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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12318
Non-Argument Calendar
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D.C. Docket No. 6:15-cr-00220-GAP-TBS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY MCDONALD,
a.k.a. Bam-Bam,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 24, 2017)
Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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After pleading guilty, Gregory Eugene McDonald appeals his total sentence
of 240 months’ imprisonment for carjacking, in violation of 18 U.S.C. §§ 2119(2)
and 2 (“Count One”), and carrying, using, and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A),
(c)(1)(A)(ii), and 2 (“Count Two”). McDonald, his co-defendant Dante Askins,
and two minors confronted a man who was exiting his truck in a hotel parking lot.
The foursome forced the victim back into his truck at gunpoint, tied up his hands
and feet with duct tape and zip ties, hit him over the head with the gun, causing
him to bleed, and then drove him around Orlando for several hours. The district
court sentenced McDonald to a 156-month prison term on Count One, in the
middle of the advisory guidelines range of 140 to 175 months, and to a mandatory-
minimum, consecutive 84-month prison term on Count Two, for a total of 240
months’ imprisonment.
On appeal, McDonald argues that his sentence is procedurally and
substantively unreasonable. After review, we affirm McDonald’s total 240-month
sentence.
I. REASONABLENESS PRINCIPLES
“We review the reasonableness of a sentence for abuse of discretion using a
two-step process.” United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014)
(quotation marks omitted). We look first at whether the sentencing court
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committed any significant procedural error, such as misapplying the guidelines or
treating them as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing
factors, choosing a sentence based on clearly erroneous facts, or failing to
adequately explain the sentence imposed. Id. 1 However, if the defendant failed to
raise the procedural challenge in the district court, our review is limited to plain
error. United States v. Vandergrift, 754 F.3d 1302, 1307 (11th Cir. 2014).
Second, we examine whether the sentence is substantively unreasonable in
light of the § 3553(a) factors and the totality of the circumstances. Cubero, 754
F.3d at 892. The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015). The
weight given to any particular § 3553(a) factor is within the district court’s
discretion, and this Court will not substitute its judgment for that of the district
court. Id. We will reverse a sentence 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
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).
II. PROCEDURAL REASONABLENESS
On appeal, McDonald does not dispute that the district court correctly
calculated the advisory guidelines range and relied on undisputed facts in choosing
the sentence. Rather, McDonald contends that the district court failed to address or
“glossed over” his non-frivolous mitigation arguments and did not explain why it
rejected them.
We note, initially, that McDonald did not make this procedural objection at
sentencing. Nevertheless, whether reviewed for plain error or abuse of discretion,
we conclude that the district court sufficiently considered the § 3553(a) sentencing
factors and explained its imposed sentence.
When pronouncing the chosen sentence, the district court need only set forth
enough to satisfy this Court that it considered the parties’ arguments and had a
reasoned basis for exercising its own legal decisionmaking authority. United
States v. Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). The district court “is
not required to incant the specific language” or to “articulate its consideration of
each individual § 3553(a) factor, so long as the record reflects the court’s
consideration of many of those factors.” Id. (quotation marks omitted). While the
district court is not required to “respond in detail to every argument presented by
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the defendant,” the district court normally will explain why it rejected non-
frivolous arguments for a different sentence. Id. That said, the district court’s
failure to specifically discuss mitigating evidence does not mean the district court
erroneously failed to consider it. United States v. Amedeo, 487 F.3d 823, 833
(11th Cir. 2007).
Here, the record establishes that the district court considered the § 3553(a)
factors and adequately explained the chosen sentence. Prior to pronouncing the
sentence, the district court indicated that it had reviewed the presentence
investigation report (“PSI”), including McDonald’s eight exhibits attached thereto,
and the parties’ sentencing memoranda. Together, these documents provided
detailed information about McDonald’s mitigating circumstances, including: (1)
his young age of 18; (2) his unstable and disadvantaged upbringing; (3) his mental
and emotional health diagnoses and intellectual issues, including his full scale IQ
score of 64, ADHD, bipolar disorder, PTSD, and a learning disability; (4) his need
for rehabilitation and treatment; (5) his vulnerability to victimization in prison; (6)
his role in the offenses and his prior criminal history; and (7) a comparison to co-
defendant Askins’s role in the offenses and criminal history. The district court
listened to McDonald’s arguments for a downward variance and stated that it
would consider McDonald’s eight exhibits relating to his mental health issues. The
district court also heard from McDonald and his mother, who described
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McDonald’s rough upbringing, her own neglect of McDonald due to her
incarceration and drug addiction, and McDonald’s mental health and intellectual
problems.
While the district court did not specifically mention McDonald’s request for
a downward variance in imposing its sentence, the record shows that the district
court gave due consideration to his arguments and imposed a sentence that clearly
reflected its consideration of the § 3553(a) factors. The district court expressly
articulated that it was giving non-binding deference to the guidelines range and
that it had considered the statutory factors.
The district court went further by highlighting the seriousness of
McDonald’s offenses, his history and characteristics, and the need for general
deterrence and to protect the public. Specifically, the district court described the
crimes as “horrific,” and “about as bad as it gets,” stating that they were carried out
solely for “evil” and “ignore[d] basic humanity.” The district court continued,
stating, “It’s one thing to steal a car, even rob a person at gunpoint, but [it is
another] to plan ahead of time in an apparent jovial fashion to buy zip ties and duct
tape with a plan to kidnap someone at gunpoint for no apparent reason” other than
to terrorize the victim and his family. Addressing the sentencing disparity, the
district court explained that the main difference between McDonald and his co-
defendant, Askins, was their criminal history categories, which dictated their
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applicable guidelines ranges. As to the defendants’ roles and relative culpability,
the district court stated:
Now, we spent most of the day with the government attempting
to portray Mr. McDonald as the ringleader, as the more culpable
defendant, and the evidence in that regard is kind of all over the place.
The main sticking point, I suppose, is who struck [the victim] in the
car, and the evidence in that regard is in conflict. It was probably Mr.
McDonald. But frankly I don’t think it really matters.
With respect to the relative culpability of these two men, . . .
Mr. McDonald has issues, mental health issues, learning difficulties,
and it’s frankly difficult to accept the fact as between he and Mr.
Askins that it was Mr. McDonald who was the leader.
My sense is it may have been just the opposite. Mr. McDonald
may have exhibited more violent behavior, but in terms of intellectual
functioning and ability to lead, to plan this caper, to involve these two
minors, and destroy all these lives, I think these two defendants are
equally culpable.
The district court found the need to protect the public to be a significant factor,
noting that both defendants were dangerous young men. The district court
explained that it was imposing a higher sentence on McDonald because of his
criminal history “as well as the fact that he appear[ed] to be a violent and
dangerous person,” making protection of the public an even more significant factor
in his case. The district court recognized that “Mr. McDonald has issues” and
agreed that “society ha[d] let him down” by not addressing them “at an earlier
stage” in his life, but expressed the view that it was too late to address them at
sentencing.
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Although McDonald contends that the district court failed to address
rehabilitation and the need for treatment, the district court was not required to
explicitly articulate its consideration of each statutory factor. Nevertheless, the
district court specifically: (1) noted McDonald’s mental health issues and
intellectual deficits; (2) acknowledged that society had let McDonald down; and
(3) ordered McDonald, as a condition of supervised release, to participate in a
mental health treatment program.
In short, the district court implicitly rejected McDonald’s argument that his
mitigating circumstances warranted a downward variance. 2 It is readily apparent
from the record that the district court concluded that, regardless of McDonald’s
tragic personal history and mental health issues, a sentence within the advisory
guidelines was appropriate based on the horrific nature of the offenses,
McDonald’s dangerousness, and his extensive criminal history. The district court
considered the sentencing factors, and its explanation for the chosen sentence was
more than sufficient.
2
McDonald contends the district court erred in denying him a downward departure based
on his diminished mental capacity. As McDonald concedes, nothing in the record suggests the
district court believed it lacked authority to depart downward. To the contrary, the sentencing
transcript suggests the district court understood it was permitted to depart and chose not to do so.
Accordingly, we lack jurisdiction to review the merits of the district court’s departure decision.
See United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).
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II. SUBSTANTIVE REASONABLENESS
The district court did not abuse its discretion in sentencing McDonald to a
total term of 240 months’ imprisonment on Counts One and Two. As to Count
Two, the district court imposed the mandatory-minimum 84-month sentence,
which the district court was required to run consecutive to any sentence on Count
One. See 18 U.S.C. §§ 924(c)(1)(A)(ii). Thus, McDonald’s substantive
reasonableness challenge really is directed at his 156-month sentence on Count
One.
The 156-month sentence on Count One fell within the advisory guidelines
range of 140 to 175 months, and was roughly half the 25-year statutory maximum
under 18 U.S.C. § 2119(2), two indications of a reasonable sentence. See United
States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014); United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008). Indeed, McDonald’s total sentence on both counts
was five years below the statutory maximum for Count One.
Furthermore, the facts and § 3553(a) factors support the chosen sentence.
As the district court correctly found, McDonald’s crimes were especially
“horrific,” as they involved a pre-planned carjacking and kidnapping of a victim at
gun point, using zip-ties and duct tape, and the use of violence against the victim
that required medical treatment after the ordeal. McDonald and his co-defendant
Askins involved two minors in the planning and execution of the crimes and,
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during the offenses, the four perpetrators discussed possibly killing the victim once
they learned he was a law enforcement officer. In fact, the victim managed to
escape only after his truck’s Onstar system was activated and announced that
police were being directed to the truck’s location, which caused the four
perpetrators to flee. As a result of the offenses, the victim suffered from PTSD and
had to seek counseling.
In addition, by the time he was 18, McDonald had racked up an extensive
criminal history. Between the ages of 12 and 14, McDonald was adjudicated or
convicted of seven offenses, several of which were violent, including trespassing,
petit theft, sexual battery, lewd or lascivious molestation and battery, grand motor
vehicle theft, criminal mischief, burglary of a conveyance, resisting an officer
without violence, battery by a detainee in a detention facility, carjacking with a
deadly weapon, aggravated assault with a deadly weapon, kidnapping with intent
to commit a felony, and burglary of a dwelling. For the last four offenses,
McDonald served three years in prison and had been released on June 26, 2015,
less than three months before he committed the similar offenses in this case. In
fact, McDonald received 2 additional criminal history points, which resulted in the
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highest criminal history category of VI, because he was on probation for those four
prior convictions when he committed the instant offenses. 3
McDonald does not argue that the district court unjustifiably relied upon the
above facts, but rather that McDonald’s age, mental-health issues, low intelligence,
unfortunate upbringing, and need for educational or vocational training and
mental-health treatment warranted a shorter sentence. The district court was well
within its discretion to give those factors less weight than the seriousness of
McDonald’s current crimes, the amount, frequency, and violent nature of his prior
offenses, and the need to protect the public and provide general deterrence. See
United States v. Rosales-Bruno, 789 F.3d 1249, 1254-56, 1262-63 (11th Cir. 2015)
(explaining that a sentencing court may place substantial weight on a defendant’s
criminal record because five of the § 3553(a) factors implicate the defendant’s
criminal history).
Finally, McDonald argues that the district court created an unwarranted
disparity by giving McDonald a 156-month sentence on Count One and his co-
defendant Askins an 84-month sentence on Count One. The district court
explained that the difference in the two co-defendants’ sentences was mainly a
result of their criminal histories and that McDonald’s criminal history indicated he
3
There is no merit to McDonald’s claim that the district court failed to consider that his
adult criminal convictions arose from offenses committed at age 14. McDonald’s age when he
committed each offense was listed in the PSI, which the district court reviewed.
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was a violent and dangerous person. Co-defendant Askins was assigned a criminal
history category of I, while McDonald was assigned a criminal history category of
VI, and thus the two were not similarly situated. See United States v. Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009) (explaining that to demonstrate an
unwarranted sentencing disparity, the comparator must be convicted of similar
conduct and have a similar criminal history).
McDonald contends that the district court miscalculated co-defendant
Askins’s criminal history category by omitting two of Askins’s prior convictions
from his criminal history score. According to McDonald, co-defendant Askins
should have been assigned a criminal history category of III, which would have
resulted in a guidelines range of 97 to 121 months. Even assuming arguendo that
McDonald is correct, this fact would not show that McDonald’s 156-month
sentence on Count One was substantively unreasonable. If anything, it suggests
that co-defendant Askins’s sentence was too lenient, not that McDonald’s sentence
was too harsh. In any event, Askins, even with a criminal history category of III,
would not be “similarly situated” to McDonald, with a criminal history category of
VI. See Docampo, 573 F.3d at 1101. 4 Further, to the extent McDonald points to
the two minors involved in the offenses, they also were not “similarly situated” to
4
McDonald also complains that co-defendant Askins later received an improper
substantial assistance reduction pursuant to Federal Rule of Criminal Procedure 35(b), but this
fact has no bearing on the substantive reasonableness of McDonald’s sentence.
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McDonald, as the minors were not charged. United States v. Spoerke, 568 F.3d
1236, 1252 (11th Cir. 2009) (concluding that an accomplice who was never
prosecuted, convicted, and sentenced was not “similarly situated” to the
defendant).
For all these reasons, McDonald has not shown that the district court’s 240-
month total sentence was an abuse of discretion.
AFFIRMED.
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