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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10541
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00282-ECM-GMB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LLOYD KEENE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(February 18, 2020)
Before NEWSOM, HULL, and MARCUS, Circuit Judges.
PER CURIAM:
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In June 2018, a federal grand jury indicted Tommy Keene for one count of
bank robbery, in violation of 18 U.S.C. § 2113(a). Keene eventually pleaded
guilty and was sentenced to 164-months imprisonment. Keene now appeals his
sentence, which he argues is substantively unreasonable. The Government has
moved to dismiss Keene’s appeal pursuant to an appeal waiver in his plea
agreement. We needn’t determine the enforceability of Keene’s appeal waiver
because we conclude that, even if Keene were entitled to appeal the substantive
reasonableness of his sentence, his appeal would fail on the merits. We therefore
affirm.
Keene’s plea agreement contained an appeal-waiver provision, which stated
that (notwithstanding a few inapplicable exceptions) Keene waived his rights—
conferred by 18 U.S.C. § 3742 and 28 U.S.C. § 2255—to appeal and to collaterally
attack his conviction or sentence. After Keene filed this appeal in February 2019,
the government filed a motion to dismiss, alleging that the appeal was precluded
by the appeal-waiver provision in Keene’s plea agreement. Keene responded that
the appeal waiver provision is unenforceable because he did not enter into it
knowingly and voluntarily.
We find it unnecessary to address the enforceability of Keene’s appeal
waiver, because we hold that even if Keene’s appeal waiver were deemed
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unenforceable and Keene’s appeal were permitted to proceed, it would fail on the
merits.
Keene argues that the district court’s 164-month sentence is substantively
unreasonable because it “overlook[ed] the important factors of [Keene’s]
horrendous upbringing, his mental health issues[,] and [his] traumatic brain
injury,” which “warranted a downward variance” from the Sentencing Guidelines.
We review the substantive reasonableness of a sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We
determine whether the sentence is substantively reasonable under the totality of the
circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The
party challenging the sentence has the burden of demonstrating that it is
unreasonable in light of the record and the sentencing factors. Id.
A district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need “to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense,” as well as deter criminal conduct,
and protect the public from the defendant’s future criminal conduct. See 18 U.S.C.
§ 3553(a)(2). In imposing its sentence, the district 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 guideline range, and
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“the need to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct.” Id. § 3553(a)(1),
(3)–(4), (6).
“The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007). However, a district court abuses its discretion when 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) (quotation omitted).
After careful review of the record, we hold that the district court did not
abuse its discretion in this case. Keene’s sentence—164 months’ imprisonment—
was within the 151-to-188-month range calculated pursuant to the Sentencing
Guidelines. And although we do not automatically presume that a sentence within
the Guidelines’ range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Keene’s
sentence was also well below the statutory maximum term of imprisonment of 240
months, which is another indicator of reasonableness. See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
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The record further shows that the district court explained the 18 U.S.C.
§ 3553(a) factors that it considered and gave a detailed explanation for the sentence
it imposed. The district court acknowledged that Keene has been on a “very
difficult road” but stated that his difficulties “do[n’t] excuse what [he] ha[s] done.”
In imposing a 164-month sentence and rejecting Keene’s substantive-
unreasonableness objection to it, the district court emphasized the “danger” that
Keene poses “to [him]self and to society,” the “continuous nature” of his criminal
behavior, and the “seriousness” of his offense.
The district court’s sentence does not leave us “with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors.” United States v. Clay, 483 F.3d 739, 747 (11th Cir. 2007)
(quotation omitted). Accordingly, Keene’s sentence was substantively reasonable,
and we affirm.
AFFIRMED.
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