United States v. Demetrius Bain

Case: 15-13052 Date Filed: 08/18/2016 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-13052
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20894-JLK-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEMETRIUS BAIN,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 18, 2016)

Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges.
Case: 15-13052 Date Filed: 08/18/2016 Page: 2 of 5

PER CURIAM:

Demetrius Bain appeals his 420-month total sentence for two counts of

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

violence. * Bain argues that his total sentence is unreasonable because it does not

promote the mandated goal of avoiding disparate sentences for similarly situated

defendants, as required by 18 U.S.C. § 3553(a). He also argues that his total

sentence is unreasonable because the court relied on factors that were already taken

into consideration by the Sentencing Guidelines.

Review in this kind of case is deferential. We review the reasonableness of

a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.

Ct. 586, 591, 169 L. Ed. 2d 445 (2007). We first ensure that the district court made

no significant procedural error, then examine whether the sentence is substantively

reasonable in the light of the totality of the circumstances. Id. at 51, 128 S. Ct. at

591. The party challenging the sentence bears the burden to show that the sentence

is unreasonable in the light of the record and of the § 3553(a) factors. United

States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Arguments raised for the

first time in a party’s reply brief are waived. See United States v. Britt, 437 F.3d

1103, 1104 (11th Cir. 2006).

*
We choose not to rely on the debatable appeal waiver in this case.
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Abuse of discretion might be shown when the district court “(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. Osorio-Moreno,

814 F.3d 1282, 1287 (11th Cir. 2016). The weight given to any specific § 3553(a)

factor, however, is left to the district court’s sound discretion. United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007).

Attaching “great weight to one factor over others” is not by itself an abuse of

discretion. See United States v. Overstreet, 713 F.3d 627, 638 (11th Cir. 2013).

Disparity between sentences imposed on codefendants is generally no appropriate

basis for relief on appeal. United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th

Cir. 2001). We will vacate the sentence only if “left with the definite and firm

conviction that the district court committed a clear error of judgment . . . by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” Osorio-Moreno, 814 F.3d at 1287.

“Double counting a factor during sentencing is permitted if the Sentencing

Commission… intended that result and each guideline section in question concerns

conceptually separate notions relating to sentencing.” United States v. Dudley, 463

F.3d 1221, 1227 (11th Cir. 2006) (quotation omitted). “Impermissible double

counting occurs only when one part of the Guidelines is applied to increase a

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defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” Id. at 1226-27.

Apart from the advisory guidelines, the § 3553(a) factors are mandatory statutory

considerations; the court is to contemplate the factors in ensuring that “a sentence

[is] sufficient, but not greater than necessary, to comply with the purposes” of

sentencing. See 18 U.S.C. § 3553(a). While some of the factors are reflected in

the guidelines, they are -- in this § 3553(a) context -- still distinct from the

guidelines and may be used to tailor the sentence. See 18 U.S.C. § 3553(a)(2);

United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621

(2005). This approach is not impermissible double counting.

Upon review of the record and consideration of the parties’ briefs, we

affirm.

Bain’s 420-month total sentence is reasonable. First, Bain waived his

argument that the government failed to follow the appropriate procedure in

exceeding the guideline range; he improperly raised that argument for the first time

in his reply brief. See Britt, 437 F.3d at 1104.

Second, Bain’s disparity argument fails because disparity alone is no

appropriate basis for appeal. See Regueiro, 240 F.3d at 1325-26. Even if disparity

alone were an appropriate basis for relief, the record from Bain’s sentencing

hearing shows clearly that the court considered the disparity issue, but attached

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greater weight to the seriousness of Bain’s offenses and criminal history. The

court acted within its discretion when it applied different weight to different

§ 3553(a) factors, and Bain has therefore failed to establish unreasonableness on

this basis. See Overstreet, 713 F.3d at 638; see also Clay, 483 F.3d at 743.

Third, the court did not engage in impermissible double counting when it

relied on factors already considered by the sentencing guidelines, which are

advisory only. The court determined that the facts underlying Bain’s convictions

were “terrifying,” “horrible,” and “traumatic,” and that his criminal history was

“extensive.” Although the nature of Bain’s crimes and his criminal history were

considered in calculating his advisory guideline range, these circumstances are

conceptually separate from applying the § 3553(a) factors. See 18 U.S.C. 3553(a).

The court concluded that the recommendation in the PSI was insufficient to reflect

the seriousness of the defendant’s conduct; the court was permitted to use the

§ 3553(a) factors to tailor the ultimate total sentence. See Booker, 543 U.S. at 245,

125 S. Ct. at 757. The decision to rely on factors already, to some degree,

considered in the PSI was therefore not unlawful or unreasonable, because the

court is permitted to sentence beyond the Guidelines in its discretion when the

sentence is reasonable. Accordingly, we affirm the total sentence as reasonable.

AFFIRMED.