USA v. Demetrius Render

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11043
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIUS RENDER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cr-00058-TES-CHW-1
____________________
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2 Opinion of the Court 23-11043
Before R OSENBAUM , BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Demetrius Render was sentenced to 36 months in prison
after pleading guilty to the unlawful use of a communication
facility to facilitate the commission of a felony. In this appeal,
Render argues that his sentence was substantively unreasonable
because it exceeded the six-to-twelve-month sentence
recommended by the guidelines. Because the district court did not
abuse its discretion in varying upward as it did, Render’s sentence
is not unreasonable, and we affirm.
I. Background
A. The Arrest
According to the stipulated facts in the plea agreement, a
police officer pulled Render over for speeding in 2020.
Approaching the car, the officer could smell marijuana. The officer
asked to see Render’s identification. “While apparently searching
for his identification card, Render started to produce wads of cash
from the pocket of his door” and “his pocket, and shove it at his
female passenger,” Randi Johnson, who “stuffed it in a backpack on
the passenger floorboard.”
The officer told Render to step out of the car multiple times.
When Render finally did, the officer informed him that he would
be detained for failing to produce identification and because the car
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23-11043 Opinion of the Court 3
smelled like marijuana. Render gave the officer a false name, age,
and driver’s license state.
The police later searched Render’s car. They found several
drugs and drug paraphernalia, including: a bag of marijuana, a box
of sandwich bags, a Xanax pill, a pill bottle containing nine Percocet
pills, and a digital scale. They also found a loaded gun and $1,235
in cash, “at least part of which belonged to Render.”1
At the Byron Police Department, a fingerprint test
confirmed Render’s identity and revealed that he was a felon with
a suspended driver’s license. He was arrested for possession of a
firearm by a convicted felon; possession of a firearm during certain
crimes; possession with intent to distribute a controlled substance;
illegal possession of a controlled substance; and giving false
information to a law enforcement officer.
B. The Charges
Render was initially charged with one count of possession of
a firearm by a convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
He pleaded not guilty. While he was out on bond, Render tested
positive for marijuana and methamphetamine.
The government later charged Render with one count of an
unlawful use of a communication facility to facilitate the
commission of a felony, 28 U.S.C. § 846, namely, “conspiracy to
possess with intent to distribute and to distribute controlled
1 The police found two other firearms in the car, but Johnson claimed they
were hers.
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4 Opinion of the Court 23-11043
substances, [28 U.S.C. §§ 813, 841 (a)(1), and 841(b)(1)(C),] all in
violation” of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.
Render agreed to plead guilty to the communications charge
in exchange for dismissing the felon-in-possession indictment. As
part of the stipulations in the plea agreement, Render admitted
“that . . . he was engaged in a conspiracy . . . to distribute controlled
substances” and that “he . . . knowingly and intentionally use[d] a
communications device . . . to facilitate the commission of” the
conspiracy. The agreement noted that Render faced a maximum
sentence of four years in prison.2
C. The PSI
The presentence investigation report (“PSI”) concluded
Render’s offense level was six. Render scored a criminal history
category IV. The guidelines range was six to twelve months’
imprisonment, with a statutory maximum penalty of forty-eight
months. See 21 U.S.C. § 843(d)(1).
The PSI noted several factors that might warrant an upward
departure or variance from the guidelines. First, “[t]he guideline
range account[ed] for [Render’s] possession of dangerous weapons
(firearms) during the offense,” but did not consider “the number of
firearms possessed” because “only one firearm is required to trigger
the preceding enhancement.” Second, Render faced significantly
less time because the plea bargain secured the dismissal of the
2 The plea agreement also contained a sentence appeal waiver, but it permitted
Render to appeal a sentence in excess of the advisory guidelines range.
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23-11043 Opinion of the Court 5
felon-in-possession charge. Third, Render possessed a firearm “in
connection with another felony[.]” And fourth, Render had “prior
convictions for a controlled substance offense and crime of
violence.”3 In sum, the probation office indicated that, “[d]espite
numerous probation and diversion options afforded to him,
Render ha[d] repeatedly shown ineffective management of his
behavior.”
Render submitted no objections to the PSI.
D. Sentencing
Prior to sentencing, Render submitted character references
and a brief sentencing memorandum, asking for a sentence that
3 The PSI recounted several such state convictions:
• a 2011 conviction for possession of marijuana with intent to distribute;
• a 2016 simple battery conviction for which he received 12 months’
probation;
• a 2017 conviction for possession of less than an ounce of marijuana for
which he paid a fine;
• a 2020 conviction for simple battery (family violence) for which he
received 12 months’ probation;
• a 2012 conviction for aggravated assault, for which Render was
sentenced to ten years in prison, four to serve, and the remainder on
probation, which was revoked four times.
And, though it was not a drug or violent crime, the PSI also noted a 2019 con-
viction for possession of a firearm as a felon, for which Render served 24 days
confinement.
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6 Opinion of the Court 23-11043
was “sufficient, but not greater than necessary” under the
sentencing factors in 18 U.S.C. § 3553(a). Among other things, the
letters explained that Render cared for his sick mother before she
died, that he had stable employment at Walgreens, and that he had
successfully obtained his G.E.D.
At the sentencing hearing, the parties agreed that the
probation office had correctly calculated the guideline range, and
confirmed that there were no objections, so the district court
adopted the PSI’s findings. The government asked the district
court to “consider an upward departure and upward variance” of
24 months’ imprisonment based on the offense conduct (notably
including the possession of drugs and a firearm), Render’s
“significant” criminal history, a positive test for methamphetamine
while on pretrial release, and the fact that Render “is prone to the
unlawful carrying of firearms . . . [as] a felon.” Render, in turn, told
the court that he had “changed drastically” and had been working,
going to school, and providing for his children. He also insisted
that much of his criminal history occurred when he was young. So
Render proposed an “alternative sentence” of community
confinement, home detention, or intermittent confinement.
The district court saw things differently. “[W]hat I hear you
saying is you want another chance,” the court told Render. But
“[y]ou’ve had a bunch of chances” and “you’ve wasted them . . .
that’s the only honest answer that there is.” “This is the second
time you’ve been caught with guns.” “[Y]ou are not getting it . . . .
The system has bent over backwards for you. You rarely get any
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23-11043 Opinion of the Court 7
punishment.” Finally, the district court told Render that it was
“shocked” that Render’s lawyer managed to secure a plea
agreement for just the use of a communications facility, since the
gun charge “would have been 100 to 120 months . . . minimum.”
“Everybody in your situation gets 8 or 9 years. Everybody . . . . You
have gotten such a break.”
So the district court announced that it would vary upward
from the guidelines. The court explained that it had “considered
the advisory sentencing range and the sentencing factors found at
18 U.S.C. § 3553(a),” and, based on “an individualized assessment
of the facts presented,” found that “the advisory guideline range
[was] insufficient[.]” Six to twelve months was “insufficient to
achieve the sentencing factors of adequately reflecting [Render’s]
history and characteristics, promoting respect for the law, affording
adequate deterrence to criminal conduct, and protecting the public
from further crimes that [he] may commit[.]” The district court
then sentenced Render to 36 months’ imprisonment, followed by
a year of supervised release. Render appealed.
II. Standard of Review
We review the substantive reasonableness of a sentence
only for abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). A district court abuses its sentencing discretion if 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.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
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8 Opinion of the Court 23-11043
2010) (en banc) (quotations omitted). The defendant bears the
burden of showing that the sentence is unreasonable in light of the
record, the sentencing factors listed in 18 U.S.C. § 3553(a), and “the
substantial deference afforded sentencing courts.” United States v.
Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
We will vacate a district court’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 is outside the range of
reasonable sentences dictated by the facts of the case.” United States
v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (quoting Irey, 612
F.3d at 1190). Thus, “there will be occasions in which we affirm
the district court even though we would have gone the other way
had it been our call.” Irey, 612 F.3d at 1189.
III. Discussion
Render argues that his sentence is substantively
unreasonable because (1) the district court based its decision to
vary upward on factors already considered in his guidelines range,
and (2) the district court gave especially great weight to the
criminal history factor. We reject both arguments.
“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 omitted). The “overarching”
instruction to sentencing courts in 18 U.S.C. § 3553 is that any
sentence, within the guideline range or not, must be sufficient but
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23-11043 Opinion of the Court 9
not greater than necessary to comply with the goals of sentencing
listed in § 3553(a)(2). Kimbrough v. United States, 552 U.S. 85, 101
(2007) (discussing 18 U.S.C. § 3553(a)); Gall, 552 U.S. at 51 (stating
that whether a sentence falls inside or outside the guideline range,
the district court must consider the § 3553(a) factors).
The relevant factors under § 3553(a) include, for example,
“the nature and circumstances of the offense,” the personal
“history and characteristics of the defendant,” “the seriousness of
the offense,” and “the need for the sentence imposed . . . to
promote respect for the law,” provide “just punishment,” and
afford “adequate deterrence[.]” 18 U.S.C. § 3553(a)(1)–(2). The
district court does not have to give all the factors equal weight, and
the court has discretion to attach great weight to one factor over
another. Rosales-Bruno, 789 F.3d at 1254. “[N]or must it discuss
each [§ 3553(a)] factor and the role that it played in sentencing.”
United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). And
the mere fact that the court does not discuss mitigating evidence
does not indicate “that the court erroneously ignored or failed to
consider this evidence[.]” United States v. Amedeo, 487 F.3d 823, 833
(11th Cir. 2007) (quotations omitted).
The court must also consider the applicable guidelines
range, any pertinent policy statements from the Sentencing
Commission, and the need to avoid unwarranted sentencing
disparities, as well as the ability to provide restitution to any of the
defendant’s victims. 18 U.S.C. § 3553(a)(3)–(7). “We do not
presume that a sentence outside the guideline range is
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10 Opinion of the Court 23-11043
unreasonable,” and we “must give due deference to the district
court’s decision that the § 3553(a) factors, as a whole, justify the
extent of the variance.” Goldman, 953 F.3d at 1222.
We see nothing unreasonable about Render’s sentence. The
district court considered the § 3553(a) factors. It announced that
the guidelines range was “insufficient to achieve the sentencing
factors of adequately reflecting [Render’s] history and
characteristics, promoting respect for the law, affording adequate
deterrence to criminal conduct, and protecting the public from
further crimes that [he] may commit[.]” It explained that Render
had a long criminal history and had not (in the district court’s view)
reformed his behavior. See United States v. Butler, 39 F.4th 1349,
1355 (11th Cir. 2022) (“The court may . . . impose an upward
variance if it concludes that the Guidelines range was insufficient
in light of a defendant’s criminal history.”). And it added that
Render got a significant benefit from plea bargaining down from
more serious charges. These conclusions are supported by the
record.
Render makes (essentially) two counterarguments, and we
reject them both.4 First, he contends that the district court
4 Render also briefly analyzes how his arguments would fare under the plain-
error standard. But because Render proposed that a shorter sentence would
be sufficient, he preserved the substantive reasonableness issue for our review.
See Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020) (“A defendant
who, by advocating for a particular sentence, communicates to the trial judge
his view that a longer sentence is ‘greater than necessary’ has thereby
informed the court of the legal error at issue in an appellate challenge to the
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23-11043 Opinion of the Court 11
wrongfully based its decision to vary upward on factors already
considered in his guidelines range. But “we have held that the
district court may vary upward based on conduct that was already
considered in calculating the guideline range.” Oudomsine, 57 F.4th
at 1268 (quotation and brackets omitted). Second, Render seems
to suggest that the district court gave too much weight to the
criminal history factor. But the weight given to the § 3553(a)
factors is “committed to the sound discretion of the district
court[.]” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted). The district court “is permitted to attach
great weight to one factor over others[.]” United States v. Overstreet,
713 F.3d 627, 638 (11th Cir. 2013) (quotations omitted). We “will
not second guess the weight given to a § 3553(a) factor so long
as”—as we have already explained is true here—“the sentence is
reasonable under the circumstances.” Butler, 39 F.4th at 1355.
Thus, because we find nothing unreasonable in the sentence
the district court chose, and Render’s arguments are answered by
well-settled principles, we conclude that Render’s sentence is not
substantively unreasonable.
substantive reasonableness of the sentence. He need not also refer to the
standard of review.”)
To the extent that Render argues that “[t]he district court . . . failed to take
into consideration the steps to rehabilitation that Mr. Render had taken” under
either standard of review, we reject that argument. Amedeo, 487 F.3d at
833 (failing to discuss mitigating evidence does not indicate “that the court
erroneously ignored or failed to consider this evidence” (quotations omitted)).
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12 Opinion of the Court 23-11043
IV. Conclusion
We therefore affirm the judgment of the district court.
AFFIRMED.
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