USA v. Troy'tavious Shaquille Scott

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11971
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY'TAVIOUS SHAQUILLE SCOTT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:20-cr-00029-AW-GRJ-1
____________________
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 1 of 9

-- 1 of 9 --

2 Opinion of the Court 21-11971
Before J ORDAN, NEWSOM , and BLACK , Circuit Judges.
PER CURIAM:
Troy’Tavious Scott appeals his concurrent sentences of 108
months’ imprisonment for two counts of felony possession of a
firearm and one count of possession of an unregistered firearm.
Scott contends his sentence was procedurally unreasonable be-
cause the court varied upward based on the incorrect conclusion
that the Guidelines did not account for his conduct encompassing
multiple incidents of possession. Scott also asserts his sentence
was both procedurally and substantively unreasonable because
the court declined to reduce his sentence on the basis that he
faced pending state charges for the same offense conduct. After
review,1 we affirm Scott’s sentence.
I. DISCUSSION
A sentence is procedurally unreasonable if the district court
miscalculates the advisory Guidelines range, treats the Guidelines
as mandatory, fails to consider the 18 U.S.C. § 3553(a) factors, se-
lects a sentence based on clearly erroneous facts, or fails to explain
1 “Regardless of whether the sentence imposed is inside or outside the Guide-
lines range, [we] review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). The party challenging the sen-
tence bears the burden of establishing it is unreasonable based on the record
and the 18 U.S.C. § 3553(a) factors.
United States v. Tome, 611 F.3d 1371,
1378 (11th Cir. 2010).
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 2 of 9

-- 2 of 9 --

21-11971 Opinion of the Court 3
the chosen sentence.
United States v. Trailer, 827 F.3d 933, 936
(11th Cir. 2016). A sentence is substantively unreasonable if the
court: “(1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an im-
proper or irrelevant factor, or (3) commits a clear error of judg-
ment in considering the proper factors.”
United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (
en banc).
The § 3553(a) factors include the nature and circumstances
of the offense and characteristics of the defendant; the kinds of
sentences available; the Guidelines sentencing range; the need for
the sentence imposed to reflect the seriousness of the offense, af-
ford adequate deterrence, and protect the public; and the need to
avoid unwarranted sentence disparities among similarly situated
defendants. 18 U.S.C. § 3553(a). We will only vacate the defend-
ant’s sentence 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 omitted).
“[A] district court commits a clear error of judgment when it con-
siders the proper factors, but balances them unreasonably.”
Irey,
612 F.3d at 1189.
Although Scott characterizes the court’s consideration of
his multiple possessions as a procedural error and its failure to
consider his pending state prosecutions as both procedural and
substantive error, both arguments are better characterized as sub-
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 3 of 9

-- 3 of 9 --

4 Opinion of the Court 21-11971
stantive reasonableness challenges. Scott’s argument the district
court erred by considering that his charges stemmed from multi-
ple independent incidents of unlawful possession is best under-
stood as a substantive reasonableness challenge that the court
gave weight to an improper or irrelevant factor or a challenge to
the way the court weighed the § 3553(a) factors.
See Irey, 612
F.3d at 1189. Likewise, his argument the district court should
have considered the potential sentences from his pending state
charges based on the same offense conduct is best understood as a
substantive reasonableness challenge that the court failed to con-
sider a relevant factor due significant weight.
See id.
A. Multiple Incidents of Possession
The district court did not err in imposing an upward vari-
ance on the basis of Scott’s multiple intervening incidents of pos-
session. The court was correct that Scott’s second arrest was not
fully accounted for in Scott’s Guidelines range. The base offense
level was determined by the sawed-off shotgun found during
Scott’s first arrest and was not impacted by his second arrest. Be-
cause Scott had three guns during his first arrest, he was in the
range for three to seven firearms to warrant an enhancement
based on that arrest alone, and the additional firearm possessed
during the second arrest did not result in an additional enhance-
ment.
See U.S.S.G. § 2K2.1(b)(1)(A). The second arrest impacted
his offense level only by adding a two-level enhancement because
the gun possessed during that arrest was stolen.
See id.
§ 2K2.1(b)(4)(A). However, the district court was correct in not-
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 4 of 9

-- 4 of 9 --

21-11971 Opinion of the Court 5
ing the second arrest was not otherwise accounted for in Scott’s
offense level. And Scott’s offense level and criminal history cate-
gory did not account for the fact the second possession occurred
while he was on bond for the first offense. Moreover, even if
Scott were correct that his multiple incidents of firearm posses-
sion were already accounted for in the Guidelines range, the dis-
trict court was permitted to vary upward based on facts already
considered in the Guidelines.
See United States v. Goldman, 953
F.3d 1213, 1222 (11th Cir. 2020) (stating even if a particular factor
is already accounted for by the Guidelines, district courts main-
tain discretion to use this factor to justify a variance).
Scott infers from the fact the Guidelines categorize unlaw-
ful possession charges based on the total number of guns, rather
than the total incidents of possessions, that the district court con-
travened sentencing policy by considering he had multiple inter-
vening possessions. Even if Scott’s inference were correct, the
Guidelines are advisory, and there is no limitation on the scope of
information regarding a defendant’s conduct a court may consider
at sentencing.
See United States v. Booker, 543 U.S. 220, 245
(2005) (holding the Sentencing Guidelines are advisory); 18 U.S.C.
§ 3661 (providing there is no limitation on the information con-
cerning a defendant’s background, character, and conduct that a
court may receive and consider for the purpose of imposing an
appropriate sentence).
Moreover, the multiple intervening incidents was only one
of several factors the court considered in imposing an upward var-
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 5 of 9

-- 5 of 9 --

6 Opinion of the Court 21-11971
iance. The court mentioned Scott’s extensive criminal history for
his age, which included domestic violence offenses, his flight from
law enforcement, his discarding a loaded gun around bystanders,
and his history of performing poorly on supervision. Thus, in ad-
dition to being a proper factor for consideration, Scott’s multiple
intervening incidents of possession was only one of several factors
noted by the district court in varying upward.
B. State Sentence
Section 5G1.3 states a court “shall” adjust federal sentences
if the defendant has served a term of imprisonment that will not
be credited to the defendant’s federal sentence by the Bureau of
Prisons. U.S.S.G. § 5G1.3(b). The section also states that federal
sentences based on the same conduct underlying state charges
“shall” be imposed to run concurrently with the anticipated state
sentence.
Id. § 5G1.3(c). We have clarified that § 5G1.3, like the
rest of the Guidelines, is not mandatory.
United States v. Henry,
1 F.4th 1315, 1326 (11th Cir. 2021). Courts must consider § 5G1.3
but have no obligation to impose a sentence consistent with its
directive.
Id.
The district court did not err by declining to consider Scott
was subject to state court sentencing for charges based on the
same conduct underlying his federal charges as a mitigating fac-
tor. First, the court addressed Scott’s state proceedings when it
recommended his federal sentences run concurrently with any
sentences the state court imposed. This recommendation was
consistent with the policy statement regarding federal sentences
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 6 of 9

-- 6 of 9 --

21-11971 Opinion of the Court 7
where there is an anticipated state sentence based on state charges
resulting from the same conduct. U.S.S.G. § 5G1.3(c). Scott ref-
erences parts of § 5G1.3 that he asserts permit a court to impose a
downward variance in consideration of anticipated state sentenc-
es. However, these sections concern
undischarged state terms of
imprisonment where the district court knows the state sentence,
which are readily distinguishable from
anticipated state terms of
imprisonment where the district court does not yet know the
state sentence.
Moreover, it is unclear how the district court should have
weighed Scott’s state sentence as a mitigating factor without
knowing what, if any, state sentence will be imposed. The state
court could have imposed a lengthy sentence that could justify a
lesser federal sentence, or, seeing Scott’s 108-month federal sen-
tence, the state court could have imposed a more lenient sen-
tence, imposed its sentence to run concurrently, or decided not to
sentence him to a term of imprisonment at all. Or the state pros-
ecution could have chosen to drop the charges after Scott re-
ceived his federal sentence. Given these possibilities, it would be
difficult for the federal court to consider how to factor the antici-
pated state sentence into the federal sentence. While Scott argues
courts often engage in speculative predictions about future
events, this does not change the fact the state court, which will
sentence Scott with full knowledge of his existing federal sen-
tence, was in a better position to take the second sentence into
account during its sentencing proceedings, rather than the other
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 7 of 9

-- 7 of 9 --

8 Opinion of the Court 21-11971
way around. Scott likewise references § 3553(a)’s requirement
sentences be “sufficient, but not greater than necessary” to serve
the purposes of sentencing but fails to explain why this broad
statement of policy compels a downward reduction in anticipa-
tion of future state court sentences.
Scott also cites no authority requiring the district court to
acknowledge its discretion to lower Scott’s sentence based on his
pending state proceedings. And the failure to discuss one specific
mitigating factor does not show the court ignored or failed to
consider this evidence, nor does the failure to mention specific
factors compel the conclusion the sentence was substantively un-
reasonable.
See Irey, 612 F.3d at 1189. Indeed, the district court
explained its reasoning for Scott’s sentence at length. It discussed
the nature and circumstances of the offense, noting the reckless-
ness of leaving a loaded gun in a populated area, Scott’s attempt
to flee the scene, and Scott’s personal characteristics, describing
his extensive and varied criminal record. 18 U.S.C. § 3553(a)(1).
It pointed out the need for specific and general deterrence, espe-
cially given Scott’s criminal history and numerous gun-related
priors. 18 U.S.C. § 3553(a)(2)(B). The district court likewise ref-
erenced public safety. 18 U.S.C. § 3553(a)(2)(C). It also identified
numerous other mitigating factors, including Scott’s troubled up-
bringing and extensive network of family support.
II. CONCLUSION
The district court did not abuse its discretion in varying
upward based on the fact that Scott possessed firearms in multiple
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 8 of 9

-- 8 of 9 --

21-11971 Opinion of the Court 9
instances or by not considering as a mitigating factor that he
might receive a state sentence based on charges stemming from
the same offense conduct. We affirm his sentence.
AFFIRMED.
USCA11 Case: 21-11971 Date Filed: 03/25/2022 Page: 9 of 9

-- 9 of 9 --