USCA11 Case: 22-12585 Document: 25-1 Date Filed: 10/19/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12585
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN SHERWOOD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cr-00055-TES-CHW-1
____________________
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2 Opinion of the Court 22-12585
Before BRANCH, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
Steven Sherwood appeals his above-guidelines sentence of
72 months’ imprisonment imposed after he pleaded guilty to
possession of a firearm by a convicted felon. He argues that the
sentence is substantively unreasonable. After review, we affirm.
I. Background
In August 2020, police pulled Sherwood over for failing to
come to a complete stop at a stop sign. Sherwood did not have car
insurance, and the police informed him that his car would be
towed. During the inventory search of the vehicle, police
discovered a marijuana grinder, a glass jar containing marijuana
and methamphetamine powder, a perfume bottle, “a Swisher
Sweet blunt pack,” 109 tablets (some of which later tested positive
for being methamphetamine), digital scales, and “packaging
materials.” When officers went to arrest Sherwood, he attempted
to flee, and was apprehended after a brief physical struggle with
officers. Officers discovered a loaded gun on Sherwood’s person.
Sherwood later commented during booking that he was a
convicted felon.
A grand jury charged Sherwood with possession with intent
to distribute methamphetamine (Count 1), possession of a firearm
during a drug-trafficking crime (Count 2), and possession of a
firearm by a convicted felon (Count 3). Sherwood pleaded guilty
to possession of a firearm by a convicted felon, pursuant to a
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22-12585 Opinion of the Court 3
written plea agreement, and the government agreed to dismiss the
remaining counts.
Prior to sentencing, the United States Probation Office
prepared a presentence investigation report (“PSI”), which
revealed that Sherwood, then age 39, had a criminal history dating
back to the age of 17 involving drugs and firearms, and some of this
history did not score criminal history points due to the age of the
offenses. 1 Sherwood’s resulting guidelines range was 46 to 57
months’ imprisonment, and he faced a statutory maximum of 10
years’ imprisonment. Finally, the Probation Office noted that
“factors [were] present that would [ordinarily] warrant an upward
variance,” namely, that Sherwood “ha[d] demonstrated a pattern
of similar/identical criminal conduct.” In particular, the probation
officer highlighted Sherwood’s “prior federal conviction for Felon
in Possession of a Firearm and Using and Carrying a Firearm
During and In Relation to a Drug Trafficking Crime” and explained
that
[h]ad Sherwood’s term of supervised release not been
terminated early he would have been assessed two
1 Sherwood had the following convictions: (1) 1999—(age 17)—distribution
of cocaine, which scored zero criminal history points; (2) 2000—(age 18)—
possession of marijuana, which scored zero criminal history points; (3) 2002—
(age 20)—possession of crack cocaine, which scored zero criminal history
points; (4) 2004—age 22—felon in possession of a firearm and using and
carrying a firearm in relation to a drug-trafficking crime, which scored three
criminal history points; and (4) 2018—(age 35)—possession of ecstasy, which
scored one criminal history point.
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4 Opinion of the Court 22-12585
additional criminal history points. It [was] further
noted, [that] Sherwood ha[d] two previous felony
convictions, Distribution of Cocaine and Possession
[of ] Crack Cocaine. Both of these offenses [were] not
counted but related to similar offense/conduct of the
instant offense.
(sixth alteration in original).
Sherwood objected to the probation officer’s assertion that
an upward variance might be warranted, arguing that the
guidelines range accurately represented his criminal history.
Furthermore, he maintained that, even if he had been assessed the
two additional criminal history points highlighted by the probation
officer, his criminal history category would have remained the
same (Category III). In response, the probation officer maintained
her position that an upward variance might be warranted,
reasoning as follows:
Sherwood has demonstrated through habitual
convictions that there has been no adequate
deterrence for future criminal conduct. This is
Sherwood’s second federal offense, and the conduct
of both convictions are similar. As noted in the
instant offense, Sherwood was found with a firearm
in addition to a large quantity of methamphetamine
and marijuana. When law enforcement attempted to
arrest Sherwood, he failed to comply. His conduct
resulted in one law enforcement officer being
transported to the hospital for injuries. Although
Sherwood’s Criminal History Category reflects prior
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22-12585 Opinion of the Court 5
sentences, it does not reflect the nature of the
offenses, pattern of conduct, or other characteristics
not otherwise captured in criminal history
calculation(s). The Court, in United States v. Mathis,
No. 20-14819, 2021 WL 4912459 (11th Cir. Oct. 21,
2021) upheld an upward variance from the guideline
sentencing range due to a defendant’s criminal
history to include the fact the defendant had been
previously convicted [federally] of a similar offense.
(alteration in original).
At sentencing, Sherwood’s counsel reiterated that the
guidelines range accounted adequately for Sherwood’s criminal
history, and, therefore a within-guidelines sentence was
appropriate.
The government, in turn, argued that although the facts of
the underlying offense were “relatively vanilla,” the district court
should vary upward from the guidelines range because of
Sherwood’s criminal history. The government pointed out that
Sherwood was not on probation or supervised release at the time
of the present offense only because the court had terminated his
supervision early in large part because Sherwood had become a
“problem for supervision” and had “refused to comply.” The
government argued that, considering this fact in conjunction with
Sherwood’s lengthy criminal history for the same variety of
offenses, an upward variance was appropriate in light of the
sentencing factors in 18 U.S.C. § 3553(a). The government
maintained that an above-guidelines sentence was necessary to
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6 Opinion of the Court 22-12585
achieve deterrence in this case and because Sherwood had
demonstrated that he was “unable and unwilling to comply” with
supervised release conditions and continued to engage in
“unrepentant conduct.”
Sherwood’s counsel then emphasized that two of
Sherwood’s prior convictions from when he was younger involved
very small amounts of drugs and his other prior convictions all
centered around drug possession, which indicated that Sherwood
had a drug addiction problem, not that he was a distributor of
drugs. She acknowledged that the same could not be said for the
amount of drugs found in Sherwood’s possession in the present
case, but nevertheless maintained that a within-guidelines sentence
was appropriate.
Sherwood then made a statement to the court that he had
“learned [his] lesson” and that he had “tr[ied] [his] best to stay out
of trouble” and “just . . . got caught up in the unfortunate
circumstance.” He stated that with “COVID-19 and everything
going on at [that] time” he had “made some bad decisions,” and he
asked the court for mercy. He noted that, since his release from
prison, he had been employed in “several jobs” and he had “tried
to stay on the right path.”
The district court then noted that the last time Sherwood
was on supervised release, it had terminated his supervision early
because it seemed like Sherwood was “going to do what [he] felt
like doing, and it was a waste of everybody’s time” to keep him on
probation. So the court “turned [him] loose,” but now Sherwood
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22-12585 Opinion of the Court 7
was back before the district court for the same thing—guns and
drugs. The district court noted that, “[s]o, I gave you a break last
time, and I will—I am man enough to say that was a horrible
mistake. I missed it. But I will not miss it again. That I will not
miss.” The district court stated that the advisory guidelines range
was 46 to 57 months’ imprisonment. The district court then
explained that after considering the § 3553(a) factors—particularly,
“the need for the sentence to afford adequate deterrence, reflect
the seriousness of the offense, promote respect for the law, and
provide just punishment” and the “nature of [Sherwood’s] prior
arrests and convictions”—an upward variance was appropriate.
Accordingly, the district court sentenced Sherwood to 72 months’
imprisonment to be followed by three years supervised release. 2
Sherwood objected to the reasonableness of the sentence. This
appeal followed.
II. Discussion
Sherwood argues that the district court erred by imposing a
substantively unreasonable sentence and varied upward primarily
because of its “regret” in terminating his prior term of supervised
release early, which was an inappropriate consideration. He
maintains that the applicable advisory guidelines range accounted
2 Consistent with its statements at sentencing, the district court indicated in its
statement of reasons that the upward variance was appropriate given the
nature and circumstances of the offense, Sherwood’s history and
characteristics, including his “prior federal conviction” and “pattern of
criminal conduct,” and the need to reflect the seriousness of the offense,
promote respect for the law, and provide adequate deterrence.
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8 Opinion of the Court 22-12585
adequately for his criminal history and that a within-guidelines
sentence is appropriate and supported by the § 3553(a) sentencing
factors.
We review the reasonableness of a sentence under a
deferential abuse of discretion standard, asking whether the
sentence is substantively reasonable in light of the totality of the
circumstances. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court must issue a sentence that is “sufficient, but not
greater than necessary” to comply with the purposes of
§ 3553(a)(2), which include the need for a sentence to reflect the
seriousness of the offense, promote respect for the law, provide just
punishment, deter criminal conduct, and protect the public from
future criminal conduct. 18 U.S.C. § 3553(a)(2). The court must
also consider the “nature and circumstances of the offense and the
history and characteristics of the defendant,” and “the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.” Id.
§ 3553(a)(1), (6). When evaluating the history and characteristics
of the defendant, a court may properly consider a defendant’s
previous offenses, even where those offenses are already part of the
calculation of his guidelines range. See United States v. Williams, 526
F.3d 1312, 1324 (11th Cir. 2008).
Importantly, the weight given to a particular § 3353(a) factor
“is committed to the sound discretion of the district court,” and it
is not required to give “equal weight” to the § 3553(a) factors.
United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015)
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22-12585 Opinion of the Court 9
(quotation omitted). “We will not second guess the weight given
to a § 3553(a) factor so long as the sentence is reasonable under the
circumstances.” United States v. Butler, 39 F.4th 1349, 1355 (11th
Cir. 2022).
A district court “imposes a substantively unreasonable
sentence only 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.” Rosales-Bruno, 789
F.3d at 1256 (quotations omitted). The burden rests on the party
challenging the sentence to show “that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and
the substantial deference afforded sentencing courts.” Id.
No presumption of reasonableness or unreasonableness
applies to a sentence that lies outside the advisory guidelines range.
Butler, 39 F.4th at 1355. “Upward variances are imposed based
upon the § 3553(a) factors.” Id. The district court may “impose an
upward variance if it concludes that the [g]uidelines range was
insufficient in light of a defendant’s criminal history. When doing
so, [the] district court[] [is] afforded broad leeway in deciding how
much weight to give to prior crimes the defendant has committed.”
Id. at 1355–56 (quotations and internal citation omitted); see also
United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (“Courts
have broad leeway in deciding how much weight to give to prior
crimes the defendant has committed, and [p]lacing substantial
weight on a defendant’s criminal record is entirely consistent with
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10 Opinion of the Court 22-12585
§ 3553(a) because five of the factors it requires a court to consider
are related to criminal history.” (alteration in original) (quotations
and internal citation omitted)). “[A] district judge must give
serious consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a particular
case with sufficient justifications.” Gall, 552 U.S. at 46.
In reviewing the reasonableness of a sentence outside 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.” Id.
at 51. “The fact that [we] might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal
of the district court.” Id. at 51. Rather, we will “vacate the sentence
if, but 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 dictated by the facts of the case.’”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
Here, the district court did not abuse its discretion in varying
upward from the applicable guidelines range of 46 to 57 months’
imprisonment and imposing a sentence of 72 months’
imprisonment. Contrary to Sherwood’s argument, the district
court did not impose an upward variance simply because it
regretted terminating Sherwood’s supervised release early in a
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prior case. Rather, the district court explained that an upward
variance was appropriate because of Sherwood’s history and
characteristics and his repeated recidivism (i.e., the fact that
Sherwood’s instant offense was similar to his prior offenses,
including the offense for which he had been on supervised release
previously). “A court that weighs heavily a defendant’s criminal
history has acted within its discretion,” and, when, as here, a
defendant is a recidivist, “the court may correctly conclude that
previous punishment for criminal conduct failed to deter him and
that a harsher sentence is warranted.” Riley, 995 F.3d at 1280. The
district court also stated that it had considered the remaining
§ 3553(a) factors and that those factors supported the upward
variance, particularly, “the need for the sentence to afford adequate
deterrence, reflect the seriousness of the offense, promote respect
for the law, and provide just punishment.” “Under substantive
reasonableness review, we have repeatedly affirmed sentences that
included major upward variances from the guidelines for
defendants with significant criminal histories that the sentencing
courts weighed heavily.” Id. at 1279 (collecting cases).
Furthermore, “[w]e have affirmed a sentence in which recidivism
was the single most important factor in the court’s decision to vary
upward, and we have recognized the Supreme Court has
consistently affirmed the imposition of longer sentences, even for
non-violent offenses, based on an offender’s recidivism.” Id.
(quotations and internal citation omitted).
Although Sherwood argues that the guidelines range
accounted adequately for his criminal history, the district court was
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entitled to consider Sherwood’s prior offenses even if they were
already part of the guidelines calculation. Williams, 526 F.3d at
1324. While Sherwood quarrels with the weight the district court
gave to the § 3553(a) factors and the way in which the court applied
them to his case, it was within the district court’s discretion to give
more weight to one § 3553(a) factor—Sherwood’s history and
characteristics—than it gave to the others. Rosales-Bruno, 789 F.3d
at 1254. Moreover, Sherwood’s sentence is well-below the
statutory maximum of 10 years’ imprisonment, which is an
indicator of reasonableness. See United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008) (explaining that a sentence that is below
the statutory maximum is an indicator of reasonableness).
Accordingly, we are not “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 dictated by the
facts of the case.” Irey, 612 F.3d at 1190 (en banc) (quotation
omitted). Consequently, we conclude that Sherwood’s sentence is
substantively reasonable, and we affirm the district court.
AFFIRMED.