 1324


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(11th Cir. 2008) (holding that, a defendant’s criminal history fits squarely into the

history and characteristics factor of § 3553(a)(1) and could properly be considered

by the court); see also United States v. McBride, 511 F.3d 1293, 1298 (11th Cir.

2007) (affirming a downward variance from the guidelines range of 151 to 188

months in prison to 84 months in prison based on district court’s finding that

defendant’s personal history of abuse and abandonment warranted consideration

under § 3553(a)).

      “[E]very case is a unique study in the human failings that sometimes

mitigate, [and] sometimes magnify, the crime and the punishment to ensue.”

Shaw, 560 F.3d at 1237–38 (alterations and quotation marks omitted). Here, the

district court simply determined that Braxton’s individual circumstances and

history mitigated her crime more than Dixon’s did his. See United States v.

Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016) (noting the district court’s

“considerable discretion” in deciding the “extent of a . . . variance”). Whatever

sentence we might have imposed, we are not left with a “definite and firm

conviction” that Dixon’s 146 month sentence is outside the range of reasonable

sentences as dictated by the facts of this case. See Irey, 612 F.3d at 1190.

      AFFIRMED.




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