USA v. James Foster

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13454
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES T. FOSTER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:23-cr-00017-RH-MAF-1
____________________
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2 Opinion of the Court 23-13454
Before J ILL PRYOR , NEWSOM , and BRANCH , Circuit Judges.
PER CURIAM:
James Foster appeals his sentence of 140 months’ imprison-
ment for possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C.§§ 922(g)(1), 924(a)(8). On appeal,
Foster argues the district court clearly erred in applying a two-level
enhancement for obstruction of justice based on false statements
he made at the detention hearing about his knowledge and han-
dling of the firearms at issue. He also argues that the district court
imposed an unreasonable sentence by failing to address the 18
U.S.C. § 3553(a) factors and committing a clear error of judgment
in weighing those factors.1 Finding no reversible error, we affirm.
I.
When reviewing the district court’s imposition of an en-
hancement for obstruction of justice, we review the district court’s
factual findings for clear error and its application of the Guidelines
1 Foster also makes a passing objection to a four-level enhancement for pos-
sessing between eight and 24 weapons. Because Foster neither raised this ob-
jection below nor developed it further in his briefing, we hold that it is aban-
doned and do not address it. Ramirez v. Secretary, Dep’t of Transp., 686. F.3d
1239, 1249 (11th Cir. 2012) (“It is well-settled that we will generally refuse to
consider arguments raised for the first time on appeal.”); Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (“Abandonment of an issue
can . . . occur when passing references appear in the argument section of an
opening brief . . . .”).
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23-13454 Opinion of the Court 3
to those facts de novo. United States v. Massey, 443 F.3d 814, 818
(11th Cir. 2006).
Under the United States Sentencing Guidelines § 3C1.1, a
district court can increase a defendant’s offense level by two levels
if: (1) he “willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to an investi-
gation, prosecution, or sentencing” of his instant offense; and (2)
his obstructive conduct related to his “offense of conviction and
any relevant conduct or . . . a closely related offense.” U.S.S.G. §
3C1.1. Examples of covered conduct include “committing, suborn-
ing, or attempting to suborn perjury” or “providing materially false
information to a judge or magistrate judge.” Id., comment (n.4(B),
(F)). Perjury is “false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as a result
of confusion, mistake, or faulty memory.” United States v. Duperval,
777 F.3d 1324, 1337 (11th Cir. 2015) (quotation marks omitted).
“We review for clear error the district court’s factual find-
ings necessary for an obstruction of justice enhancement based on
perjury . . . and accord great deference to the district court’s credi-
bility determinations.” United States v. Singh, 291 F.3d 756, 763
(11th Cir. 2002) (quotation marks omitted and alteration adopted).
“Although it is preferable that the district court make specific find-
ings by identifying the materially false statements individually, it is
sufficient if the court makes a general finding of obstruction en-
compassing all the factual predicates of perjury.” Duperval, 777 F.3d
at 1337 (quotation marks omitted). The factual predicates for a
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4 Opinion of the Court 23-13454
finding of perjury include findings that the testimony was: (1) un-
der oath; (2) false; (3) material; and (4) given with the willful intent
to provide false testimony. Singh, 291 F.3d at 763 & n.4. For pur-
poses of U.S.S.G. § 3C1.1, “‘[m]aterial’ . . . means evidence, fact,
statement, or information that, if believed, would tend to influence
or affect the issue under determination.” U.S.S.G. § 3C1.1, com-
ment. (n.6).
Here, the district court didn’t err in finding that Foster com-
mitted perjury at the detention hearing and accordingly imposing
the enhancement for obstruction of justice. Foster was under oath
at the relevant time. The district court determined that Foster’s
testimony that he had not handled any of the firearms was false
based on the government’s evidence showing his fingerprints on
one of the firearms. The district court further determined that Fos-
ter’s statements were willfully false based on his testimony that he
was operating under the mistaken belief that so long as he hadn’t
handled the firearms, they were permitted in his house.
Foster’s main contention on appeal is that his statement
about handling the firearm was not material to his conviction. He
argues that because it was known that there was a gun and that he
was a convicted felon, there was sufficient warrant for his charge
and, therefore, “no matter what ‘statement’ [he] made,” it “was not
a material statement.” The government responds that “the state-
ments were material to his guilt and the determination of release
or detention based upon risk of danger and flight risk.” We agree
with the government. And because matters of guilt and pre-trial
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23-13454 Opinion of the Court 5
detention are related to the prosecution of a crime, we conclude
that the district court didn’t err when it held that Foster’s statement
was material. See U.S.S.G. § 3C1.1.
Because Foster’s detention-hearing statement about han-
dling the firearm was perjury, we hold that the district court didn’t
abuse its discretion in applying the two-level obstruction-of-justice
enhancement. Accordingly, we affirm on this issue.
II.
When reviewing the reasonableness of a sentence, we con-
sider the totality of the circumstances under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). If
a party doesn’t raise an argument of procedural error before the
district court, we ordinarily review for plain error. United States v.
Rodriguez, 75 F.4th 1231, 1241 (11th Cir. 2023). To prevail under
the plain-error standard, the defendant must show: (1) an error oc-
curred; (2) the error was plain; (3) the error affects substantial
rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. Error is plain where
the district court’s ruling directly contradicts the explicit language
of a statute or rule, or binding precedent from the Supreme Court
or our Court. See id. To preserve an issue for appeal, “one must
raise an objection that is sufficient to apprise the trial court and the
opposing party of the particular grounds upon which appellate re-
lief will later be sought.” United States v. Parks, 823 F.3d 990, 994
(11th Cir. 2016) (quotation marks and citation omitted).
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6 Opinion of the Court 23-13454
A sentence is procedurally erroneous if, for example, the dis-
trict court fails to consider the § 3553(a) factors. United States v.
Trailer, 827 F.3d 933, 936 (11th Cir. 2016). Although the district
court must consider the § 3553(a) factors, it need not state on the
record that it has explicitly considered each of the § 3553(a) factors
or to discuss each factor. United States v. Kuhlman, 711 F.3d 1321,
1326 (11th Cir. 2013). “A district court’s explanation of a sentence
may be brief and may derive substance from the context of the rec-
ord, the defendant’s history and characteristics, and the parties’ ar-
guments.” United States v. Hamilton, 66 F.4th 1267, 1275 (11th Cir.
2023). The sufficiency of the district court’s deliberations may be
ascertained from the full transcript of the sentencing hearing, taken
together with the court’s closing remarks. Id. Additionally, we
“have taken a holistic approach in evaluating the district court’s ex-
planation of the sentence imposed” such that “[o]ur review is not
limited to the district court’s closing remarks.” United States v.
Ghertler, 605 F.3d 1256, 1263 (11th Cir. 2010).
The party challenging a sentence bears the burden of estab-
lishing that it is unreasonable based on the facts of the case and the
§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th
Cir. 2010). Under § 3553(a), a district court’s sentence must be suf-
ficient, but not greater than necessary, to achieve the goals of sen-
tencing: reflect the seriousness of the offense, promote respect for
the law, provide just punishment, deter future criminal conduct,
protect the public, and provide the defendant with any needed
training or treatment. 18 U.S.C. § 3553(a). Section 3553(a) also
requires district courts to consider the nature and circumstances of
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23-13454 Opinion of the Court 7
the offense, the defendant’s history and characteristics, the kinds of
sentences available, the Sentencing Guidelines, any pertinent pub-
lic policy statement, “the need to avoid unwarranted sentence dis-
parities among defendants with similar records who have been
found guilty of similar conduct,” and the need to provide restitu-
tion to any victims. Id.
We have “underscored” that we must give “due deference”
to the district court to consider and weigh the proper sentencing
factors. United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir.
2018) (quotation marks omitted). The district court does not have
to give all the factors equal weight and is given discretion to attach
great weight to one factor over another. United States v. Rosales-
Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). A district court’s un-
justified reliance on any one § 3553(a) factor, however, may be in-
dicative of an unreasonable sentence. United States v. Pugh, 515 F.3d
1179, 1191 (11th Cir. 2008). We will vacate a defendant’s 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 sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” Trailer,
827 F.3d at 936 (quotation marks and citation omitted). One indi-
cator of reasonableness is whether the sentence falls well below the
maximum penalty. United States v. Dougherty, 754 F.3d 1353, 1364
(11th Cir. 2014). We also ordinarily expect that a sentence within
the guideline range is reasonable. United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008).
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8 Opinion of the Court 23-13454
A district court abuses its discretion and imposes a substan-
tively unreasonable sentence only if it “(1) fails to afford considera-
tion to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) com-
mits a clear error of judgment in considering the proper factors.”
Rosales‑Bruno, 789 F.3d at 1256 (quotation marks and citation omit-
ted). A district court commits a clear error of judgment when it
considers the proper factors but balances them unreasonably, ar-
riving at a sentence that does not “achieve the purposes of sentenc-
ing as stated in § 3553(a).” United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc) (quotation marks and citation omitted).
In order to determine whether that has occurred, we are required
to make the sentencing calculus ourselves and to review each step
the district court took in making it. Id. Under abuse-of-discretion
review, we will sometimes affirm the district court’s sentence even
though we would have gone the other way. Id.
Here, whether reviewed de novo or for plain error, Foster’s
sentence was procedurally reasonable because the record reflects
that the district court considered the § 3553(a) factors. Though the
district court didn’t individually address every § 3553(a) factor, it
wasn’t required to do so. See Kuhlman, 711 F.3d at 1326. Further-
more, the district court did address several § 3553(a) factors, includ-
ing Foster’s personal history and characteristics, the severity of the
offense, and Foster’s criminal history. A review of the entirety of
the sentencing hearing reflects that the district court adequately
considered the § 3553(a) factors. For these reasons, the court didn’t
err, much less plainly err in that respect.
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23-13454 Opinion of the Court 9
Foster’s 140-month imprisonment sentence was also sub-
stantively reasonable, as the district court didn’t abuse its discretion
in how it weighed the § 3553(a) factors. It explicitly weighed sev-
eral of the § 3553(a) factors, including the seriousness of the offense,
the need for just punishment, the nature and circumstances of the
offense, Foster’s history and characteristics, and the Sentencing
Guidelines. See 18 U.S.C. § 3553(a).
Contrary to Foster’s arguments on appeal, the district court
addressed several factors that he offered in support of a lesser sen-
tence, including the time since his last conviction and his rehabili-
tation, but it weighed those considerations against the aggravating
factors. The district court specifically referenced Foster’s character
testimony, considered whether the sentence recommended by the
guideline range was just and stated that it believed the guideline
range was too severe a penalty for the Foster’s obstruction of jus-
tice, and acknowledged that Foster accepted responsibility and
gave him a reduction. Though Foster may disagree with the
weight that the court gave to his mitigating factors, it isn’t apparent
that the district court abused its discretion in how it weighted the
§ 3553(a) factors.
Furthermore, the district court imposed a sentence at the
low end of the guideline range and below the 180-month statutory
maximum, both of which indicate that the sentence was reasona-
ble. See Dougherty, 754 F.3d at 1364; Gonzalez, 550 F.3d at 1324.
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10 Opinion of the Court 23-13454
The district court didn’t procedurally err, and the sentence
it imposed is substantively reasonable. Accordingly, we affirm on
these challenges, as well.
AFFIRMED.
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