USA v. Nathaniel Harrington

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13404
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHANIEL HARRINGTON,
a.k.a. Nathaniel Cannon, Jr.,
a.k.a. Nay Nay,
Defendant-Appellant.
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2 Opinion of the Court 21-13404
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00345-WFJ-SPF-1
____________________
Before J ILL PRYOR , BRANCH, and BLACK , Circuit Judges.
PER CURIAM:
Nathaniel Harrington appeals his 104-month sentence for
possession of a firearm in furtherance of a drug-trafficking crime.
He contends the district court’s upward variance from the
60-month mandatory minimum sentence resulted in a substan-
tively unreasonable sentence. After review,1 we affirm Harring-
ton’s sentence.
When examining the substantive reasonableness of a sen-
tence, we consider the totality of the circumstances and the
§ 3553(a) factors.
United States v. Trailer, 827 F.3d 933, 936 (11th
Cir. 2016). The district court abuses its discretion if, among other
things, it commits a clear error of judgment when considering the
proper factors or gives significant weight to improper or irrelevant
factors.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(
en banc).
1 We review for abuse of discretion the reasonableness of a district court’s
sentence.
United States v. Trailer, 827 F.3d 933, 935-36 (11th Cir. 2016).
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21-13404 Opinion of the Court 3
The district court must impose a sentence that is sufficient,
but not greater than necessary, to comply with the sentencing pur-
poses listed in § 3553(a)(2), including the need to reflect the serious-
ness of the offense, provide just punishment, and afford adequate
deterrence to criminal conduct. 18 U.S.C. § 3553(a)(2). The court
must also consider factors such as the nature and circumstances of
the offense, the history and characteristics of the defendant, and the
Guidelines range.
Id. § 3553(a)(1), (4). The weight given to any
§ 3553(a) factor is left to the sound discretion of the district court,
and we will not substitute our own judgment by reweighing those
factors.
United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir.
2013).
The district court did not impose a substantively unreason-
able sentence by varying upward and sentencing Harrington to 104
months’ imprisonment.
See Trailer, 827 F.3d at 935-36. Although
the district court emphasized Harrington’s criminal history, it was
entitled to place more weight on this factor than the Guidelines
did.
See United States v. Osorio-Moreno, 814 F.3d 1282, 1287-88
(11th Cir. 2016) (stating a district court does not abuse its discretion
by varying upward and placing more weight on a defendant’s crim-
inal history than on the Guidelines). This Court has upheld even
larger upward variances based solely on a defendant’s criminal his-
tory.
See id. at 1288;
see also United States v. Shaw, 560 F.3d 1230,
1241 (11th Cir. 2009) (upholding a 120-month statutory maximum
sentence despite a Guidelines range of 30 to 37 months for a de-
fendant who had been arrested 26 times).
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4 Opinion of the Court 21-13404
The district court stated it considered the § 3553(a) factors
and provided analysis. It highlighted the nature and circumstances
of the offense and Harrington’s characteristics when it discussed his
extensive criminal history, including his five previous drug-related
offenses. It concluded an upward variance was needed to protect
the public and provide adequate deterrence, as his prior sentences
had not adequately deterred him from committing subsequent
crimes. Accordingly, the district court did not abuse its discretion
in its § 3553(a) analysis.
See United States v. Tinker, 14 F.4th 1234,
1241 (11th Cir. 2021) (stating a district court need not address every
factor; rather, simply acknowledging that it considered the
§ 3553(a) factors and the parties’ arguments is sufficient).
As to Harrington’s argument the district court improperly
considered certain information outside of the plea agreement, the
district court was authorized to consider such evidence.
See
18 U.S.C. § 3661 (providing there are no limitations on the infor-
mation a sentencing court may receive and consider concerning
the background, character, and conduct of the person convicted of
an offense);
United States v. Maitre, 898 F.3d 1151, 1160 n.6 (11th
Cir. 2018) (explaining the sentencing court may consider un-
charged and acquitted conduct when determining the appropriate
sentence). While the government must prove by a preponderance
of the evidence a disputed fact contained in the PSI, Harrington
agreed to the drug quantities and factual proffer contained in the
plea agreement, which were later used in the PSI.
See United States
v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009) (explaining once a
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21-13404 Opinion of the Court 5
defendant objects to a fact in the presentence investigation report,
the government must prove that disputed fact by a preponderance
of the evidence). Further, although he objected to the PSI’s inclu-
sion of the Guidelines calculation for all of his charged offenses, he
did not object to the district court’s determination of the potential
Guidelines range of 117 months, which was higher than the PSI’s
60-month mandatory minimum Guideline sentences. His sentence
of 104 months’ imprisonment is lower than the statutory maxi-
mum for his offense, indicating reasonableness.
See United States
v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021) (stating an upward
variance well below the statutory maximum sentence indicates a
sentence is reasonable);
United States v. Smith, 967 F.3d 1196, 1215
(11th Cir. 2020) (providing the statutory maximum sentence for
possession of a firearm in furtherance of a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i), is life imprisonment).
Thus, because Harrington agreed to the drug quantities
through his plea agreement, did not object to the district court’s
Guidelines-range calculation of his charged conduct, and conceded
the court could consider his criminal history, the court did not con-
sider any disputed fact. The court was within its authority to con-
sider uncharged and acquitted conduct, as well as conduct unre-
lated to his offense of conviction as part of his history and charac-
teristics and other § 3553(a) factors. As such, it did not err in con-
sidering his extensive criminal history and the drug quantities in
the underlying offense conduct when it imposed the 44-month up-
ward variance.
Maitre, 898 F.3d at 1160 n.6;
United States v.
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6 Opinion of the Court 21-13404
Overstreet, 713 F.3d 627, 638 n.14 (11th Cir. 2013) (explaining even
if a defendant’s conduct is completely unrelated to his offense of
conviction, it may be considered as part of his history and charac-
teristics and other factors under § 3553(a) and, therefore, it may be
considered when imposing a variance). Accordingly, we affirm.
AFFIRMED.
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