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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11835
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cr-20597-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

TORREY AMICA,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 23, 2017)

Before MARCUS, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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         Torrey Amica appeals his 135-month sentence after pleading guilty to one

count of carjacking and one count of brandishing a firearm in furtherance of a

crime of violence. We affirm.

                                     I. BACKGROUND

         On December 8, 2014, Amica and his brother, Lee Howard, approached the

victim, H.M.K., from behind as she was opening the front door to her home. As

the victim began to scream for help, Amica placed his hand over her mouth and

pointed a gun to her head. Amica and Howard then forced the victim inside her

home and instructed her to get on her knees and put her hands on her head. Amica

made the victim face the wall; he asked for her money, her credit cards, and the

personal identification number to her debit cards; and he removed her car keys

from a lanyard around her neck. Amica then switched places with Howard, who

held the victim at gunpoint while Amica drove away in the victim’s vehicle.1

Amica and Howard stole a television, computer, cell phone, debit card, and other

items from the victim’s home. The next day, law-enforcement officers found

Amica in possession of the victim’s cell phone and vehicle. Amica’s fingerprints

were found on the victim’s vehicle and television.

         Amica and Howard were charged with conspiracy to carjack, in violation of

18 U.S.C. § 371 (Count 1); carjacking, in violation of 18 U.S.C. § 2119(1) (Count

1
    Howard got away on the victim’s bicycle.

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2); and brandishing a firearm in furtherance of a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A)(ii) (Count 3). Amica entered into a plea agreement,

wherein the government agreed to dismiss Count 1. The government also agreed

to recommend that the district court reduce his Sentencing Guidelines offense level

by three for acceptance of responsibility2 and sentence Amica at the low end of the

applicable Guidelines range.

         At his change-of-plea hearing, Amica initially disputed that he intended to

cause death or serious bodily harm to the victim, but he ultimately signed a factual

proffer asserting he had. Also during the hearing, Amica’s codefendant, Howard,

told the court he suffered from schizophrenia and experienced hallucinations.

Amica and Howard entered guilty pleas, which were accepted by the court.

         On the day of his scheduled sentencing hearing, Amica filed a motion to

withdraw his guilty plea, appoint new counsel, cancel the sentencing hearing, and

set the case for trial. Amica asserted that he felt pressured to plead guilty, was

under the misimpression that his counsel would file a motion to suppress the

victim’s identification of him, and sought to challenge the evidence against him.

The district court agreed to appoint a new attorney but denied the motion to

withdraw the guilty plea. The district court then referred Amica to a magistrate

judge, who appointed a new attorney.

2
    U.S.S.G. § 3E1.1(a).

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         Before sentencing, the United States Probation Office prepared a

Presentence Investigation Report (“PSI”) calculating Amica’s Sentencing

Guidelines range. The PSI calculated a base offense level of 20 for Count 2, under

U.S.S.G. § 2B3.1(a).3 Because the offense involved carjacking, Amica received a

two-level enhancement.4 He also received an additional two-level enhancement

because the victim was physically restrained during the home invasion.5 The

maximum statutory penalty for Count 2 was 15 years. For Count 3, the mandatory

minimum sentence was seven years, consecutive to any other term of

imprisonment, and the maximum sentence was life. Based on a total offense level

of 24 and a criminal history category of I, Amica’s Guidelines range was 51 to 63

months for Count 2 and seven years for Count 3, to run consecutively to any other

term of imprisonment. The PSI did not apply a reduction for acceptance of

responsibility. Amica objected to the PSI and asserted that his signed factual

proffer sufficiently demonstrated his acceptance of responsibility.

         At the sentencing hearing, the district court first addressed the acceptance-

of-responsibility issue. Amica’s attorney noted that, between Amica’s attempt to

withdraw his plea and sentencing, Amica had filed a statement of acceptance in

3
 Count 3 was excluded from the grouping rule because it required a term of incarceration to run
consecutively to any other term of imprisonment.
4
    U.S.S.G. § 2B3.1(b)(5).
5
    U.S.S.G. § 2B3.1(b)(4)(B).

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which he adopted the factual proffer that he gave the court at the time of the

change of plea. Amica argued that he had expressed remorse and had accepted

responsibility for his criminal activity; he therefore contended that he qualified for

an acceptance-of-responsibility reduction and that the only issue was whether it

would be a two-point or a three-point reduction. The government stated Amica

had not clearly reneged on his acceptance of responsibility, despite his motion to

withdraw his plea, and that so long as Amica did not argue at sentencing that he

did not do anything wrong, it was prepared to move for the three-point reduction.

      When the district court stated that a two-point reduction was “as much as [it

was] willing to do,” Amica asked the court to reconsider. R. at 270. The court

denied Amica’s request and noted that it had the discretion to deny any credit for

acceptance of responsibility “in light of the way he [had] conducted himself.” R.

at 271. The court also noted its discretion to treat the issue as a variance issue,

rather than as a Guidelines issue. The court ultimately granted Amica a two-point

reduction for acceptance of responsibility.

      The district court calculated the Guidelines range at 41 to 51 months based

on Amica’s total offense level of 22. The court then heard arguments about the

proper sentence to impose. The court stated it was inclined to go to the high end,

noting the way Amica had “conducted himself through the case,” the

circumstances of the offense, and the involvement of Amica’s codefendant,


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Howard, whom the court viewed as being “something of a victim.” R. at 274. The

government stated that it was bound by the plea agreement to recommend a

sentence at the low end of the guidelines.

      The district court stated that it had sentenced Howard, that it was familiar

with his psychiatric condition and limitations, and that it believed that Amica

involved him in the crime and was a significant influence when it came to his

participation. The court further stated that Amica’s conduct reflected a “level of

callousness that deserves to be punished harshly.” R. at 277. After considering

“the statements of the parties, the [PSI] containing the advisory guidelines[,] and

the statutory factors,” the court found that a high-end sentence was “sufficient but

not greater than necessary to deter future criminal conduct . . . and to achieve

substantial justice.” R. at 277. The court imposed a sentence of 135 months,

consisting of 51 months as to Count 2 and a consecutive term of 84 months as to

Count 3. Amica objected and argued the sentence was procedurally and

substantively unfair. After hearing the objections, the court notified Amica of his

right to appeal and stated that “with or without the [codefendant’s] situation, the

sentence would have been the same because of the circumstances of the crime.” R.

at 281.

      Amica raises three issues on appeal. First, he argues that his sentence was

procedurally unreasonable because the district court considered non-record


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evidence and offered only a vague explanation for his sentence. Second, he argues

that his sentence was substantively unreasonable because the court placed

substantial weight on non-statutory factors. Third, he argues that the court clearly

erred in denying him an additional one-point reduction for acceptance of

responsibility.

                                 II. DISCUSSION

A. Reasonableness of the Sentence

      A court must impose a sentence that is “sufficient, but not greater than

necessary,” to comply with the following purposes:

      (A) to reflect the seriousness of the offense, to promote respect for the
      law, and to provide just punishment for the offense;
      (B) to afford adequate deterrence to criminal conduct;
      (C) to protect the public from further crimes of the defendant; and
      (D) to provide the defendant with needed educational or vocational
      training, medical care, or other correctional treatment in the most
      effective manner.

18 U.S.C. § 3553(a). In imposing a sentence, a 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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      “We review the reasonableness of a sentence for abuse of discretion using 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) (citation omitted). The party challenging the

sentence bears the burden to show it is unreasonable. Id.

      1. Procedural Reasonableness

      A sentence may be procedurally unreasonable if a district court commits an

error “such as miscalculating the advisory guidelines range, treating the guidelines

range as mandatory, or failing to consider the 18 U.S.C. § 3553(a) factors.” United

States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). The court does not need to

discuss each of the § 3553(a) factors individually. Id. To be procedurally

reasonable, the court only must acknowledge that it considered the § 3553(a)

factors and the defendant’s arguments. Id.

      Here, the district court correctly calculated the Sentencing Guidelines range,

acknowledged that the Guidelines were advisory, and stated that it considered

Amica’s arguments and the statutory factors. This was sufficient for procedural

reasonableness. See id. While the court mentioned Howard, Amica’s codefendant,

twice during the hearing, the court stated that it considered Amica’s arguments and

the statutory factors and it is clear from that record that its views on Howard were


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not the only reason for the sentence. Similarly, nothing in the record suggests that

such views resulted from evidence Amica was unable to confront, as the court

heard evidence concerning the codefendant’s mental health issues at Amica’s

change-of-plea hearing, where Amica was present and demonstrated his ability to

dispute details with which he disagreed.

      2. Substantive Reasonableness

      A district court abuses its discretion and imposes a substantively

unreasonable sentence if 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)

(quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)).

“[A] district court commits a clear error of judgment when it weighs [the proper]

factors unreasonably, arriving at a sentence that does not ‘achieve the purposes of

sentencing as stated in § 3553(a).’” Id. (quoting United States v. Pugh, 515 F.3d

1179, 1191 (11th Cir. 2008)).

      “A sentence based on an improper factor fails to achieve the purposes of

§ 3553(a) and may be unreasonable . . . .” United States v. Aaron Williams, 456

F.3d 1353, 1361 (11th Cir. 2006), abrogated on other grounds by Kimbrough v.

United States, 552 U.S. 85, 128 S. Ct. 558 (2007). “[T]he party challenging the


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sentence bears the initial burden of establishing that the district court considered an

impermissible factor at sentencing.” Id. Whether a factor is impermissible is a

question of law that we review de novo. Id. If the court considered an

impermissible factor, we will vacate the sentence and remand unless the error is

harmless. Id. at 1362. An error is harmless “if the record as a whole shows the

error did not substantially affect the district court’s selection of the sentence

imposed.” Id.

      Additionally, although “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct” is a factor that a court must consider in imposing a sentence, 18 U.S.C.

§ 3553(a)(6), a disparity in sentences may be warranted when the defendants are

not similarly situated, United States v. Joya Williams, 526 F.3d 1312, 1324 (11th

Cir. 2008). “Although we do not automatically presume a sentence within the

guidelines range to be reasonable,” we ordinarily expect it to be. United States v.

Hunt, 526 F.3d 739, 746 (11th Cir. 2008). That a sentence is “well below” the

statutory maximum sentence may also indicate its reasonableness. United States v.

Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).

      Here, the district court explicitly stated that it considered the statutory

factors and even made specific findings with regard to some of those factors,

although it was not required to do so. See Sarras, 575 F.3d at 1219. Additionally,


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the court expressly considered the purposes of § 3553(a), finding that the sentence

it imposed was sufficient but not greater than necessary to deter future criminal

conduct and to achieve substantial justice. Because the court based Amica’s

sentence on the statutory factors and because it considered the parties’ arguments,

the court’s consideration of information about the codefendant does not render

Amica’s sentence substantively unreasonable.

         As to the information’s permissibility, which we review de novo, 6

characteristics about a codefendant may be relevant for the court’s consideration of

the “nature and circumstances of the offense” factor—and were in fact relevant

considerations under that factor here. See 18 U.S.C. § 3553(a)(1). But even if the

information about the codefendant was not within any of the enumerated factors

and therefore impermissible, any error was harmless because the record as a whole

shows that the court’s consideration of that information did not substantially affect

the sentence it imposed. See Aaron Williams, 456 F.3d at 1362.

         Although Amica and his codefendant received disparate sentences, they

were not similarly situated and the disparity therefore was warranted. See Joya

Williams, 526 F.3d at 1324. Finally, that the sentence of 51 months was within the

Guidelines range and well below the 15-year statutory maximum further indicate

its reasonableness. See Croteau, 819 F.3d at 1310; Hunt, 526 F.3d at 746.

6
    See Aaron Williams, 456 F.3d at 1361.

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B. Acceptance of Responsibility

      We review a district court’s denial of an acceptance-of-responsibility

reduction for clear error. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir.

2009). If a defendant qualifies for a two-level reduction for acceptance of

responsibility and has an offense level of 16 or greater, he may receive an

additional one-level reduction if the government makes a motion stating that “the

defendant has assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” U.S.S.G.

§ 3E1.1(b). After the government makes the motion, the court must determine

whether to grant the motion. See id. § 3E1.1(b), cmt. n.6 (stating, if the court “also

determines” that the defendant has met the criteria, the court should grant the

motion). The timeliness of a defendant’s acts is a “factual determination to be

made on a case by case basis,” considering the “extent of the trial preparation,” the

“court’s ability to allocate its resources efficiently,” and the “reasonable

opportunity [for] defense counsel to properly investigate.” United States v.

McConaghy, 23 F.3d 351, 353-54 (11th Cir. 1994).

      Although Amica qualified for the third point and the government was

prepared to move for it, the court found that only a two-point reduction was


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appropriate in light of Amica’s conduct. Amica attempted to deny key elements of

his charged offense at his change-of-plea hearing. Then, on the day of his

scheduled sentencing, Amica moved to withdraw his guilty plea, which caused the

court to expend additional resources to convert his scheduled sentencing hearing

into a hearing on the motion. Thus, the record supports the conclusion that

Amica’s conduct prevented the court from allocating its resources efficiently.

Accordingly, the district court did not clearly err when it denied Amica an

additional point reduction for acceptance of responsibility.

      AFFIRMED.




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