USA v. Santonio Laroy Foster

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11276
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTONIO LAROY FOSTER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00378-MHC-1
____________________
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2 Opinion of the Court 22-11276
Before WILSON, B RANCH, and L UCK , Circuit Judges.
PER CURIAM:
Santonio Foster accepted a binding plea agreement and
pleaded guilty to two counts of knowingly possessing a stolen fire-
arm. Pursuant to the plea agreement, he was sentenced to 96-
months of imprisonment. Foster now appeals his sentence, argu-
ing the district court failed to articulate why the court entered a
sentence much higher than the guidelines range. After careful re-
view, we AFFIRM.
I.
In 2019, a grand jury returned a superseding indictment
charging Foster with two counts of being a felon in possession of a
firearm in violation of 18 U.S.C. § 924(e). Foster pleaded guilty pur-
suant to a binding plea agreement under Fed. R. Crim. P.
11(c)(1)(C). Under the plea agreement, the parties jointly recom-
mended a sentencing range of 96–120 months, stipulating that this
range was reasonable under 18 U.S.C. § 3553(a).
The initial sentencing calculations totaled an offense level of
27. The corresponding sentencing recommendation was 120–150
months of imprisonment. At the sentencing hearing, Foster ob-
jected to the enhancements calculated into his offense level. The
district court sustained the objections, ultimately altering the cal-
culation to a new offense level of 21. The new corresponding sen-
tencing recommendation was 70–78 months of imprisonment.
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22-11276 Opinion of the Court 3
The district court sentenced Foster to a concurrent 96-month im-
prisonment.1 The court expressly considered the § 3553(a) factors
at the hearing and found that “the sentence meets the criteria of
punishment, deterrence and incapacitation, and is sufficient but not
greater that necessary to meet the objectives of Section § 3553(a).”
Specifically, the court explained that the nature and circumstances
of the offense made the sentence reasonable because Foster was a
convicted felon and plead guilty to a “serious offense and it calls for
a serious sentence.” Additionally, the court found that although
Foster’s history and characteristics exhibit mitigating factors, his re-
peated decisions to be involved in criminal activity as an adult war-
ranted punishment. The court also considered the need to afford
adequate deterrence and found that a 96-month sentence is enough
for both specific and general deterrence. Lastly, the court noted
that it considered the kinds of sentencing, the range established set
forth in the guidelines, and the need to avoid sentence disparity.
Foster now appeals his sentence.
II.
“Where a defendant raises a sentencing argument for the
first time on appeal, we review for plain error.”
United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Under this
1 Foster was also sentenced to three years supervised release, and a special
assessment of $200.
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4 Opinion of the Court 22-11276
standard, “(1) there must be error; (2) the error must be plain; and
(3) the error must affect substantial rights.”
Id. (citation omitted).
Upward variances are imposed based upon the § 3553(a) fac-
tors.
See, e.g., United States v. Overstreet, 713 F.3d 627,
637–38 (11th Cir. 2013). A sentencing court may impose an up-
ward variance based upon uncharged conduct, as it relates to the
history and characteristics of the defendant, and the need to pro-
mote respect for the law, afford adequate deterrence, and protect
the public.
Id. at 637–38.
III.
Foster argues that the district court plainly erred because it
failed to articulate why the upward variance was necessary and
just. Because the court lowered the guideline range to 70–78
months, it should have sentenced Foster within that range or spe-
cifically justified the upward variance to 96–months. We hold
that the court made a proper justification and therefore there is
no plain error.
First, the court properly justified the sentence with the
§ 3553(a) factors. It detailed why it thought a 96-month sentence
was necessary in light of Foster’s history and characteristics, to
achieve adequate deterrence, and to protect the public.
Id. Sec-
ond, the sentence was justified because the parties jointly agreed
that 96 months was reasonable under the § 3553(a) factors, and
defense counsel specifically requested a 96–month sentence at the
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22-11276 Opinion of the Court 5
sentencing hearing
after the guideline range was readjusted. Ac-
cordingly, we find no error.
AFFIRMED.
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