          Case: 17-13962   Date Filed: 01/24/2019   Page: 1 of 7


                                                    [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-13962
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:16-cr-00015-MW-GRJ-2




UNITED STATES OF AMERICA,

                                            Plaintiff – Appellee,


                                 versus


LARRY BURSTEIN,

                                            Defendant – Appellant.

                     ________________________

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

                           (January 24, 2019)
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Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:

      Larry Burstein appeals his 48-month sentence, which was imposed after he

pled guilty to one count of conspiring to distribute codeine in violation of

21 U.S.C. § 841(a)(1) and § 846. Burstein argues that his sentence was

substantively unreasonable. Because the district court did not abuse its discretion

in weighing the § 3553(a) sentencing factors, we affirm.

                              I.      BACKGROUND

      From 2007 through 2014, Burstein ran an internet pharmacy website that

sold controlled substances, including codeine, to individuals without requiring

them to submit a valid prescription. Between 2009 and 2014, Burstein sold more

than 148,000 codeine pills containing more than 2,000,000 milligrams of codeine,

generating more than $7 million in sales.

      Burstein was charged with various crimes based on his role in operating the

website, including one count of conspiracy to distribute a controlled substance.

Burstein pled guilty to the conspiracy count in exchange for the government

dismissing the other charges against him.

      Prior to the sentencing, the probation office prepared a presentence

investigation report (“PSR”). Based on the quantity of codeine involved, the PSR


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calculated Burstein’s base offense level of 24. The PSR then applied a 2-level

enhancement for distributing a controlled substance through mass-marketing by

means of an interactive computer service and a 3-level reduction for acceptance of

responsibility, yielding a total offense level of 23. The PSR found that this total

offense level and Burstein’s criminal history category of I yielded a recommended

range under the Sentencing Guidelines of 46 to 57 months’ imprisonment.

      At sentencing, the district court adopted the PSR’s guidelines calculation.

Burstein requested a below-guideline sentence of 18 to 24 months’ imprisonment,

arguing that such a sentence was appropriate given his acceptance of

responsibility, age, health condition, and indigence. He submitted to the court

letters attesting to his good character and charitable works as well as medical

records documenting his poor health.

      Although the government did not request that the district court impose a

specific sentence, it argued that a more severe sentence was needed to deter

Burstein and others from committing similar crimes. The government pointed out

that Burstein ran a significant drug enterprise. The government emphasized that

codeine was an opiate and there was a strong need to deter the selling of opiates

through the internet. Regarding Burstein’s arguments about his good character, the




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government did not dispute that Burstein gave some money to charity but pointed

out he wasted a significant portion of the illegally obtained money.

      In imposing a sentence, the district court explained that it considered both

the mitigating and aggravating factors in the case. The mitigating factors identified

by the district court included: Burstein’s advanced age, medical condition, and

good works. Regarding aggravating factors, the district court explained that the

“criminal enterprise was vast in scope” and resulted in the distribution of nearly

150,000 pills of a “highly addictive drug.” Doc. 160 at 35. 1 The district court

noted that the distribution of opioids harmed individuals and communities. The

court emphasized that this was not a “simple case” with a “limited amount of

distribution for a limited period of time and a limited quantity.” Id.

      After considering the mitigating and aggravating factors, the district court

imposed a 48-month sentence, which was within the guidelines range. The court

explained that if it were not for the mitigating factors, the arguments of Burstein’s

lawyers, and the letters Burstein had submitted, the court would have “seriously

consider[ed] an above-guideline sentence.” Id. at 36. This is Burstein’s appeal.




      1
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.
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                                     II.    DISCUSSION

       On appeal, Burstein challenges the substantive reasonableness of his

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

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district

court abuses its discretion when it (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. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc) (internal quotation marks omitted). The party challenging the sentence bears

the burden of showing it is unreasonable. United States v. Tome, 611 F.3d. 1371,

1378 (11th Cir. 2010).

       When reviewing a sentence for substantive reasonableness, we examine the

totality of the circumstances, including “whether the statutory factors in § 3553(a)

support the sentence in question.” 2 United States v. Gonzalez, 550 F.3d 1319,


       2
          Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These
purposes include the need to: reflect the seriousness of the offense; promote respect for the law;
provide just punishment; deter criminal conduct; protect the public from the defendant’s future
criminal conduct; and effectively provide the defendant with educational or vocational training,
medical care, or other correctional treatment. 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).
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1324 (11th Cir. 2008). “We will not second guess the weight (or lack thereof) that

the judge accorded to a given factor under § 3553(a), as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.”

United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (alterations adopted)

(internal quotation marks omitted). We may vacate a sentence only if we firmly

believe 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.” Irey, 612 F.3d at 1190 (internal

quotation marks omitted). We may not set aside a sentence “merely because we

would have decided that another one is more appropriate.” Id. at 1191. “Although

we do not automatically presume a sentence within the guidelines range is

reasonable, we ordinarily expect a sentence within the Guidelines range to be

reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration

adopted) (internal quotation marks omitted).

       Burstein argues that in weighing the § 3553(a) factors, the district court

failed to give proper weight to mitigating factors, including his status as a first-

time offender,3 his advanced age, his health issues, and that he donated much of


       3
         We note that the record does not support Burstein’s claim that he was a “true” first time
offender who had no “prior (substantial) arrests.” Appellant’s Br. at 30. It’s true that Burstein
was assigned no criminal history points. But he previously pled guilty to possession of listed
chemicals with intent to manufacture methamphetamine and served 21 months in a federal
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the money he received to charity. He also contends that the district court should

have imposed a sentence of probation or home detention. We begin by observing

that Burstein’s sentence was far below the 240-month statutory maximum and

within the guidelines range. Although we do not presume that a sentence within

the guidelines range is reasonable, we ordinarily expect it to be reasonable. See

Hunt, 526 F.3d at 746. After considering the facts of the case, we are not left with

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

judgment when it imposed a 48-month sentence, as opposed to a lower sentence or

a sentence involving home confinement or probation. Burstein’s sentence was

within the range of reasonable sentences that could be imposed in this case in light

of the significant scale of Burstein’s criminal scheme, which involved the

distribution of an addictive opiate.

                                  III.     CONCLUSION

       For these reasons, we affirm Burstein’s sentence.

       AFFIRMED.




prison. This conviction was not counted in his criminal history score because of its age. See
U.S.S.G. § 4A1.2(e)(3).
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