         Case: 15-12002   Date Filed: 06/02/2016   Page: 1 of 16


                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-12002
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:14-cr-00117-SPC-DNF-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,


                                versus


JAMES ECKFORD KENNEDY,

                                                        Defendant-Appellant.

                     ________________________

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

                            (June 2, 2016)
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Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      James Eckford Kennedy appeals his 60-month sentence, imposed above the

Sentencing Guidelines range, after pleading guilty to one count of possession with

intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C). On appeal, Kennedy argues that the district court erred in denying his

motion to disclose the probation officer’s confidential sentencing recommendation.

Kennedy also argues that his sentence was procedurally and substantively

unreasonable. After careful consideration, we affirm.

                                I. BACKGROUND

      Kennedy pled guilty to possession with intent to distribute cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), after he sold $350 worth of

crack cocaine to a confidential informant. Prior to sentencing, a probation officer

prepared a presentence investigation report (“PSI”). The PSI assigned Kennedy a

criminal history category of VI based on Kennedy’s extensive criminal history,

which included convictions for robbery, possession of cocaine with intent to sell,

trafficking cocaine, and other lesser convictions. Kennedy’s criminal record also

revealed that he had violated probation on numerous occasions. Based on

Kennedy’s criminal history category of VI and his adjusted total offense level of




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ten, the probation officer calculated a Sentencing Guidelines range of 24 to 30

months’ imprisonment. The statutory maximum was 20 years.

      Prior to sentencing, Kennedy filed a motion for disclosure of the probation

officer’s confidential sentencing recommendation, which the district court denied.

He also filed a sentencing memorandum that argued for a downward variance or,

in the alternative, a downward departure from the guidelines range.

      At his sentencing hearing, Kennedy acknowledged that his guidelines range

had been correctly calculated, but continued to request a downward departure or

variance from that range, arguing that a criminal history category of VI

overrepresented his criminal background. He presented the testimony of two

witnesses in support of his request. The government argued in response that an

upward variance or departure was appropriate given Kennedy’s numerous

convictions and probation violations.

      The district court proceeded to sentence Kennedy. In doing so, it

“consider[ed] all of [the] things before it, [including] the presentence report, the

memorandums that counsel . . . filed, the testimony of the witnesses, any evidence

[that had] been presented to the Court, and the arguments of counsel.” Sentencing

Hr’g Tr. at 59 (Doc. 60).1 The court also observed that several of Kennedy’s

convictions had not contributed points to the calculation of his criminal history

      1
          “Doc.” refers to the docket entry in the district court record in this case.

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category. The district court then denied Kennedy’s request for a downward

departure because it “believe[d] that the probation officer . . . correctly scored

[Kennedy’s] prior criminal history . . . based upon how it should be scored.” Id. at

60-61.

       After considering the 18 U.S.C. § 3553(a) factors,2 the court also denied

Kennedy’s request for a downward variance and elected instead to impose an

upward variance from the guidelines range. Id. at 61. The court noted that

Kennedy had exhibited “a history of over 20 years of committing criminal

offenses, not only misdemeanors but certainly felonies” and a “history of

violations of probation.” Id. at 61-62. This conduct, the court reasoned,

demonstrated “a history of committing offenses and a history of not abiding by the

laws.” Id. at 62. The court concluded that an upward variance was appropriate

because “of the nature and characteristics [Kennedy] exhibit[ed], the circumstances

of the offense, the need for [the] sentence to reflect the seriousness of the offense,

and [the need] to promote respect for the law, which at [that] point [the court did]

not see that [Kennedy had].” Id. at 62-63. The district court also stated its belief


       2
         Under 18 U.S.C. § 3553(a), district courts must consider certain factors when
sentencing a defendant. These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sentence imposed to
accomplish certain aims, such as reflect the seriousness of the offense, afford adequate
deterrence, and protect the public; (3) the kinds of sentences available; (4) the applicable
guidelines range; (5) any pertinent Sentencing Commission policy statement; (6) the need to
avoid unwarranted sentence disparities among defendants; and (7) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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that an upward variance was necessary to “adequately deter [Kennedy] from future

criminal conduct and to protect the public from future crimes committed by [him].”

Id. at 63. The court sentenced Kennedy to 60 months’ imprisonment. Kennedy

objected to the court’s denial of his motion for disclosure of the probation officer’s

confidential sentencing recommendation and to his sentence. This is his appeal.

                                 II. DISCUSSION

A.     Motion to Disclose Confidential Sentencing Recommendation

      Kennedy argues that the district court should have provided him with the

probation officer’s confidential sentencing recommendation, and he infers from the

district court’s denial of his request that he was sentenced based on secret

information. He contends that the court’s failure to disclose the recommendation

violated his due process rights and rendered his counsel ineffective at sentencing.

      We review constitutional sentencing issues de novo. United States v. Harris,

741 F.3d 1245, 1248 (11th Cir. 2014). PSIs are prepared by probation officers to

aid the court in sentencing the defendant. They contain a defendant’s personal

information, criminal history, the circumstances of his or her offense, and

recommendations as to sentence. See Fed. R. Crim. P. 32(d). Although the

defendant must be provided with a copy of the PSI prior to sentencing, “[b]y local

rule or by order in a case, the court may direct the probation officer not to disclose

to anyone other than the court the officer’s recommendation on the sentence.” Id.


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32(e)(2)-(3). The Middle District of Florida, where Kennedy was sentenced, has

such a local rule, which “directs the probation officer not to disclose the probation

officer’s recommendation, if any, on the sentence.” M. D. Fla. R. 4.12(f).

Notably, however, while a PSI may exclude a limited amount of information, Fed.

R. Crim. P. 32(d)(3), the district court must provide to the defendant a reasonable

opportunity to comment on any excluded information that it will rely on in

sentencing. Id. (32)(i)(1)(B).

      We find no error in the district court’s denial of Kennedy’s request for the

probation officer’s confidential sentencing recommendation. The Middle District

of Florida’s local rule clearly provides that the confidential recommendation

should not be disclosed. To the extent Kennedy argues that he was sentenced

based on facts not discussed in either his PSI or at his sentencing hearing, he

identifies none, and we see no basis for such a conclusion other than mere

speculation. The district court described all of the sources of information it

considered when sentencing Kennedy. Those sources included “the presentence

report, the memorandums that counsel has filed, the testimony of the witnesses,

any evidence that’s been presented to the Court, and the arguments of counsel.”

Sentencing Hr’g Tr. at 59 (Doc. 60). Moreover, the explanation the court provided

for the sentence imposed was based entirely on facts contained in the PSI and

discussed at the sentencing hearing.


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       Although Federal Rule of Criminal Procedure 32(e) gives the district court

discretion to order disclosure of the sentencing recommendation made confidential

by the court’s local rule, the court had no obligation to do so. See Fed. R. Crim. P.

32(e)(3). The record reveals no reason to suspect that the confidential

recommendation contained any facts beyond those in the PSI. Indeed, Kennedy

fails even to suggest any such facts. We conclude the district court committed no

error in denying his request for disclosure of the probation officer’s confidential

sentencing recommendation, and we find no denial of due process or ineffective

assistance of counsel arising out of this issue.

B.     Reasonableness of Kennedy’s Sentence

       We generally review sentencing decisions for an abuse of discretion. 3

United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir. 2010). This

standard reflects the due deference we give to district courts because they have an

“institutional advantage in making sentencing determinations.” Id. at 735 (internal

quotation marks omitted). Thus, “[w]e may vacate a sentence only if we are left

with the definite and firm conviction that the district court committed a clear error

of judgment.” Id. (internal quotation marks omitted).



       3
          There is an exception to this general principle, where, as here, a defendant contends that
the district court failed to adequately explain the basis of the sentence imposed. In such
circumstances, we conduct a de novo review of the sufficiency of the district court’s explanation,
even if the defendant did not object before the district judge. United States v. Bonilla, 463 F.3d
1176, 1181 (11th Cir. 2006).
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      Pursuant to 18 U.S.C. § 3553(a), the district court must impose a sentence

sufficient but not greater than necessary to comply with the purposes set forth in

§ 3553(a)(2), including imposing a sentence that reflects the seriousness of the

offense, promoting respect for the law, deterring criminal conduct, and protecting

the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). The 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. Id. § 3553(a)(1), (3)-(7).

      Reviewing the reasonableness of a sentence is a two-step process. “We look

first at whether the district court committed any significant procedural error and

then at whether the sentence is substantively reasonable under the totality of the

circumstances.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The party challenging the sentence bears the burden of showing it is unreasonable

in the light of the record and the relevant factors. Id. Kennedy contends that his

sentence is both procedurally and substantively unreasonable. We address these

arguments in turn.




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          1. Procedural Reasonableness

      “A sentence may be procedurally unreasonable if the district court

improperly calculates the Guidelines range, treats the Guidelines as mandatory

rather than advisory, fails to consider the appropriate statutory factors, selects a

sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).

Kennedy contends that his sentence is procedurally unreasonable in three primary

respects: (1) the district court failed to adequately explain the basis of the sentence,

(2) the court failed to adequately consider his arguments in favor of a mitigated

sentence, and (3) the court imposed an upward variance based primarily on

Kennedy’s criminal history even though it had previously determined that the

guidelines range adequately accounted for that history. We find these arguments

unpersuasive.

      Kennedy is correct that a district court must explain its reasons for imposing

a particular sentence. Rita v. United States, 551 U.S. 338, 356 (2007); 18 U.S.C.

§ 3553(c). This explanation, however, need not be exhaustive. It “must

adequately explain the chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S.

38, 50 (2007). An acknowledgement by the court that it has considered the

defendant’s arguments and the factors listed in § 3553(a) usually will satisfy this


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requirement. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007). “The

district court need not state on the record that it has explicitly considered each

factor and need not discuss each factor.” Id. If, however, a district court “decides

that an outside-Guidelines sentence is warranted, [it] must consider the extent of

the deviation and ensure that the justification is sufficiently compelling to support

the degree of the variance.” Gall, 552 U.S. at 50.

      The district court’s explanation of its sentencing decision was adequate. The

court stated that it had considered Kennedy’s arguments in favor of a reduced

sentence, which Kennedy raised both in his sentencing memorandum and at his

sentencing hearing. The court also heard the statements of the witnesses Kennedy

called to testify in his favor. The court not only declared that it had considered the

§ 3553(a) factors, it stated for the record what those factors were. The court

explained that it was imposing an upward variance because Kennedy had a

demonstrated “history of over 20 years of committing criminal offenses” and that

his conduct “show[ed] a history of . . . not abiding by the laws.” Sentencing Hr’g

Tr. at 62 (Doc. 60). The court further explained that an upward variance was

appropriate “because of the nature and characteristics [Kennedy] exhibit[ed], the

circumstances of the offense, the need for [the] sentence to reflect the seriousness

of the offense, [the need] to promote respect for the law”—which the court

observed, based on his conduct, that Kennedy lacked—as well as the need “to


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adequately deter [him] from future criminal conduct and to protect the public from

future crimes committed by [him].” Id. at 62-63. This discussion sufficiently

demonstrates that the district court took the pertinent factors into account when

sentencing Kennedy and further explained why an upward variance was

appropriate.

      We reject, for the same reasons, Kennedy’s contention that the district court

failed to address his arguments in favor of a mitigated sentence. The court stated

that it had considered Kennedy’s arguments for a reduced sentence and the

testimony of his witnesses. The fact that the court was not swayed by Kennedy’s

presentation is not evidence of the court’s failure to consider it.

      Finally, Kennedy points to the district court’s decision not to apply an

upward departure as demonstrating that his criminal history could not support an

upward variance. In essence, Kennedy argues that the district court’s refusal to

apply an upward departure to his criminal history category served as an implicit

acknowledgement that his criminal history category of VI, and the resulting

guidelines range, thoroughly accounted for his criminal history. Given that the

guidelines range properly reflected his history, Kennedy reasons, the court could

not then justify an upward variance by contending that the range underrepresented

his criminal history.




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      The district court’s decision not to apply an upward departure, however, in

no way precluded it from applying an upward variance, even if the reasons

supporting the variance mirrored those supporting a departure. A district court

may rely on factors in imposing a variance that it already considered in calculating

the guidelines range. United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir.

2010). And there is no requirement that a district court impose a departure before

imposing a variance. Id. Thus, the mere fact that the court declined to impose a

departure does not necessarily make a variance inappropriate.

      Kennedy construes the district court’s election not to impose an upward

departure as implying that the court did not believe his criminal history warranted a

sentence higher than the guidelines range. But nothing in the record supports that

conclusion. Indeed, the record demonstrates that the court thought a harsher

sentence was appropriate and that it merely elected to use a variance, instead of a

departure, as the mechanism to impose a longer sentence. In declining to apply an

upward departure, the court observed that “the probation officer . . . correctly

scored [Kennedy’s] prior criminal history . . . based upon how it should be scored.”

Sentencing Hr’g Tr. at 60-61 (Doc. 60). This statement demonstrates only that the

court thought that the probation officer had correctly calculated Kennedy’s

criminal history category, not that the category or the resulting guidelines range

accurately accounted for Kennedy’s extensive prior involvement in criminal


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activity. If anything, the court’s observation that Kennedy had several convictions

that contributed “zero points” to the calculation of his criminal history category

supports the opposite conclusion. Id. at 59. We refuse to construe the district

court’s decision not to impose a departure as foreclosing it from imposing a

variance. Kennedy has failed to demonstrate that his sentence is procedurally

unreasonable.

          2. Substantive Reasonableness

      Having determined that the district court’s sentencing decision was

procedurally sound, we next consider the substantive reasonableness of Kennedy’s

sentence. A district court abuses its discretion and imposes a substantively

unreasonable sentence if it “(1) fails to afford consideration to relevant [§ 3553(a)]

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. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.

2015) (internal quotation marks omitted). “The weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court

. . . .” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation

marks omitted). “[I]t is only the rare sentence that will be substantively

unreasonable.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks




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omitted). That a sentence is well below the statutory maximum is an indicator of

its reasonableness. See Gonzalez, 550 F.3d at 1324.

       Kennedy takes issue with the district court’s application of an upward

variance, arguing that his sentence caused unwarranted sentencing disparities. 4

Kennedy contends that upward variances are extraordinarily rare, and that nothing

in the record indicates that his conduct was so out-of-the-ordinary as to justify such

a harsh sentence. But Kennedy bears the burden of demonstrating that his sentence

is unreasonable, Tome, 611 F.3d at 1378, and he has failed to do so.

       District courts must strive to avoid unwarranted sentencing disparities. See

18 U.S.C. § 3553(a)(6). But in order to prove the existence of an unwarranted

sentencing disparity, a defendant must demonstrate that his or her sentence is

different from those of similarly-situated defendants. See United States v.

Docampo, 573 F.3d 1091, 1101-02 (11th Cir. 2009). Kennedy fails to identify

even a single similarly-situated defendant who received a sentence different than

he did. He cites only to general statistics indicating that courts impose variances in

a minority of cases. But these generic statistics are insufficient to establish that

Kennedy’s sentence is unreasonable. See United States v. Campbell, 491 F.3d

       4
         Kennedy also argues that his sentence is substantively unreasonable for many of the
same reasons he argues that his sentence is procedurally unreasonable. For example, Kennedy
contends the district court imposed a substantively unreasonable sentence when it applied an
upward variance despite having declined to impose an upward departure. He also argues that his
sentence is substantively unreasonable because the court failed to consider his arguments in
favor of a mitigated sentence. We addressed these arguments in the preceding section and reject
them for the reasons previously discussed.
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1306, 1317 (11th Cir. 2007) (“[T]he statistics [the defendant] cites are bare

numbers without context and, therefore, do not persuade us that his sentences are

unreasonable.”). Absent any evidence of unwarranted sentencing disparities, we

have no difficulty concluding that Kennedy’s sentence is not substantively

unreasonable.

      Nor can we identify any other reason to suspect that the district court

committed a clear error of judgment in sentencing Kennedy, even if his sentence

was above the guidelines range. The district court acted within its discretion in

concluding that Kennedy had demonstrated a consistent inability to conform his

conduct to the dictates of the law and that, as a result, a harsher sentence was

appropriate. Kennedy has been convicted of a copious number of crimes, many of

which are felonies and many of which involve the same drug-related conduct that

got him into trouble here. He has also violated probation on numerous occasions.

And while we recognize that Kennedy’s guidelines range may take much of that

conduct into account, as the district court observed, many of Kennedy’s

convictions did not factor into the calculation of his criminal history category. We

note also that Kennedy’s sentence of 60 months’ imprisonment is well below the

statutory maximum of 20 years, which is a “consideration favoring its

reasonableness.” Rosales-Bruno, 789 F.3d at 1257.




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      In the light of these facts, we cannot conclude that the district court abused

its discretion in deciding that a significant upward variance from the guidelines

range was warranted. “[T]he sentence was within the outer bounds of the district

court’s substantial sentencing discretion—in the ballpark of permissible

outcomes.” Id. (internal quotation marks omitted).

                               III. CONCLUSION

      We conclude that Kennedy has failed to demonstrate that the district court

erred in denying his motion to disclose the probation officer’s confidential

sentencing recommendation. We similarly conclude that Kennedy has failed to

show that his sentence is procedurally or substantively unreasonable. We therefore

affirm the sentence the district court imposed.

      AFFIRMED.




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