          Case: 19-13062   Date Filed: 08/18/2020   Page: 1 of 11



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13062
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:18-cr-00191-BJD-PDB-1



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus

NATARIO BERNARD PETERSON,
a.k.a. Nite Ryda,

                                                       Defendant-Appellant.

                      ________________________

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

                            (August 18, 2020)



Before MARTIN, ROSENBAUM, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Natario Peterson appeals the procedural and substantive reasonableness of

his above-guidelines total sentence of 60 months. The sentence was imposed after

Peterson pleaded guilty to three counts of distributing cocaine base, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(C). No reversible error has been shown; we affirm.

      After Peterson pleaded guilty to the charged drug offenses, a probation

officer prepared a Presentence Investigation Report (“PSI”). The PSI assigned

Peterson a criminal history category of I based on Peterson’s one prior juvenile

adjudication. Given that criminal history category and a total offense level of 15,

Peterson’s advisory guidelines range was calculated as 18 to 24 months.

      The PSI also included a paragraph about Peterson’s “Other Criminal

Conduct.” In September 2018, Peterson -- who is a member of the Rollin’ 20s

criminal gang -- went to a gas station with a fellow gang member (Edwards) and a

woman named “Bonnie” for the purpose of confronting Edwards’s ex-girlfriend,

Daley. Edwards kidnapped Daley at gunpoint and ordered her to follow, in

Daley’s car, a second car driven by Peterson and Bonnie. After both cars stopped

on the side of the road, Edwards pointed a gun at Daley’s head, struck Daley in the




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face several times with the gun, and threatened to kill her. Daley soon escaped to a

nearby home and called the police. 1

       According to the PSI, Peterson later admitted -- in recorded phone

conversations and during an interview with officers -- that he had authorized

Edwards to engage in the violent criminal conduct against Daley. Peterson also

made statements during recorded phone conversations indicating his desire and

plan to have Bonnie killed.

       In his objections to the PSI, Peterson denied the factual allegations about the

events surrounding the September 2018 kidnapping. Peterson also objected to the

PSI’s reliance on that uncharged criminal conduct as warranting an upward

departure or variance. The district court overruled Peterson’s objections to the

PSI.

       During the sentencing hearing, the government presented testimony from

Jeffrey Massey, a special agent with the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”). Agent Massey testified about an ATF investigation of the

Rollin’ 20s gang and the gang’s involvement in drug trafficking and firearm

offenses.




1
  Edwards later pleaded guilty in state court to kidnapping with a firearm, armed robbery,
possession of a firearm by a convicted felon, and aggravated battery and was sentenced to 20
years’ imprisonment. Peterson was never arrested or charged as a result of the September 2018
kidnapping.
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       In addition to describing the controlled drug buys underlying Peterson’s

charged offenses, Agent Massey also testified about recorded phone conversations

between Peterson and a confidential informant (“CI”) during which Peterson

discussed his participation in the September 2018 kidnapping.2 During the

recorded conversations, Peterson also commented that Bonnie was “a loose end”

and said, “[w]e’re going to have a funeral for Bonnie.” During another recorded

call, the CI said that Daley would testify against Peterson, to which Peterson

responded, “She ain’t gonna make it. I’ve got the address.”

       During a post-arrest interview, Peterson told Agent Massey that Peterson

oversaw his own “line” of the gang and had 13 other gang members reporting to

him. During that interview, Peterson also admitted that he had been involved in

the September 2018 kidnapping and that he had authorized Edwards to carry it out.

Later, Peterson again admitted his involvement in the September 2018 kidnapping

when -- at the sentencing hearing -- he asked the district court not to “penalize me

for the crimes that I’m not charged with, even though I did those -- I did those

things.”

       At the conclusion of the sentencing hearing, the district court found clear

and convincing evidence that Peterson had engaged in criminal behavior beyond



2
 Recordings of those phone conversations were played for the district court. The recorded calls,
however, were not transcribed and are thus not part of the record on appeal.
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the charged drug offenses. The district court found that a criminal history category

of I was inadequate to reflect Peterson’s past criminal conduct. The district court

thus granted the government’s motion -- pursuant to U.S.S.G. § 4A1.3 -- for an

upward departure to the next highest criminal history category. This upward

departure resulted in a new advisory guideline range of 21 to 27 months.

      The district court then found that an upward variance was also necessary to

reflect the seriousness of Peterson’s offenses, to deter criminal conduct, to protect

the public, and to avoid a disparity in sentences. The district court said that the

mitigating evidence -- including Peterson’s mental health and intellectual

challenges and difficult childhood -- provided some explanation for Peterson’s

“moral bankruptcy.” The district court, however, also stressed Peterson’s

“proclivity toward not only committing but organizing criminal offenses,”

Peterson’s stated intention to conceal his crimes and to retaliate against those who

might implicate him, and Peterson’s disrespect for the law. The district court then

sentenced Peterson to 60 months’ imprisonment and 5 years’ supervised release.

      We review Peterson’s final sentence for procedural and substantive

reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.

2008). A sentence may be procedurally unsound if the district court calculates

incorrectly the guidelines range, treats the guidelines as mandatory, fails to

consider the 18 U.S.C. § 3553(a) factors, chooses a sentence based on clearly


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erroneous facts, or fails to explain adequately the chosen sentence. Id. In

determining procedural reasonableness, we review de novo the district court’s

application of the Guidelines and review for clear error the district court’s factual

findings. See United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996).

      After determining a sentence is procedurally sound, we evaluate the

substantive reasonableness of a sentence -- whether one inside or outside the

guidelines range -- under a deferential abuse-of-discretion standard. See Gall v.

United States, 552 U.S. 38, 51 (2007). In reviewing the substantive reasonableness

of a sentence, we examine “the totality of the circumstances, including . . . whether

the statutory factors in § 3553(a) support the sentence in question.” See Gonzalez,

550 F.3d at 1324.

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

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

include the need for a sentence to reflect the seriousness of the offense, promote

respect for the law, provide just punishment, deter criminal conduct, and protect

the public from future crimes. 18 U.S.C. § 3553(a). The weight given to each

section 3553(a) factor “is a matter committed to the sound discretion of the district

court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).

      When a sentence is above the guidelines range, we “may consider the

deviation, but must give due deference to the district court’s decision that the §


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3553(a) factors, on a whole, justify the extent of the variance.” Id. (quotation

omitted). “We may vacate a sentence because of the variance 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 arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted). “[T]hat

we might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal.” Id. (quotation omitted).

      Peterson bears the burden of establishing that his sentence is unreasonable in

the light of both the record and the section 3553(a) factors. See United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Peterson has failed to demonstrate that his sentence is procedurally

unreasonable. That the district court calculated properly the initial advisory

guidelines range of 18 to 24 months is undisputed. The district court also treated

those guidelines as advisory. In determining Peterson’s sentence, the district court

expressly considered section 3553(a) factors. The district court also explained

adequately its reasoning for applying both an upward departure and an upward

variance.

      The district court also committed no procedural error in applying a one-

category upward departure. Under U.S.S.G. § 4A1.3, the district court may elect


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to depart upward from an advisory sentence “[i]f reliable information indicates that

the defendant’s criminal history category substantially under-represents the

seriousness of the defendant’s criminal history or the likelihood that the defendant

will commit other crimes . . ..” U.S.S.G. § 4A1.3(a)(1).

       Here, the evidence presented at the sentencing hearing -- including Agent

Massey’s testimony about Peterson’s position of authority in the Rollin’ 20s gang

and about Peterson’s offense conduct as well as Peterson’s own statements and

testimony -- constituted sufficiently reliable evidence3 supporting the district

court’s finding that Peterson’s criminal history category of I significantly

underrepresented his criminal activity and the likelihood of recidivism. Moreover,

that the September 2018 kidnapping occurred after Peterson’s offenses of

conviction does not prevent the district court from considering that conduct as

grounds for an upward departure. See United States v. Fayette, 895 F.2d 1375,

1380 (11th Cir. 1990) (an upward departure under section 4A1.3 may be based on

both pre-plea and post-plea criminal conduct). The district court also complied

properly with the procedure for imposing an upward departure by finding that an

increase of one criminal history category reflected adequately Peterson’s past




3
  We reject Peterson’s contention that the district court’s finding about his involvement in the
uncharged conduct was based only on hearsay and speculation. Peterson himself told Agent
Massey that he was involved in and had authorized the September 2018 kidnapping and later
testified that he “did those things.”
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criminal conduct. See United States v. Williams, 989 F.2d 1137, 1142 (11th Cir.

1993).

      Peterson also contends that the district court considered impermissibly

Peterson’s need for rehabilitation through education in imposing his sentence -- a

violation of Tapia v. United States, 131 S. Ct. 2382 (2011), and United States v.

Vandergrift, 754 F.3d 1303 (11th Cir. 2014). We disagree. During the sentencing

hearing and in his sentencing memorandum, Peterson’s lawyer asserted that

Peterson was in “desperate need of intervention and services that can be provided

through the sentence,” including mental health intervention and vocational

training. In announcing Peterson’s sentence, the district court noted that Peterson

“may need vocational training and support around substance abuse and education”

and that Peterson “perhaps could benefit from the use of -- or from the further

education efforts, so part of the sentence that I impose is going to give you that

opportunity.” We read these comments as acknowledging Peterson’s explicit

request for mental health and education services -- not as an indication that the

sentencing judge considered rehabilitation as a factor in imposing Peterson’s

sentence.

      Peterson has also failed to demonstrate that his above-guidelines sentence

substantively is unreasonable. Peterson’s sentence is below the statutory

maximum sentence of 20 years’ imprisonment, which is indicative of


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reasonableness. See United States v. Valnor, 451 F.3d 744, 751-72 (11th Cir.

2006) (affirming an upward variance and observing that the ultimate sentence was

appreciably below the statutory maximum).

      Furthermore, given the record in this case -- including Peterson’s

involvement in the controlled drugs sales and other uncharged criminal conduct --

the district court concluded reasonably that an above-guidelines sentence was

sufficient but not greater than necessary to comply with the purposes of sentencing

under section 3553(a). Although Peterson was sentenced substantially above his

advisory guidelines range, we have affirmed as reasonable upward variances of a

similar degree. See, e.g., United States v. Overstreet, 713 F.3d 627, 631, 639 (11th

Cir. 2013) (affirming a 420-month sentence where the advisory guidelines range

was 180 to 188 months); United States v. Brown, 772 F.3d 1262, 1267 (11th Cir.

2014) (affirming a 240-month sentence where the advisory guidelines range was

78 to 97 months).

      Peterson argues that the district court failed to weigh properly the section

3553(a) factors and failed to consider adequately the mitigating factors, including

Peterson’s alleged mental and intellectual disabilities. But “[t]he weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court, and we will not substitute our judgment in weighing the

relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007)


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(quotations and alterations omitted). That the district court afforded more weight

to some aggravating factors than it did to other mitigating factors does not make

Peterson’s sentence unreasonable. Nor did the district court focus single-mindedly

on one section 3553(a) factor: the district court considered the evidence of

Peterson’s uncharged conduct as significant in assessing several of the section

3553(a) factors. The district court was entitled to consider all information

pertinent to Peterson’s “background, character, and conduct” in imposing an

upward variance. See United States v. Tome, 611 F.3d 1371, 1379 (11th Cir.

2010).

      On this record, we cannot say that Peterson’s above-guidelines sentence was

unreasonable or that “the district court committed a clear error of judgment in

weighing the § 3553(a) factors.” See Shaw, 560 F.3d at 1238. Peterson has failed

to meet his burden of showing that his sentence is unreasonable, either

procedurally or substantively.

      AFFIRMED.




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