Case: 13-12858 Date Filed: 07/07/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12858
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20886-DMM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VINCENT GLOVER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 7, 2014)
Before PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 13-12858 Date Filed: 07/07/2014 Page: 2 of 7
Vincent Glover appeals his 80-month total sentence after he was found
guilty of conspiracy to engage in the business of dealing firearms without a license,
in violation of 18 U.S.C. § 371, engaging in the business of firearms without a
license, in violation of 18 U.S.C. § 922(a)(1)(A), and possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On
appeal, he argues that his 80-month total sentence is procedurally and substantively
unreasonable. Specifically, he argues that his total sentence was greater than
necessary to meet the objectives of federal sentencing, that the district court
incorrectly weighed the severity of the offense conduct and relied solely on his
criminal history in imposing his total sentence, and that his criminal history
overrepresented his likelihood of recidivism.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. United States v. Thompson, 702 F.3d 604, 606-07 (11th Cir.
2012), cert. denied, 133 S.Ct. 2826 (2013). We may vacate a sentence only if the
district court “committed a clear error of judgment” with regards to weighing the
factors enumerated in § 3553(a) and arriving at a sentence that is outside the range
of reasonableness. United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir.
2010).
In evaluating the reasonableness of a sentence, we use a two-step process.
United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). We first determine
2
Case: 13-12858 Date Filed: 07/07/2014 Page: 3 of 7
if the sentence was procedurally reasonable by assessing whether the district court
committed any
significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.
Gall v. United States, 552 U.S. 38, 51, 128 S.Ct 586, 597, 169 L.Ed.2d 445 (2007).
Next, we examine whether the sentence was substantively reasonable, taking into
consideration the totality of the circumstances. Id.
The district court is required to “impose a sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in” 18 U.S.C. § 3553(a)(2).
18 U.S.C. § 3553(a). The purposes set forth in § 3553(a)(2) include the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and to protect the public from
future crimes of the defendant. 18 U.S.C. § 3553(a)(2). The court is also required
to consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims when sentencing a defendant. Id. § 3553(a)(1), (3)-(7).
3
Case: 13-12858 Date Filed: 07/07/2014 Page: 4 of 7
The party challenging the sentence bears the burden of proving that it is
unreasonable. United States v. Bane, 720 F.3d 818, 824 (11th Cir.), cert. denied,
134 S.Ct. 835 (2013). In determining whether a sentence is reasonable, if the
district court considers the factors enumerated in § 3553(a), it is not required to
discuss each individual factor. United States v. Talley, 431 F.3d 784, 786 (11th
Cir. 2005). Further, the district court’s acknowledgment that it considered the
defendant’s arguments and the § 3553(a) factors is sufficient to demonstrate that
adequate and proper consideration was given to those factors and thereby render
the sentence procedurally reasonable. United States v. Scott, 426 F.3d 1324, 1330
(11th Cir. 2005).
A sentence is potentially unreasonable if the district court unjustifiably
relied on a single factor. United States v. Kuhlman, 711 F.3d 1321, 1327 (11th
Cir.), cert denied, 134 S.Ct. 140 (2013). “However, significant reliance on a single
factor does not necessarily render a sentence unreasonable,” and we have held that
the weight given to any specific § 3553(a) factor is in the sole discretion of the
district court. Id. Further, we ordinarily expect a sentence within the guideline
range to be reasonable. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008). A sentence imposed well below the statutory maximum is another indicator
of reasonableness. See id.
4
Case: 13-12858 Date Filed: 07/07/2014 Page: 5 of 7
The district court, however, must avoid unwarranted sentence disparities
among defendants with similar records found guilty of similar conduct. United
States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Yet, a defendant who
cooperates with the government and enters a plea agreement is not similarly
situated to a defendant who does not cooperate and proceeds to trial. Further, there
is no unwarranted disparity when a cooperating defendant receives a “substantially
shorter” sentence than a defendant who does not cooperate. Id. at 1101.
Glover’s total sentence is procedurally reasonable. In issuing its sentence,
the district court properly calculated Glover’s guideline range, treated the
Guidelines as advisory, and adequately explained that it considered the statements
of the parties, the PSI, and the § 3553(a) factors. Such a statement was sufficient
to demonstrate that adequate and proper consideration was given to the § 3553(a)
factors and the parties’ arguments and thereby render the total sentence
procedurally reasonable. Scott, 426 F.3d at 1330. Therefore the total sentence was
procedurally reasonable.
Glover’s total sentence is also substantively reasonable. As an initial matter,
Glover’s argument that his total sentence was greater than necessary is without
merit because the district court imposed a total sentence that was 17 months below
the bottom of his guideline range. As noted above, we ordinarily expect a sentence
within the guideline range to be reasonable. See Gonzalez, 550 F.3d at 1324.
5
Case: 13-12858 Date Filed: 07/07/2014 Page: 6 of 7
Further, Glover’s 80-month total sentence is well below the statutory maximum for
his charges, which is another indicator of its reasonableness. Id.
Glover’s total sentence is also not substantively unreasonable because he
received a higher sentence than his codefendant and the district court did not rely
solely on his criminal history in imposing his total sentence. The district court is
required to consider the need to avoid unwarranted sentencing disparities among
defendants with similar records found guilty of similar conduct; however, it is clear
from the record that Glover and his codefendant are not similarly situated.
Docampo, 573 F.3d at 1101. Glover committed the present offense while serving a
term of community control, he obstructed justice during his bench trial, he failed to
cooperate with the government, he has repeatedly violated the law, and his
guideline range was 97 to 121 months; this is sufficient to justify Glover’s higher
total sentence. See Docampo, 573 F.3d at 1101. Further, the district court
considered all of the § 3553(a) factors and then merely chose to explain that
Glover’s criminal history helped justify a higher sentence than his codefendant
with no criminal history.
Although the district court agreed that Glover’s criminal history was
overrepresented, it accounted for this when it sought guidance from criminal
history category II, prior to issuing the total sentence, instead of using category III,
as recommended by the guidelines. As such, the district court’s decision not to
6
Case: 13-12858 Date Filed: 07/07/2014 Page: 7 of 7
vary further below his guideline range did not render the total sentence
substantively unreasonable. See Gonzalez, 550 F.3d at 1324. In light of Glover’s
prior offenses, the frequency of those offenses, the fact that the district court
already varied 17 months below his guideline range, and the district court’s
consideration of the § 3553(a) factors, Glover’s total sentence of 80 months was
substantively reasonable. Accordingly, upon review of the record and
consideration of the parties’ briefs, we affirm.
AFFIRMED.
7