USA v. Rico Laprince Southall

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12507
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICO LAPRINCE SOUTHALL,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00289-ELR-JEM-1
____________________
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2 Opinion of the Court 22-12507
Before NEWSOM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Rico Southall appeals his above-guidelines sentence of 84
months’ imprisonment imposed after he pleaded guilty to
possession of a firearm by a convicted felon. He argues that the
sentence is substantively unreasonable because the district court
improperly weighed the relevant sentencing factors and failed to
provide a sufficient justification for the upward variance. After
review, we affirm.
I. Background
In 2021, police officers in Cobb County, Georgia responded
to a report of an armed person, who was later determined to be
Southall, shooting at vehicles. One of the victims, V.F., was
married to Southall’s cousin. According to Southall, he and V.F.
had a prior conflict, he felt threatened by V.F. and her husband, and
Southall had moved from Paulding County to Cobb County to get
away from V.F. However, on April 1, 2021, Southall and V.F. were
driving in the same area in Cobb County, and when Southall saw
her, he began pursuing her vehicle and shooting at it. Southall
struck V.F.’s car five times—one bullet hit her driver’s side mirror,
two bullets hit the back window, and two hit the passenger side.
Additionally, Southall struck another vehicle of a bystander
traveling on the same road—the bullet entered the trunk and
passed through to the rear passenger seat. No one was physically
injured.
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22-12507 Opinion of the Court 3
While officers spoke with V.F., Southall drove by and
officers initiated a traffic stop. Officers discovered two firearms:
(1) a Glock Model 22 with an attached extended magazine and (2)
a Taurus Raging Judge Model 513, which had been reported stolen.
Southall’s girlfriend and their son were also in his vehicle. Officers
arrested Southall. Southall subsequently made unsolicited
statements, including that he and his girlfriend had a restraining
order against V.F., but he saw V.F. drive past his home, and “he
lost control.” He stated that “he did not do it to hurt V.F., but he
wanted ‘to let her know not to fuck with’ him.” He also admitted
that he knew he was a convicted felon and that he should not have
any firearms.1
Thereafter, a grand jury indicted Southall on one count of
possession of a firearm by a convicted felon, and he entered an
open non-negotiated plea of guilty to the charge.
Prior to sentencing, the United States Probation Office filed
a presentence investigation report (“PSI”), in which it determined
that Southall’s base offense level was 20 because the offense
involved a firearm with an extended magazine. It then added two
points because one of the firearms involved was stolen and four
points because Southall used a firearm in connection with the
1 Southall had the following prior felony convictions in Georgia: (1) 2006—
Violation of the Georgia Controlled Substances Act and possession of cocaine
with intent to distribute on or near a housing project; (2) 2009—possession of
a Schedule II controlled substance; and (3) 2014—purchase/possession of a
controlled substance. He also had a number of misdemeanor convictions
involving drugs, criminal trespass, statutory rape, assault, battery, and a DUI.
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4 Opinion of the Court 22-12507
felony offense of aggravated assault. After deducting three points
for acceptance of responsibility, Southall’s total offense level was
23, which when combined with his criminal history category of III,
resulted in a guidelines range of 57 to 71 months’ imprisonment.2
The government filed a sentencing memorandum,
requesting that the district court vary upward and sentence
Southall to 84 months’ imprisonment based on Southall’s “violent
and reckless conduct” in the instant offense, which “placed
innocent people and the general public in peril,” and his history of
both violent and drug offenses. In terms of his criminal history, the
government pointed to Southall’s convictions for: possession of
cocaine and reckless driving in 2009; statutory rape in 2009; simple
assault and criminal trespass in 2009; reckless conduct and criminal
trespass in 2014;3 possession of a controlled substance in 2014; and
battery and criminal trespass in 2016. The government maintained
that a sentence of 84 months’ imprisonment would reflect the
seriousness of the offense, promote respect for the law, and provide
adequate deterrence and a just punishment.
2 Southall objected to the calculation of his criminal history score, arguing that
his criminal history category should only be II, which the district court
overruled at sentencing. Southall does not appeal that determination.
3 The government pointed out that the 2014 misdemeanor convictions for
reckless conduct and criminal trespass had been “reduced from felony
aggravated assault and criminal damage to property charges arising from an
incident where defendant struck an individual with a figurine and damaged
that same person’s property.”
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22-12507 Opinion of the Court 5
Southall also filed a sentencing memorandum in which he
requested a within-guidelines sentence of 57 months’
imprisonment. In terms of his personal history and characteristics,
Southall emphasized that his childhood was “marked by trauma
and neglect” as both of his parents abused drugs and alcohol. At
the age of 7, the Department of Children and Family Services
removed him and his four siblings from the home because of
neglect and abuse. They were initially placed in an emergency
shelter and then in separate foster homes, which caused him great
distress. Eventually, a distant relative in Virginia took in all five of
the children, but once there, they were subjected to physical abuse
and “treated like second-class citizens.” Later, around his middle
school years, his father regained custody and the family moved in
with their grandmother, but his grandmother was physically
abusive as well. Then, when Southall was in high school, his
mother was released from prison and rejoined the family. At that
time, things went “downhill again” because his mother started
using drugs frequently, and Southall learned that his father was
involved in the drug business.
Meanwhile, Southall had ADHD, but never received proper
treatment, which led to struggles in school, and he ultimately
dropped out. Southall began dealing drugs as a teen, drinking, and
gambling, and he ended up in various legal troubles. However, in
recent years, he had made concerted efforts to “turn his life around,
so that he could be a present and involved father to [his son].”
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6 Opinion of the Court 22-12507
Turning to the underlying offense, Southall explained that
there was ongoing conflict between himself, V.F., and her husband,
which had led Southall to moving away from the family property
in Paulding County and moving in with his girlfriend and their son
in Cobb County. He and his girlfriend had applied for a restraining
order to keep V.F. away from them. And, on the date of the
shooting, when he saw V.F. driving not far from his home, “he
believed she was there to harm him and his family.” He explained
that he suffers from PTSD as a result of his childhood trauma,4 and
it contributed greatly to his irrational reaction to seeing V.F. near
his home.
He emphasized that given his personal history and
characteristics and the fact that he immediately took responsibility
for his conduct, a sentence at the bottom of the guidelines was
sufficient to satisfy the 18 U.S.C. § 3553(a) sentencing factors. He
also noted that the guidelines already accounted for the fact that
one of the firearms was stolen and one of the firearms possessed an
extended magazine, such that these aggravating factors did not
4 In support of his PTSD diagnosis and its effect on his behavior, Southall
submitted a psychological evaluation report from Dr. Amy Gambow. Dr.
Gambow opined that Southall’s PTSD “created difficulties with impulse
control, trouble identifying and appreciating potential consequences, and poor
judgment in response to his emotions throughout his life.”
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22-12507 Opinion of the Court 7
warrant going above the guidelines—particularly because he also
faced state charges on these matters.5
At sentencing, the district court adopted the guidelines
range of 57 to 71 months’ imprisonment as set forth in the PSI. The
government then requested an “upward variance” sentence of 84
months’ imprisonment, reiterating its position that such a sentence
was warranted based on the “egregious” facts of the case—that
Southall had two firearms (one with an extended magazine and one
that was stolen), and he fired numerous times on a public road,
hitting two different vehicles—which demonstrated Southall’s
reckless disregard for the general public and human life. The
government further emphasized Southall’s criminal history, which
included violent offenses and a demonstrated pattern of escalation.
Finally, the government argued that an 84-month sentence would
promote respect for the law, provide adequate deterrence, reflect
the seriousness of the offense, and provide just punishment.
Southall’s counsel, in turn, argued for a bottom of the
guidelines sentence of 57 months’ imprisonment. She argued that
although there were aggravating factors in the case in terms of the
firearm with the extended magazine and the stolen firearm, those
factors were already accounted for in the guidelines calculation.
Furthermore, Southall faced state charges related to the same
offense and would therefore be held accountable in state court. In
other words, his counsel argued that the district court did not need
5 In addition to his sentencing memorandum, Southall submitted several
supportive letters from his family and a family friend.
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8 Opinion of the Court 22-12507
to address the aggravating conduct and should focus solely on the
possession of a firearm offense before the court. Counsel also
noted that Southall promptly accepted responsibility and pleaded
guilty following his indictment.
Next, counsel addressed Southall’s criminal history,
emphasizing that he had “predominately misdemeanor offenses,”
and, in the preceding five-year period, had not had any new
offenses. She disputed the government’s characterization of
Southall’s record as demonstrating an escalating pattern of
violence. Finally, she emphasized the mitigating circumstances in
his case—namely, Southall’s childhood trauma and PTSD—and
urged the court to give significant weight to the mitigating factors
when fashioning a sentence.
Southall then made a brief statement in which he apologized
to the court and his family. He stated that he knew he had “messed
up” and had “to face the consequences.”
The district court then explained that, even though Southall
faced separate charges in state court, that fact would not factor into
the court’s sentencing decision because the district court did not
know whether the state would continue prosecuting Southall or
dismiss the state case once he was sentenced in this parallel federal
proceeding. In terms of Southall’s acceptance of responsibility, the
district court stated that it was not surprised that Southall accepted
responsibility so soon after the offense because “the conduct was
so egregious and his admissions [of guilt] were [so] immediate
that . . . he didn’t have much in terms of defense anyway.” Turning
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22-12507 Opinion of the Court 9
to the government’s request for a variance, the district court noted
that it “normally” does not agree to variances and instead imposes
a guidelines sentence, but this case was an exception because it
“showed a total disregard for human life.” The court emphasized
that Southall “fire[d] a gun at least six times” at a person who was
unarmed and not firing at him, and he could have easily killed V.F.
or other innocent people. Accordingly, the court concluded that,
even if it did not consider the aggravating factors accounted for by
the guidelines—that one firearm had an extended magazine and
the other was stolen—“this [was] a case where a variance above the
guideline range is still warranted.” Consequently, the court
imposed a sentence of 84 months’ imprisonment to be followed by
3 years’ supervised release. The court explained that it considered
the § 3553(a) factors and that the sentence was appropriate based
on “the egregiousness of this crime” and Southall’s criminal
history, which demonstrated an escalation in violence. Southall
objected to the procedural and substantive reasonableness of the
sentence.6 This appeal followed.
II. Discussion
Southall argues that his sentence is substantively
unreasonable because the district court failed to weigh the
6 Southall concedes that he is not challenging the procedural reasonableness
of his sentence on appeal.
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10 Opinion of the Court 22-12507
§ 3553(a) factors properly and failed to provide sufficient
justification for the above-guidelines sentence.7
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
7 Southall also asserts that the criteria for an upward departure under U.S.S.G.
§ 4A1.3(a) were not satisfied in this case. We need not address this argument
because the district court did not impose an upward departure under § 4A1.3.
Instead, it imposed an upward variance, which is different from an upward
departure and not subject to the same requirements or criteria set forth in
§ 4A1.3. See United States v. Hall, 965 F.3d 1281, 1295–96 (11th Cir. 2020)
(explaining that a variance is “when the court determines that a guidelines
sentence will not adequately further the purposes reflected in . . . § 3553(a)”
while a departure, which requires advance notice to the parties, is “a term of
art under the Guidelines and refers only to non-Guidelines sentences imposed
under the framework set out in the Guidelines” (quotations omitted)). Thus,
§ 4A1.3 had no application in this case.
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22-12507 Opinion of the Court 11
similar records who have been found guilty of similar conduct.” Id.
§ 3553(a)(1), (6).
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)
(quotations 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. “A district court has considerable
discretion in deciding whether the § 3553(a) factors justify a
variance and the extent of one that is appropriate.” United States v.
Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023) (quotations
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12 Opinion of the Court 22-12507
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. 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 57 to 71 months’
imprisonment and imposing a sentence of 84 months’
imprisonment. Southall argues that the guidelines range
accounted adequately for the aggravating factors in this case and
because of that those factors did not support a sentence above the
guideline range. However, the district court was entitled to
consider the aggravating factors and conduct present in this case
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22-12507 Opinion of the Court 13
even if this information was already part of the guidelines
calculation. United States v. Overstreet, 713 F.3d 627, 639 (11th Cir.
2013) (explaining that “a district court can rely on factors in
imposing a variance that it had already considered in imposing [a
guideline] enhancement” (alteration in original)).
Next, Southall argues that there was “no basis” for the
district court to conclude that this case was atypical from other
firearm-possession offenses. We disagree. The district court
explained adequately why it considered this case to fall outside the
mine-run firearm-possession case, particularly because Southall
opened fire on an unarmed person on a public road and fired at
least six shots, endangering the lives of many. We agree with the
district court that these facts are egregious, and we discern no error
in the district court’s reliance on these facts in determining that this
case was atypical from the mine-run possession of a firearm by a
convicted felon case. See Kimbrough v. United States, 552 U.S. 85, 109
(2007) (explaining that a district court’s decision to vary from the
guidelines may merit the “greatest respect” when the sentencing
judge finds the case to be “outside the heartland” of cases
contemplated by the Sentencing Commission (quotations
omitted)).
Although Southall also challenges the district court’s
determination that an upward variance was warranted based on his
criminal history, that determination was well within the court’s
discretion. Specifically, the district court may “impose an upward
variance if it concludes that the [g]uidelines range was insufficient
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14 Opinion of the Court 22-12507
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.”
Butler, 39 F.4th 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 § 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)).
Additionally, while Southall quarrels with the weight the
district court gave to the § 3553(a) factors and maintains that the
district court failed to consider his mitigating circumstances, the
weight given to any one of the § 3553(a) factors was within the
district court’s discretion. Rosales-Bruno, 789 F.3d at 1254.
Furthermore, Southall’s allegation that the district court failed to
consider his mitigating evidence is undermined by the record. The
district court stated that it considered Southall’s sentencing
memorandum, which detailed the mitigating circumstances in
great length, and Southall’s counsel also discussed the mitigating
circumstances during the sentencing hearing. Thus, the district
court considered the mitigating circumstances, even though it did
not mention that evidence when imposing Southall’s sentence. See
also United States v. Amodeo, 487 F.3d 823, 833 (11th Cir. 2007)
(“[A]lthough the district court’s sentencing order made no mention
of evidence that arguably mitigated in [the defendant’s] favor
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22-12507 Opinion of the Court 15
under § 3553(a), we cannot say that the court’s failure to discuss
this ‘mitigating’ evidence means that the court erroneously
‘ignored’ or failed to consider this evidence in determining [the
defendant’s] sentence.”).
Finally, Southall’s contention that the district court failed to
provide a sufficient justification for the upward variance is
unpersuasive. The district court made clear that it varied upward
and imposed an 84-month sentence because a variance was
warranted in light of the particularly egregious facts of this case and
Southall’s criminal history. Those considerations are proper
§ 3553(a) factors that the court should consider when imposing a
sentence. See 18 U.S.C. § 3553(a)(1). 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.”8 Irey, 612
F.3d at 1190 (en banc) (quotations omitted). Consequently, we
conclude that Southall’s sentence is substantively reasonable, and
we affirm the district court.
AFFIRMED.
8 We also note that, at the time of the offense, Southall faced a statutory
maximum of 10 years’ imprisonment. See 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2021). And his 84-month sentence is well-below this statutory maximum,
which is another 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).
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