Case: 13-11030 Date Filed: 12/31/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11030
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D.C. Docket No. 6:12-cr-00012-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTWOINE MAURICE ALLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(December 31, 2013)
Before CARNES, Chief Judge, HULL and GARZA, * Circuit Judges.
PER CURIAM:
*
Honorable Emilio M. Garza, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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Antwoine Maurice Allen appeals his 120-month sentence, imposed after he
pleaded guilty to distribution of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C). Allen contends that the district court’s 33-month upward
variance from his guidelines range, which was 70 to 87 months, is substantively
unreasonable. The statutory maximum sentence for Allen’s offense of conviction
is 240 months. See id. § 841(b)(1)(C).
Allen argues that the district court’s consideration of his prior robbery
conviction improperly focused on the violent conduct of two other men who, while
Allen served as a lookout, robbed and attempted to rape a woman who was eight
months pregnant. He also argues that the district court improperly based the
upward variance on its disapproval of his tattoos and his sketchy record of
employment.
We review a sentencing decision for reasonableness, applying a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586,
591 (2007). That standard allows a range of choice for the district court, so long as
its choice does not constitute a clear error of judgment. United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc). As we have explained, “the relevant
question when reviewing for abuse of discretion is not whether we would have
come to the same decision if deciding the issue in the first instance. The relevant
inquiry, rather, is whether the district court’s decision was tenable, or, we might
2
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say, ‘in the ballpark’ of permissible outcomes.” Id. (alterations and quotation
marks omitted). While a district court’s justification for varying from the
guidelines range must be sufficiently compelling to support the degree of the
variance, id. at 1186, there is no presumption that a sentence outside of the
guidelines range is unreasonable, and we must give the district court’s decision to
impose it due deference. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Allen, as the
party challenging the sentence, bears the burden of showing that it is unreasonable
in light of the record and the 18 U.S.C. § 3553(a) factors. 1 See United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
The district court provided several justifications for exercising its discretion
to vary above the guidelines range in sentencing Allen. It focused primarily on his
criminal history record and his history of violating the terms of probation (once)
and parole (twice) that were imposed after an earlier conviction. Referring to the
presentence investigation report, the facts of which were undisputed, the court
1
The § 3553(a) factors include: the nature and circumstances of the offense and the
history and characteristics of the defendant; the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the offense; the
need for deterrence; the need to protect the public; the need to provide the defendant with
necessary educational or vocational training or medical care; the kinds of sentences available; the
sentencing guidelines range; pertinent policy statements of the Sentencing Commission; the need
to avoid unwanted sentencing disparities; and the need to provide restitution to victims. 18
U.S.C. § 3553(a).
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observed that Allen’s “criminal history is most egregious.” 2 The court pointed out
that if Allen had been convicted of count 1 as charged in the indictment, his
mandatory minimum sentence would have been ten years imprisonment with a
maximum sentence of life. 3 The court noted that Allen had been involved in prior
crimes of violence, that his parole had been revoked “on numerous occasions,” and
that “each time it seemed as if any period of supervised release or probation
resulted in [Allen’s] having violated that” accompanied by a judicial determination
that he was in violation. Referring to Allen’s plea agreement, the court concluded,
“He’s lucky to get the deal that he’s got.”
In considering Allen’s criminal history, the district court discussed Allen’s
prior conviction for robbery. The facts of it were that Allen, along with Alvin
Adkins and John Ferguson, followed a woman as she was driving to her
apartment. 4 After she arrived and was walking toward the apartment, Adkins and
Ferguson approached her while Allen waited in the car for them to do it. Adkins
held her at gunpoint and pushed her to the ground. Her husband came out of the
apartment, and Adkins forced her and her husband into their apartment at gunpoint.
Adkins attempted to rape the woman, who was eight months pregnant, and then
2
The parties did not object to the presentence investigation report, and the district court
adopted the report’s factual statements as its findings of fact.
3
Count 1 charged Allen and two other men with conspiracy to possess with intent to
distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846. That count and three others were dismissed as part of Allen’s written plea agreement.
4
Allen did not object to the facts of the robbery that were recounted in the PSR.
4
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forced her to perform oral sex on him before leaving the apartment and stealing the
woman’s car. Allen followed, driving the vehicle that had been used to get the
assailants to the scene of the crime.
Contrary to Allen’s argument, the sentence hearing transcript clearly shows
that the district court recognized it was Adkins and Ferguson, and not Allen
himself, who actually committed the acts of violence. The court did not abuse its
discretion in considering the nature of the crime and Allen’s role in it.
As for Allen’s tattoos, the district court noted some of the things that Allen
had chosen to have inked on his body: “‘Death.’ Skulls with ‘B’ and ‘4’ in the
eyes, ‘dishonor’ and ‘bonded by loyalty,’ with a gun on his left arm, ‘baby boy’ on
his right wrist and ‘sex, money, murda,’ and a depiction of a gun on his right
biceps.”5 The court referred to the tattoos as a “badge of honor” for a person who
is unlikely to be deterred from crime except by imprisonment. In the same
discussion, the court also commented that Allen was “a dangerous person,” who
had “been before the criminal justice system” but had “never been dealt with
adequately.”
5
The PSR described all of Allen’s tattoos as follows:
“Death,” skulls with “B” and “4” in the eyes, “Dishonor,” and “Bonded by Loyalty” with
a gun on his left arm; “Renee” and “Myriah” in a scroll on his right forearm; “Tyiamna”
and “Baby Boy” on his right wrist; and “Sex Money Murda” and a depiction of a gun on
his right biceps.”
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Defense counsel asserted to the district court, without any evidence to
support his assertion, that Allen had gotten “most” of his tattoos –– he did not
specify which ones –– when he was seventeen years old, and he argued that “a lot
of 17-year-olds do that.” In his brief to this Court, Allen asserts without citation to
any authority that the sentencing guidelines “do not allow for an upward variance
over tattoos.” If the district court had based the upward variance solely on Allen’s
tattoos, he would have a better argument. The record reveals, however, that the
district court considered a lot more than Allen’s tattoos. In fact, the court’s
primary focus was on Allen’s criminal history and his history of repeatedly
violating terms of release from custody. If consideration of the nature or content of
some of the tattoos did factor into the district court’s sentencing determination, it
was as part of the history and characteristics of the defendant. See 18 U.S.C. §
3553(a)(1); cf. United States v. Hernandez-Villanueva, 473 F.3d 118, 121, 123 (4th
Cir. 2007) (upholding a sentence as substantively reasonable when the district
court considered, among other things, the defendant’s tattoos, which evidenced
gang affiliation). Two tattoos of guns, one of which was accompanied with the
words “sex, money, murda,” suggested to the district court that Allen might return
to his criminal past, which included a robbery in which one of the victims was
sexually assaulted.
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The district court also considered Allen’s sporadic work history. Like the
tattoos, his employment record is part of his history and characteristics, which the
district court properly factored into its § 3553(a) analysis. See 18 U.S.C.
§ 3553(a)(1), (a)(2)(D); United States v. Coleman, 635 F.3d 380, 383 (8th Cir.
2011) (upholding a sentence as substantively reasonable when the district court
considered, among other things, the defendant’s “complete lack of gainful
employment”). Also like the tattoos, Allen’s work history was not the only thing
that the district court considered when making its sentencing determination.
When sentencing Allen, the district court stated that it had considered the §
3553(a) factors and reiterated that its justifications for an upward variance were “a
horrendous criminal record, numerous revocations for failure to live within the
terms of probation and the state [criminal] record, [and] a very checkered history
about any employment.” The court then varied upward from the top of the
guidelines range by 33 months, sentencing Allen to 120 months imprisonment,
which is only half of the 240-month statutory maximum sentence it could have
imposed. The district court’s justifications were sufficiently compelling to support
the extent of the upward variance. There was no abuse of discretion.
AFFIRMED. 6
6
This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).
7