USA v. Avery Lans

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14095
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AVERY LANS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cr-00092-RBD-DCI-2
____________________
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2 Opinion of the Court 22-14095
Before J ORDAN, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Avery Lans challenges his conviction and sentence for con-
spiracy to distribute cocaine. Lans makes several arguments on ap-
peal. First, he argues that there was insufficient evidence for his
conviction because the government failed to prove Lans knew he
was involved in a conspiracy to distribute cocaine, or alternatively,
that the government only showed a buyer-seller relationship. Sec-
ond, Lans argues that the district court should not have admitted
evidence obtained from his cell phone or from a storage unit be-
cause the evidence was irrelevant or, alternatively, more prejudi-
cial than probative. Third, Lans argues that the district court
plainly erred when it gave a deliberate ignorance instruction to the
jury because the government’s theory of the case was that Lans had
actual knowledge. Finally, Lans argues that his sentence was pro-
cedurally unreasonable because the district court clearly erred in
calculating his guideline range.
For the following reasons, we affirm.
I.
A grand jury charged Lans, along with co-conspirator
Wayne Stout, with one count of conspiracy to distribute and pos-
sess with intent to distribute five kilograms or more of cocaine, in
violation of 18 U.S.C. §§ 846 and 841(b)(1)(A). Lans pled not guilty.
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22-14095 Opinion of the Court 3
Prior to trial, the district court ordered the parties to file
jointly proposed jury instructions and to indicate if any proposed
instruction was in dispute. The government filed a document ti-
tled, “JOINTLY PROPOSED JURY INSTRUCTIONS,” which
stated that “[a]lthough the United States is filing this document,
both parties have reviewed its contents prior to its filing” and that
“[a]ll instructions are jointly proposed, other than Government
Proposed Instruction #6.” “Government Proposed Instruction
#6” is not relevant to this appeal. The government’s document
also contained “Jointly Proposed Instruction 12,” which was an in-
struction on when a defendant’s deliberate ignorance can establish
that the defendant acted knowingly.
The government also submitted an exhibit list before trial,
which included several exhibits “to be received in evidence by
agreement without objection.” These agreed-upon exhibits—ex-
hibits 29 to 34—included a set of photos, and both the court and
the government’s counsel referred to them as “joint exhibits.” At
the start of trial, the district court received the agreed upon exhibits
into evidence and were admitted without objection.
Lans, however, opposed another exhibit—exhibit 46—
which depicted text conversations allegedly between Lans and his
son, Olicity McMillan-Lans. Lans argued that this evidence was ir-
relevant, that its potential prejudice outweighed any relevance, and
that it should be excluded under Federal Rule of Evidence 404(b)
because it was evidence of bad acts by someone other than the de-
fendant. The government argued that this evidence was relevant
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4 Opinion of the Court 22-14095
because it would show that (1) McMillan-Lans, who had also been
charged with cocaine trafficking, connected Lans with Stout, (2)
that Lans and McMillan-Lans talked about cocaine trafficking “con-
stantly,” and that (3) McMillan-Lans sent Lans the address where
he met Stout on the day of Lans’s arrest. The district court over-
ruled Lans’s objection, explaining that because Lans entered a plea
of not guilty, he put at issue whether he had the knowledge and
intent to engage in a cocaine trafficking conspiracy and that the text
messages were relevant to those issues.
Turning to the government’s trial witnesses, the govern-
ment first called Carolina Martinez, a federal Homeland Security
Investigations (“HSI”) agent, who testified to the following. The
government was surveilling Stout as part of a money laundering
investigation. On June 1, 2022, Stout rented a bronze car and drove
from Miami, Florida, to Orlando, Florida. When he arrived in the
Orlando area, Stout went to a storage unit—which agents later dis-
covered was rented in his name—where he retrieved a duffel bag.
After leaving the storage unit, Stout went to an Orlando-area res-
taurant. A silver car pulled into the restaurant’s parking lot and left
after “a very brief amount of time.” Martinez followed the silver
car, which she said was driving in an unusual pattern, i.e., in a way
as if someone was trying to see if they were being followed and
trying to evade any followers. Martinez identified Lans as the
driver of the silver car.
The government next called Jean Saint-Louis, a Miami-area
police detective serving on a federal HSI task force, who testified
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22-14095 Opinion of the Court 5
to the following. Saint-Louis was part of the team surveilling Stout
on June 1. He observed that, when the silver car pulled into the
parking lot, Stout grabbed the duffel bag from his car and handed
it to Lans, who took the bag and placed it in the passenger seat of
the silver car. The entire interaction between Stout and Lans lasted
about thirty seconds. During cross-examination, Saint-Louis testi-
fied that no one on the team saw Lans open the duffel bag.
Next, the government called Pedro Villa, another Miami-
area detective with the task force, who testified to the following.
Villa was part of the June 1 surveillance team and observed Stout
as he traveled from the car rental place in Miami to the Orlando
storage facility. Villa saw coolers in the storage unit and suspected
there may be narcotics involved because, in his experience, narcot-
ics importers who bring drugs into the country by boat sometimes
use coolers to blend in with fishermen. While Villa followed Stout
to the restaurant, he did not observe what happened in the parking
lot. From there, Villa followed the silver car driven by Lans. At a
red light, Lans appeared to spot Villa in the car’s mirrors and, after
that, began to drive fast—up to 90 miles per hour. Villa then pur-
sued, activating his car’s lights and siren. While driving, Lans
dropped the duffel bag out the passenger-side window, and his car
was stopped seconds later. During Villa’s testimony, the govern-
ment presented photos showing the duffel bag on the side of the
road, with one photo showing the bag was slightly unzipped when
it was found. According to Villa, the bag contained 5 kilograms, or
about $135,000 worth, of cocaine wrapped in distinctive packaging,
and Villa stated that groups marked their cocaine to distinguish it
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6 Opinion of the Court 22-14095
from other organizations. Villa said that the amount of drugs
found in the bag was for distribution, not consumption.
The government then called Robert Palombo, a HSI agent,
who testified as follows. Palombo was part of the June 1 surveil-
lance team and later searched the storage unit that Stout visited.
The unit contained three coolers filled with 109 bricks of cocaine,
which were wrapped in different packing that signified they likely
belong to different organizations. One cooler contained bricks la-
beled and embossed with the same symbol as the bricks found in
the duffel bag. Exhibits 29 through 34 were photos of the storage
unit’s contents.
Finally, the government called Robert Picket, another task
force detective, who testified to the following. Lans was carrying
two cell phones when he was arrested, and from one of the phones,
investigators recovered a text message conservation on the appli-
cation, WhatsApp. One June 1, 2022, an unidentified sender mes-
saged Lans’s phone with the address of the restaurant where Stout
and Lans exchanged the duffel bag and immediately called Lans’s
phone. After reviewing the text conversation, investigators con-
cluded that the sender was McMillan-Lans because: (1) the sender
referred to Lans as “pop’s”; (2) the sender sent Lans a link to a court
document from McMillan-Lans’s criminal case1; and (3) on
1 Picket read from McMillan-Lans’s court document, which stated that he was
charged with drug possession and importation involving around 453.78 kilo-
grams of cocaine. The district court gave a limiting instruction for the injury
to only consider this document as it related to the charges against Lans.
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22-14095 Opinion of the Court 7
McMillan-Lans’s birthday, Lans sent the sender a message wishing
a happy “b day” and referring to the sender as “son.” This conver-
sation also contained shared links to news stories and court docu-
ments about cocaine trafficking and importation, which, to Picket,
went beyond a news interest in the topic and gave the impression
of “someone coaching somebody into how to do certain things and
what to do if you were caught doing them.” Further, McMillan-
Lans texted Lans the contact information for “Weezy 4,” who was
identified as Stout. The associated phone number was the same
number used to rent the storage unit. Lans and Stout called each
other four times on March 30, and car rental agreements and toll
road records indicated that the two both traveled around March 31,
2022. In Picket’s experience, drug traffickers often use applications
like WhatsApp, talk in code, limit what is communicated in writ-
ing, and use a burner phone. And Lans was using a burner phone
and attempted to hide his identity as the phone subscriber.
The government then rested, and Lans moved for judgment
of acquittal, arguing that the government had not proved Lans
knew what was in the duffel bag and therefore did not prove he
knowingly conspired to distribute cocaine. The district court de-
nied the motion. Lans presented no evidence and renewed his mo-
tion, which the court again denied.
Before closing arguments, the court held a charge confer-
ence and went through the revised jury instructions with both par-
ties. The court had proposed rewordings for some instructions,
including the deliberate ignorance instruction. Neither party
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8 Opinion of the Court 22-14095
objected to those changes or the inclusion of the deliberate igno-
rance instruction during the charge conference, and the jury re-
ceived a deliberate ignorance instruction. The jury found Lans
guilty. Lans moved for a new trial and renewed his motion for a
judgment of acquittal. The court denied these motions.
A probation officer prepared a presentence investigation re-
port (“PSI”). The original PSI stated that Lans’s offense involved
116.66 kilograms of cocaine and 32.65 grams of crack cocaine,
based on the drugs that were found in the storage unit with the
same packaging as the drugs in the duffel bag. Accordingly, his
base offense level was 34, pursuant to U.S.S.G. § 2D1.1(a)(5) and
(c)(3). The original PSI added two levels, pursuant to U.S.S.G.
§ 2D1.1(b)(12), because the offense involved the maintenance of a
premises for drug trafficking—the storage unit. Lans objected to
the drug amount, the base offense level, and the two-level increase
for maintaining for drug trafficking, among other factual objec-
tions.
Then, a probation officer prepared an amended PSI that re-
solved the objections, assigning him a base offense level of 30 based
only on the 5 kilograms of cocaine found in the duffel bag and re-
moving the two-level premises enhancement. Lans also received a
two-level enhancement for obstruction of justice because he “reck-
lessly created a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law enforcement of-
ficer.”
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The amended PSI included the following criminal history.
In 1989, Lans was charged with second-degree murder. The of-
fense involved Lans firing multiple shots at two individuals, and a
week later, when officers were arresting Lans, he was involved in
a shootout with police officers. He was sentenced to 40 years’ im-
prisonment, released on parole in 2009, and then pardoned in 2014.
In 2013, Lans was charged with armed assault after he pointed a
handgun at someone, threatened him, and struck him in both eyes
with a cell phone, but he was acquitted. The amended PSI also
noted that, in 2016, Lans was diagnosed with stage four prostate
cancer, which went into remission following treatment but re-
turned in 2020 and 2022.
With a total offense level of 32 and a criminal history score
of II, Lans’s guideline range was 135 to 168 months’ imprisonment.
The government objected to the amended PSI, essentially asking
the district court to reinstate the original PSI, with a base level of
34 based on the higher drug amount and the two-level premises
enhancement.
At the sentencing hearing, federal agent Brian Di Perna tes-
tified that of the about 100 cocaine bricks recovered from the stor-
age unit, 21 were similarly wrapped to the bricks found in the duffel
bag. The district court sustained the government’s objections in
part and overruled them in part. The district court found that the
government had proved by a preponderance of the evidence that
Lans’s involvement in the conspiracy was sufficient to hold him re-
sponsible for the 21 similarly marked bricks in the storage unit and
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10 Opinion of the Court 22-14095
the 5 kilograms in the duffel bag. Likewise, the court found that it
was foreseeable to Lans that the drugs that he acquired on the date
of the exchange were stored in a facility and to impose responsibil-
ity on him for maintaining a premises for drug trafficking. The
court found that Lans had a base offense level of 32 and a two-level
enhancement for obstruction of justice, and that the two-level en-
hancement for maintaining a drug trafficking premises applied to
him. Those findings resulted in a guideline range of 210 to 262
months’ incarceration.
Once the guideline calculation was established, the govern-
ment asked for a sentence at the top of the guideline range based
on Lans’s role in the conspiracy and his criminal history. Lans
asked for a sentence below the guideline range based on his health
and argued that his criminal history should not weigh in favor of a
longer sentence because he was acquitted of one offense and par-
doned for another.
The district court sentenced Lans to 240 months’ imprison-
ment. The district court reasoned that the sentence was appropri-
ate because of the scope of Lans’s involvement in an extensive con-
spiracy to import narcotics, as well as the need to impose a sen-
tence that was just, that promoted respect for the law, and that pro-
vided sufficient protection for the public. The district court also
found that Lans’s criminal history category underrated the danger
he posed to the public. But the district court found that Lans’s
health was a mitigating factor that warranted a slightly lower sen-
tence than he would otherwise receive. The district court then
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22-14095 Opinion of the Court 11
stated it “would have upwardly varied to impose a 240-month sen-
tence on Mr. Lans irrespective of [its] ruling on the [g]overnment’s
objection[s]” because of his criminal history. And the district court
stated that it had “taken into account all of the factors identified in”
18 U.S.C. § 3553(a).
This appeal ensued.
II.
Lans first argues that the government failed to prove every
element of the crime beyond a reasonable doubt, insisting that
there was insufficient evidence for his conviction because the gov-
ernment failed to prove Lans knew he was involved in a conspiracy
to distribute cocaine, or alternatively, that the government only
showed a buyer-seller relationship.
We review the sufficiency of the evidence to support a con-
viction de novo, “viewing the evidence in the light most favorable
to the government and drawing all reasonable inferences and cred-
ibility choices in favor of the jury’s verdict.” United States v. Rodri-
guez, 218 F.3d 1243, 1244 (11th Cir. 2000). “The district court’s de-
nial of motions for judgment of acquittal will be upheld if a reason-
able trier of fact could conclude that the evidence establishes the
defendant’s guilt beyond a reasonable doubt.” Id.
“It is not necessary that the evidence exclude every reasona-
ble hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided that a reasonable trier of
fact could find that the evidence established guilt beyond a reason-
able doubt.” United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir.
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12 Opinion of the Court 22-14095
2008) (quoting United States v. Calderon, 127 F.3d 1314, 1324 (11th
Cir. 1997)). “In other words, the question is whether reasonable
minds could have found guilt beyond a reasonable doubt, not
whether reasonable minds must have found guilt beyond a reason-
able doubt.” Id. (emphasis in original).
“The prerequisites to a finding of guilt on a drug conspiracy
count are proof that two or more persons agreed to commit a drug-
related offense, that the defendant knew of this conspiracy, and
that he agreed to become a member.” United States v. Carrascal-
Olivera, 755 F.2d 1446, 1450 (11th Cir. 1985). “The existence of
these elements may be established through circumstantial evi-
dence.” Id. But proof that the defendant “knew he was involved
in something criminal,” absent more, is insufficient to prove that
the defendant knew he was part of a conspiracy to distribute a con-
trolled substance. See United States v. Louis, 861 F.3d 1330, 1334
(11th Cir. 2017).
“[A] simple buyer-seller controlled substance transaction
does not, by itself, form a conspiracy.” United States v. Achey, 943
F.3d 909, 917 (11th Cir. 2019). But “a conspiracy can be found if
the evidence allows an inference that the buyer and seller knew the
drugs were for distribution,” rather than for the buyer’s personal
drug habit. Id. A reasonable jury can infer a conspiracy to distrib-
ute from the amount of drugs involved in a transaction. Id.
We conclude that the district court did not err in denying
Lans’s motions for judgment of acquittal because a reasonable ju-
ror could find that the government proved Lans’s knowledge of his
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22-14095 Opinion of the Court 13
involvement in a cocaine distribution conspiracy beyond a reason-
able doubt based on the circumstantial evidence it presented.
Viewing the evidence in the light most favorable to the govern-
ment and drawing all reasonable inferences and credibility deter-
minations in its favor, the evidence shows Lans knew that he was
part of a cocaine trafficking conspiracy. For example, Lans used an
encrypted messaging platform, communicated through vague
messages and phone calls, and attempted to evade police and dis-
pose of the duffel bag in the silver car after he left the restaurant
parking lot before he was arrested. The government also presented
evidence showing that Lans knew he was distributing cocaine and
not just involved in “something criminal,” e.g., his text messages
to his son that were often about cocaine trafficking. The govern-
ment also showed that Lans knew what was in the duffel bag by
presenting evidence that the bag was partially unzipped and that
Lans and Stout had previously met. And the amount of cocaine
found in the duffel bag—$135,000 worth—suggests that it was un-
likely to be entrusted to an unwitting courier or to be for personal
consumption. While Lans argues that there was no evidence he
opened the duffel bag and that the bag could have equally contain
laundered money, again, “[i]t is not necessary that the evidence ex-
clude every reasonable hypothesis of innocence” so long as a rea-
sonable trier of fact could have, not must have, found guilt beyond
a reasonable doubt. See Ellisor, 522 F.3d at 1271.
Because the government presented sufficient evidence such
that a jury could reasonably reach a guilty verdict, we affirm as to
this issue.
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14 Opinion of the Court 22-14095
III.
Lans next argues that the evidence derived from his cell
phone and from the storage unit should have been excluded as ir-
relevant or, alternatively, as more prejudicial than probative.
We normally review a district court’s evidentiary ruling for
abuse of discretion. United States v. Elysee, 993 F.3d 1309, 1347 (11th
Cir. 2021). “[T]he district court is uniquely situated to make nu-
anced judgments on questions that require the careful balancing of
fact-specific concepts like probativeness and prejudice, and we are
loathe to disturb the sound exercise of its discretion in these areas.”
United States v. Troya, 733 F.3d 1125, 1131 (11th Cir. 2013) (quoting
United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003)). But
objections or arguments that are not raised at the district court are
reviewed for plain error. See United States v. Evans, 478 F.3d 1332,
1338 (11th Cir. 2007). To prove plain error, a defendant must show
(1) error, (2) that is plain, and (3) that affects substantial rights.
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). If all
three conditions are met, an appellate court may exercise its discre-
tion to recognize the error if it “seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.” Id. (alteration
adopted) (quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1290
(11th Cir. 2003)). An error is plain when it is clear or obvious. Id.
at 1352.
Any “evidence that makes the existence of any fact at issue
more or less probable” is relevant. Huddleston v. United States, 485
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22-14095 Opinion of the Court 15
U.S. 681, 687 (1988). Relevant evidence is admissible unless there
is a rule that provides for its exclusion. Fed. R. Evid. 402.
A court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of unfair prejudice. Fed. R.
Evid. 403. “[I]n a criminal trial, relevant evidence is inherently prej-
udicial; it is only when unfair prejudice substantially outweighs pro-
bative value that the rule permits exclusion.” United States v. Edou-
ard, 485 F.3d 1324, 1346 (11th Cir. 2007) (emphasis in original)
(quoting United States v. King, 713 F.2d 627, 631 (11th Cir. 1983)).
Unfair prejudice “speaks to the capacity of some concededly rele-
vant evidence to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old Chief v.
United States, 519 U.S. 172, 180 (1997). “In reviewing issues under
Rule 403, we look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its un-
due prejudicial impact.” United States v. Brown, 441 F.3d 1330, 1362
(11th Cir. 2006).
Evidence of other crimes, wrongs, or bad acts is not admis-
sible to prove a person’s character to show that he acted in con-
formity with that character. Fed. R. Evid. 404(b)(1). But such evi-
dence may be admissible for another purpose, such as to prove in-
tent, knowledge, or absence of mistake. Fed. R. Evid. 404(b)(2).
Part of the test to determine whether evidence is admissible under
Rule 404(b) is whether the evidence satisfies Rule 403. United States
v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000). In other words, ev-
idence of other crimes, wrongs, or bad acts is not admissible if the
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16 Opinion of the Court 22-14095
evidence’s probative value is substantially outweighed by its dan-
ger of undue prejudice. Id.; Fed. R. Evid. 403.
A limiting instruction to the jury can diminish any unfair
prejudice caused by the admission of Rule 404(b) evidence. Edou-
ard, 485 F.3d at 1346. A jury is presumed to follow limiting instruc-
tions. United States v. Hill, 643 F.3d 807, 829 (11th Cir. 2011).
We conclude that the district court did not abuse its discre-
tion in admitting the cell phone evidence because it was relevant
to Lans’s knowledge of the conspiracy, and the probative value was
not substantially outweighed by a danger of unfair prejudice. The
phone records included conversations between Lans and another
charged cocaine trafficker and centered on investigations and crim-
inal cases involving cocaine. The records were relevant because
Lans’s knowledge was at issue, and the phone records made the
fact that Lans knowingly participated in a conspiracy to distribute
cocaine more likely. The evidence had significant probative value
because, as discussed above, Lans’s messages made it more likely
that he knew he was involved in cocaine trafficking, not merely
“something criminal.” And while, like all relevant evidence, the
phone evidence was prejudicial, Lans fails to articulate how the ev-
idence was unfairly prejudicial. Lans asserts that the evidence
paints Lans as a cocaine trafficker, but that was the very thing that
the government was trying to prove. To the extent that there was
a risk that a jury would unfairly conflate McMillan-Lans’s alleged
crimes with Lans’s conduct, the risk was mitigated by the two lim-
iting instructions given to the jury which the jury presumably
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22-14095 Opinion of the Court 17
followed. Because there was significant probative value and little
risk of unfair prejudice, the district court was within its discretion
when it found that the evidence was admissible.
As to the storage unit evidence, Lans did not object to the
evidence before the district court and fails to show that the district
court plainly erred in admitting the evidence. The storage unit ev-
idence had probative value because it showed the scope of the con-
spiracy. And Lans had failed to show that the risk of unfair preju-
dice from the evidence substantially outweighed the probative
value to such a degree that it was “obvious.”
Accordingly, we affirm as to this issue.2
IV.
Lans further argues that the district court erred by instruct-
ing the jury on deliberate ignorance because the evidence did not
show that he purposely avoided learning what was in the duffel
bag.
2 In his reply brief, Lans argues for the first time that he was denied effective
assistance of counsel because his counsel failed to object to the admission of
the storage unit evidence. But “[a]n appellant in a criminal case may not raise
an issue for the first time in a reply appellate brief,” United States v. Levy, 379
F.3d 1241, 1242 (11th Cir. 2004), and we generally do not review a claim of
ineffective assistance of counsel on direct appeal when the district court has
not heard the claim, nor developed a factual record. See United States v. Khoury,
901 F.2d 948, 969 (11th Cir.), modified by 910 F.2d 713 (11th Cir. 1990). We
therefore decline to address this argument.
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18 Opinion of the Court 22-14095
But we are precluded from reversing or invoking plain-error
review when a party has invited the error. United States v. Silvestri,
409 F.3d 1311, 1327 (11th Cir. 2005). “The doctrine of invited error
is implicated when a party induces or invites the district court into
making an error.” Id.
Here, because Lans and the government jointly proposed
jury instructions that included a deliberate ignorance instruction,
the invited error doctrine bars Lans’s challenge. Indeed, the filing
that proposed the instructions states, “[a]lthough the United States
is filing this document, both parties have reviewed its contents
prior to its filing. All instructions are jointly proposed, other than
Government Proposed Instruction #6.” The deliberate ignorance
instruction, however, was contained in Jointly Proposed Instruc-
tion 12. And there is nothing in the record showing that the gov-
ernment filed a false statement in this filing.
We therefore decline to review the instructions because
Lans invited any error. See id. at 1328.
V.
Lans also argues that the district court’s sentence was proce-
durally unreasonable because it was based on clearly erroneous
facts.
We review de novo the district court’s legal interpretation of
the sentencing guidelines and its application of the guidelines to the
facts. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). We
review a district court’s findings of fact for a sentencing
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22-14095 Opinion of the Court 19
enhancement under a clear error standard. United States v. Ghertler,
605 F.3d 1256, 1267 (11th Cir. 2010).
In criminal cases, any errors that do “not affect substantial
rights must be disregarded.” Fed. R. Crim. P. 52(a). In sentencing
cases, an error in calculating the advisory guideline range may be
harmless if the district court would have imposed the same sen-
tence with a different guidelines calculation. See United States v.
Keene, 470 F.3d 1347, 1348–50 (11th Cir. 2006). If a district court
states that its sentence would be the same with a different guideline
calculation, we assume there was an error, calculate the guideline
range without the error, and analyze whether the sentence would
be substantively reasonable under that guideline range. See id. If
the sentence would be reasonable, any error in the guideline calcu-
lation was harmless, and we will not address the disputed calcula-
tion. Id. at 1350.
We review the substantive reasonableness of a sentence un-
der an abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). The party challenging a sentence bears the burden
of establishing that it is unreasonable “in light of the entire record,
the § 3553(a) factors, and the substantial deference afforded sen-
tencing courts.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256
(11th Cir. 2015). Section 3553(a) mandates that the district court
consider the nature and circumstances of the offense, the defend-
ant’s history and characteristics, the purposes of sentencing, the
kinds of sentences available, the guideline sentencing range, any
pertinent policy statements, the need to avoid unwarranted
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20 Opinion of the Court 22-14095
sentencing disparities between similarly situated defendants, and
the need to provide restitution to any victims. § 3553(a).
The district court does not have to give all the factors equal
weight, and the determination of how much weight to assign to
each factor is within its discretion. Rosales-Bruno, 789 F.3d at 1254.
“[D]iscretion in weighing sentencing factors is particularly pro-
nounced when it comes to weighing criminal history.” United
States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021). District courts
“have broad leeway in deciding how much weight to give to prior
crimes,” and we have repeatedly affirmed the substantive reasona-
bleness of major-upward-variance sentences for defendants with
significant criminal histories. Id. (quoting Rosales-Bruno, 789 F.3d
at 1254). And “[a] sentence imposed well below the statutory max-
imum penalty is another indicator of reasonableness.” United States
v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).
A defendant responsible for at least 5 kilograms but less than
15 kilograms of cocaine has a base offense level of 30. U.S.S.G.
§ 2D1.1(c)(5). A defendant responsible for at least 15 kilograms but
less than 50 kilograms of cocaine has a base offense level of 32. Id.
§ 2D1.1(c)(4). The sentencing guidelines prescribe a two-level en-
hancement for a defendant who “maintained a premises for the
purpose of manufacturing or distributing a controlled substance.”
Id. § 2D1.1(b)(12). A defendant with a criminal history category of
II and an offense level of 32 would have a guideline range of 135-
168 months’ imprisonment. U.S.S.G. Ch. 5, Pt. A. A defendant
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22-14095 Opinion of the Court 21
with the same criminal history category and an offense level of 36
would have a guideline range of 210-262 months. Id.
We need not reach the question of whether the district court
erred in calculating Lans’s guideline range because even assuming
for the sake of argument there was error, it was harmless. Because
the district court stated that its sentence would be the same under
the guideline range that Lans contends is correct, we ask whether
his 240-month sentence would be substantively reasonable under
that range. Keane, 470 F.3d at 1348–50.
With the lower drug quantity and without the enhancement
for maintaining a premises for distributing drugs, Lans’s guideline
range would be 135 to 168 months’ imprisonment. A 240-month
sentence would be a 72-month upward variance from that guide-
line range, but in light of Lans’s criminal history and the substantial
deference given to sentencing courts, it would be substantively rea-
sonable. Indeed, Lans’s criminal history included shooting at two
individuals, killing one of them, and participating in a shootout
with police officers. And Lans’s present offense also involved dan-
gerously evading the police. The court reasonably concluded that
the sentencing guidelines underrated Lans’s danger to the public
and was within its discretion to place greater weight on criminal
history than on the guideline range or other sentencing factors. See
Riley, 995 F.3d at 1279. Finally, we note that the 240-month sen-
tence is well below the statutory maximum penalty of life, further
indicating reasonableness. See Croteau, 819 F.3d at 1310.
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Thus, any error in calculating Lans’s guideline range was
harmless. Accordingly, we affirm as to this issue.
VI.
For the reasons stated, we affirm Lans’s conviction and sen-
tence.
AFFIRMED.
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