USCA11 Case: 22-10596 Document: 35-1 Date Filed: 03/28/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10596
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAKARIS WAVELON CLEMONS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80102-AMC-1
____________________
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2 Opinion of the Court 22-10596
Before BRANCH, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Jakaris Clemons appeals the 50-month sentence imposed af-
ter Clemons pleaded guilty to being a felon in possession of a fire-
arm, in violation of 18 U.S.C. § 922(g)(1). Clemons’s advisory
guidelines range was calculated as 21 to 27 months’ imprisonment.
No reversible error has been shown; we affirm.
I.
On appeal, Clemons first contends that his above-guidelines
sentence represented an upward departure -- not an upward vari-
ance -- from the advisory guidelines range. Based on this charac-
terization, Clemons argues that the district court procedurally
erred by failing to provide advance notice and by failing to comply
with the procedures set forth in the departure provision in U.S.S.G.
§ 4A1.3.
A “variance” refers to “a sentence imposed outside the
guidelines range when the court determines that a guidelines sen-
tence will not adequately further the purposes reflected in 18
U.S.C. § 3553(a).” See United States v. Hall, 965 F.3d 1281, 1295
(11th Cir. 2020). “A departure, by contrast, is ‘a term of art under
the Guidelines and refers only to non-Guidelines sentences im-
posed under the framework set out in the Guidelines,’ including
the departure provisions.” Id.
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22-10596 Opinion of the Court 3
In determining whether an above-guidelines sentence is the
result of a variance or a departure, we look to the district court’s
stated reasons, including whether the district court “cited a specific
guidelines departure provision” or, instead, based its rationale “on
the § 3553(a) factors and a determination that the guidelines range
was inadequate.” Id. (concluding that the district court applied an
upward variance when the district court said it was varying up-
ward, the district court’s reasons were “grounded in the § 3553(a)
sentencing factors,” and the district court made no reference to a
guideline departure provision).
Here, the district court’s stated reasons for sentencing
Clemons above the guidelines range demonstrate clearly that
Clemons’s sentence constitutes an upward variance. First, the dis-
trict court said expressly that it was imposing an upward variance
and not an upward departure. The district court’s language and
stated reasons further reflect the district court’s intention to apply
an upward variance. In imposing the chosen sentence, the district
court explained -- based on its “holistic evaluation of the 3553(a)
factors” -- that a within-guidelines sentence would be “clearly inad-
equate to reflect the statutory factors in 3553(a), specifically the
need to deter you from committing more crimes, [and] the need to
protect the public from your dangerous conduct.” Never did the
district court refer to a departure provision.
That the adequacy of Clemons’s criminal history category
might also be a factor pertinent to a departure provision does not -
- by itself -- make Clemons’s sentence a departure. See id. at 1297
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(“What matters is that the grounds the district court gave for vary-
ing above the guidelines range fit comfortably under the § 3553(a)
provisions; it doesn’t matter whether they might also have fit un-
der a departure provision.”).
Because we conclude that Clemon’s above-guidelines sen-
tence was the result of an upward variance, we reject Clemons’s
arguments that the district court procedurally erred by failing to
comply with the established procedures for imposing an upward
departure.
II.
Clemons next challenges the substantive reasonableness of
his above-guidelines sentence.
We evaluate the substantive reasonableness of a sentence --
whether inside or outside the guidelines range -- under a deferential
abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38,
51 (2007). In reviewing the substantive reasonableness of a sen-
tence, we consider the totality of the circumstances and whether
the sentence achieves the purposes of sentencing stated in 18
U.S.C. § 3553(a). See United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008).
The purposes of sentencing include promoting respect for
the law, providing just punishment, deterring criminal conduct,
and protecting the public from further crimes. 18 U.S.C. §
3553(a)(2). A sentencing court should also consider the nature and
circumstances of the offense, the history and characteristics of the
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22-10596 Opinion of the Court 5
defendant, the kinds of sentences available, the guidelines range,
policy statements of the Sentencing Commission, and the need to
avoid unwarranted sentencing disparities. Id. § 3553(a)(1), (3)-(7).
When a sentence is above the guidelines range, we “may
consider the extent of the deviation, but must give due deference
to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Gall, 552 U.S. at 51. “We may
vacate a sentence because of the variance 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 reasonable sentences dic-
tated by the facts of the case.’” United States v. Shaw, 560 F.3d
1230, 1238 (11th Cir. 2009). “The party challenging a sentence has
the burden of showing that the sentence is unreasonable in light of
the entire record, the § 3553(a) factors, and the substantial defer-
ence afforded sentencing courts.” United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
At Clemons’s sentencing hearing, the district court adopted
in full the Presentence Investigation Report and heard arguments
from both parties about the appropriate sentence. The district
court also heard testimony from Clemons and from witnesses on
Clemons’s behalf asking the court to give Clemons another chance.
In announcing the chosen sentence, the district court first
discussed Clemons’s “very troubling” criminal record, which the
district court said reflected a “pattern of violent behavior and pos-
session of firearms.” The district court noted that Clemons’s
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6 Opinion of the Court 22-10596
criminal history included five juvenile adjudications, including ad-
judications for obstructing an officer without violence, attempted
robbery with a weapon, and two offenses each for battery and for
aggravated assault. The district court then described Clemons’s
adult criminal record: a record that included 11 adult convictions
between 2009 and 2016. Among other things, Clemons had two
prior convictions for being a felon in a possession of a firearm. The
district court also noted that Clemons committed the instant of-
fense while on supervised release from his most recent firearm con-
viction.
Seemingly in response to Clemons’s request that he be given
another chance, the district court remarked that Clemons had “re-
ceived actually many chances to correct [his] behavior, but . . . [had]
returned to committing criminal conduct.” The district court then
determined that a within-guidelines sentence would be “clearly in-
adequate” to further the purposes of sentencing set forth in section
3553(a).
Given the totality of the circumstances -- including
Clemons’s extensive criminal history -- the district court deter-
mined reasonably that a sentence of 50 months was necessary to
provide just punishment, to provide adequate deterrence, and to
protect the public. Although Clemons was sentenced substantially
above his advisory guidelines range of 21 to 27 months, we have
affirmed as reasonable upward variances of a similar degree, partic-
ularly in cases involving extensive and violent criminal records.
See, e.g., United States v. Riley, 995 F.3d 1272, 1280-81 (11th Cir.
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22-10596 Opinion of the Court 7
2021) (affirming an upward variance to 70 months from a guide-
lines range of 12 to 18 months for being a felon in possession of a
firearm based on the defendant’s history of violent offenses and re-
cidivism); Rosales-Bruno, 789 F.3d at 1256-57 (affirming as reason-
able a 87-month sentence where the advisory guidelines range was
21 to 27 months); Shaw, 560 F.3d at 1239-41 (affirming as reasona-
ble a 120-month sentence for being a felon in possession of a fire-
arm -- an upward variance over 3 times the applicable guideline
range of 30 to 37 months -- based chiefly on the defendant’s crimi-
nal history and recidivism). That Clemons’s sentence is well below
the statutory maximum sentence of ten years’ imprisonment is also
indicative of reasonableness. See Gonzalez, 550 F.3d at 1324.
Contrary to Clemons’s assertion, a district court may con-
sider a defendant’s criminal history in deciding to apply an upward
variance even though the defendant’s criminal history is somewhat
accounted for in the advisory guidelines range. See Riley, 995 F.3d
at 1279 (“[P]lacing substantial weight on a defendant’s criminal rec-
ord is entirely consistent with § 3553(a) because five of the factors
it requires a court to consider are related to criminal history.”). We
also reject Clemons’s unsupported contention that -- in varying up-
ward under section 3553(a) -- the district court was still required to
adhere to the procedure set forth in U.S.S.G. § 4A1.3 for imposing
an upward departure.
On this record, Clemons has failed to show that his above-
guidelines sentence was procedurally or substantively
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unreasonable or that “the district court committed a clear error of
judgment in weighing the § 3553(a) factors.” See Shaw, 560 F.3d at
1238.
AFFIRMED.