USA v. Tavaris Deon Brown

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12570
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAVARIS DEON BROWN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:21-cr-00412-LSC-GMB-1
____________________
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2 Opinion of the Court 22-12570
Before J ORDAN , JILL P RYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Tavaris Deon Brown appeals the 120-month sentence im-
posed after he pled guilty to possessing ammunition as a felon. On
appeal, Brown argues that his sentence was unreasonable. After
careful consideration, we affirm.
I.
This case arises out of an incident when Brown fired a gun
multiple times at a moving vehicle. In April 2021, Tuscaloosa police
received a report of gunshots at an apartment complex. When of-
ficers arrived on the scene, they found six shell casings in a parking
lot. Several witnesses at the scene identified Brown as the shooter.
As part of their investigation, law enforcement obtained sur-
veillance video from the apartment complex. The surveillance
video showed a Chevrolet Tahoe arrive at the complex and park in
front of one of the apartment buildings. After the Tahoe arrived,
Brown exited a nearby apartment building, walked across the park-
ing lot, and tried to speak to two women (later identified as his ex-
girlfriend and her mother). The women ignored Brown, entered a
sedan parked next to the Tahoe, and drove away; the Tahoe fol-
lowed. As the Tahoe drove past Brown, he reached into his waist-
band and pulled out a gun. He shot at the Tahoe several times.
A grand jury returned an indictment charging Brown with
being a felon in possession of ammunition, in violation of 18 U.S.C.
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22-12570 Opinion of the Court 3
§ 922(g)(1). He pled guilty. In the plea agreement, the government
agreed to recommend a sentence within the applicable guidelines
range, but the plea agreement noted that this recommendation was
not binding on the court.
Prior to the sentencing hearing, the probation office pre-
pared a presentence investigation report (“PSR”). The PSR de-
scribed the facts of the offense. It also discussed Brown’s personal
history, including that he grew up in housing projects where he
was exposed to violence, guns, and drugs at a young age.
The PSR also recounted Brown’s criminal history. In 2010,
when Brown was 19 years old, he pled guilty to four counts of first-
degree robbery in Alabama. These convictions arose out of a single
incident when Brown, along with two other men, forced their way
into an apartment. During the invasion, Brown “pulled a pistol” on
one of the victims. Doc. 15 at 11.1 He and the two other men stole
clothing, money, and cellular phones from the victims. They also
“patted down” two female victims, placing “their hands on the vic-
tims’ breasts, buttocks, and in their crotch areas.” Id. (internal quo-
tation marks omitted). For each count, Brown received a sentence
of “15 years custody, split to serve 3 years” as well as five years of
probation. Id. at 10. After spending three years in custody, Brown
began to serve his term of probation.
About two years into his term of probation, Brown was in-
volved in another incident with a firearm. According to the PSR,
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-12570
Brown intended to cause the death of a victim “by shooting him in
the back of the head and/or shooting in his direction several
times.” Id. at 17. Brown was initially charged with attempted mur-
der in Alabama state court but later pled guilty to second-degree
assault. He was sentenced to 15 years in custody. In January 2021,
after completing approximately five years of the sentence, Brown
was released from prison.
About three months after being released from prison,
Brown shot at the Tahoe. At the time of the shooting, Brown was
still on probation for the robbery offenses.
The PSR also noted that Brown had probation revocation
proceedings pending in Alabama state court. A few weeks after
Brown shot at the Tahoe, officers received a report of a domestic
dispute at the same apartment complex. At the apartment com-
plex, officers found Brown sitting in a chair in the parking lot with
his feet propped up on a vehicle that did not belong to him and
threatening other residents. The officers arrested Brown and
charged him with disorderly conduct. As a result of this incident,
Brown also was charged in Alabama state court with violating the
terms of his probation. At the time of his sentencing in federal
court, the state court had not yet imposed a sentence for Brown’s
probation violation.
The PSR also calculated Brown’s guidelines range. It as-
signed Brown a base offense level of 20 because he committed the
offense of being a felon in possession of ammunition and had a
prior felony conviction for a crime of violence (Alabama robbery).
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22-12570 Opinion of the Court 5
See U.S. Sent’g Guidelines Manual § 2K2.1(a)(4)(A) (assigning base
offense level of 20 for the unlawful possession of a firearm or am-
munition when “the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of either a
crime of violence or a controlled substance offense”).
The PSR also applied a four-level enhancement because
Brown possessed ammunition in connection with another felony
offense. See id. § 2K2.1(b)(6)(B). The PSR reported that Brown had
committed a felony when he shot into the occupied Tahoe. After
applying a reduction for acceptance of responsibility, see id. § 3E1.1,
the PSR calculated Brown’s total offense level as 21.
Based on this total offense level and Brown’s criminal his-
tory category of V, the PSR calculated his guidelines range as 70 to
87 months’ imprisonment. It reported that the applicable statutory
maximum was 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2).
At the sentencing hearing, there were no objections to the
PSR, and the district court adopted its factual statements as well as
its guidelines calculations. The court then advised the parties that
it was “greatly concerned” about the case. Doc. 27 at 3. Based on
Brown’s prior convictions and his conduct in this case, the court
stated that it appeared that Brown did not “hesitate” to “us[e] a fire-
arm and shoot[] at people.” Id. at 5. The court stated that the case
“scream[ed] out for” a statutory maximum sentence. Id. at 4–5.
The court then gave the parties the opportunity to present
evidence. The government called one witness, Susan Curvin, the
Tuscaloosa police officer who investigated the shooting at the
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6 Opinion of the Court 22-12570
apartment complex. She described her investigation of the shoot-
ing. She explained that Brown did not end up facing any state
charges arising out of the shooting because the owner of the Tahoe
would not speak with police. During her testimony, the court ad-
mitted into evidence the surveillance video that showed Brown
shooting at the Tahoe. Brown did not call any witnesses.
Brown urged the court to impose a sentence within the
guidelines range. He asked the court to consider that he had grown
up in a violent neighborhood. He acknowledged that the circum-
stances of his upbringing did not excuse his conduct but argued that
they weighed against a statutory maximum sentence. Brown also
pointed out that he had accepted responsibility for being a felon in
possession of ammunition. Like Brown, the government asked the
court to impose a sentence within the guidelines range.
Ultimately, the district court decided to vary upward from
Brown’s guidelines range and imposed the statutory-maximum
sentence of 120 months. In imposing the sentence, the court relied
on several of the applicable sentencing factors from 18 U.S.C.
§ 3553(a),2 including Brown’s history and characteristics, the
2 Under § 3553(a), a district court is required to impose a sentence “sufficient,
but not greater than necessary, to comply with the purposes” of the statute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness
of the offense; promote respect for the law; provide just punishment; deter
criminal conduct; protect the public from the defendant’s future criminal con-
duct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment. Id. § 3553(a)(2). The
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22-12570 Opinion of the Court 7
nature and circumstances of the offense, the seriousness of the of-
fense, the need to afford adequate deterrence, and the need to pro-
tect the public from future crimes.
The court explained that Brown’s conduct involved shoot-
ing into the Tahoe and noted that he could have killed the driver
of the vehicle or bystanders. It also recounted his criminal history.
The court discussed how Brown previously had robbed multiple
victims while carrying a firearm. The court noted that during this
crime, Brown had “physically assaulted” and “probably sexually as-
sault[ed]” two female victims. Id. at 27. The court also observed
that Brown received a “light sentence” for the robbery because he
was required to serve only three years in custody. Id. at 28.
The court also reviewed the incident when Brown pled
guilty to assault in the second degree. It explained that in this inci-
dent Brown had shot in the victim’s direction. The court again
noted that Brown did not spend “very much time in custody” for
this offense. Id at 29.
The court focused on the similarity between the most recent
shooting and Brown’s prior offenses because in all three incidents
Brown used a firearm. And the court compared the most recent
shooting to the assault case because on both occasions Brown shot
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
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8 Opinion of the Court 22-12570
a firearm in the direction of another person. Given that Brown’s
previous sentences had not deterred him, the court stated that a
lengthy prison sentence was needed before Brown killed or seri-
ously hurt someone. According to the court, Brown “deserve[d]
significantly more time” than 120 months’ imprisonment, but the
court was bound by the statutory maximum. Id.
Brown asked the court to direct that his sentence would run
concurrent to any sentence imposed in Alabama state court in con-
nection with his probation revocation. The court refused to do so,
saying Brown would not “get any credit for the other sentence
against this sentence.” Id. at 32.
This is Brown’s appeal.
II.
We review the reasonableness of a sentence under a defer-
ential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38,
41 (2007).
III.
On appeal, Brown challenges his 120-month sentence,
which involved an upward variance, as substantively unreasona-
ble. But we cannot say that the district court abused its discretion
in imposing this sentence.
When reviewing for substantive reasonableness, we ordi-
narily will vacate a sentence “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
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22-12570 Opinion of the Court 9
sentence that lies outside the range of reasonable sentences dic-
tated by the facts of the case.” United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
“The weight given to any specific § 3553(a) factor is committed to
the sound discretion of the district court.” United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016).
In addition, a “district court has considerable discretion in
deciding whether the § 3553(a) factors justify a variance and the
extent of the variance.” Id. When the sentence imposed involves
an upward variance, we “may not apply a presumption of unrea-
sonableness” and “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. In addition, the “fact that [we]
might reasonably have concluded that a different sentence was ap-
propriate is insufficient to justify reversal of the district court.” Id.
After considering the record, we are not left with a definite
and firm conviction that the district court committed an error of
judgment when it decided to vary upward and impose a 120-month
sentence. At the sentencing hearing, the district court carefully con-
sidered the applicable § 3553(a) factors. It discussed in detail
Brown’s history and characteristics, including his earlier criminal
convictions, as well as the nature and circumstance of his current
offense when he shot at the Tahoe. The district court also con-
cluded that an upward variance was needed to reflect the serious-
ness of the offense, to afford adequate deterrence, and to protect
the public. As the court observed, Brown had previously
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10 Opinion of the Court 22-12570
committed other crimes involving firearms and received relatively
light sentences. Because those punishments had not deterred
Brown, the district court concluded that a longer sentence was nec-
essary. On this record, the district court’s 120-month sentence was
not unreasonable. See United States v. Shaw, 560 F.3d 1230, 1241
(11th Cir. 2009) (affirming an 83-month upward variance in felon-
in-possession case when the defendant had previously committed
other firearms-related offenses and received shorter sentences that
had not deterred him from engaging in future criminal conduct).
Brown nevertheless argues that his sentence was unreason-
able because the district court’s decision to impose an upward var-
iance was based on “two main factors—the nature of the instant
offense and [his] criminal history,” which were “already accounted
for in [his] guidelines range.” Appellant’s Br. at 12–13. But the dis-
trict court was permitted to look to the nature and circumstances
of the offense along with Brown’s criminal history when imposing
an upward variance, even if it relied on similar considerations in
calculating his guidelines range. See United States v. Amedeo, 487 F.3d
823, 834 (11th Cir. 2007) (affirming sentence that involved an up-
ward variance because it was “reasonable for the district court to
rely on certain aspects of [the defendant’s] conduct . . . that it had
already considered in imposing an enhancement”).
In addition, Brown argues that the district court should have
given greater weight to mitigating factors, including his difficult
upbringing and his acceptance of responsibility. But a district court
retains discretion to determine how much weight to assign to any
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22-12570 Opinion of the Court 11
particular § 3553(a) factor. See Croteau, 819 F.3d at 1309. Because
the district court did not abuse its discretion, we affirm.
AFFIRMED.
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