USA v. Christopher Bauer

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11894
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER JON BAUER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14068-AMC-1
____________________
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2 Opinion of the Court 23-11894
Before NEWSOM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
After pleading guilty to two counts of possession with intent
to distribute controlled substances—specifically, fentanyl and
methamphetamine—Christopher Jon Bauer was sentenced to 180-
months’ imprisonment, an upward variance from the Guidelines
range of 130 to 162 months. He appeals, arguing that his sentence
is both procedurally and substantively unreasonable. Finding no
error, we affirm.
I.
Procedurally, Bauer argues that the district court erred on
three fronts. First, he claims that the court miscalculated his
Guidelines range by declining to apply a two-level decrease to his
offense level based on an amendment to the Guidelines that had
not yet taken effect. Bauer’s sentencing hearing occurred on May
22, 2023. U.S. Sentencing Guidelines § 2D1.1(b)(18) applies a two-
level decrease to a defendant’s offense level if he meets the “safety-
valve” criteria listed in U.S.S.G. § 5C1.2(a)(1)–(5). On May 3, before
Bauer’s sentencing hearing, the Sentencing Commission
promulgated an amendment to § 5C1.2(a)(1) to align its language
with the amendments made to 18 U.S.C. § 3553(f )(1) by the First
Step Act of 2018. See 88 Fed. Reg. 28254, 28264 (May 3, 2023).
However, the § 5C1.2(a)(1) amendment did not take effect until
November 1, after Bauer’s sentencing. See 88 Fed. Reg. at 28254.
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23-11894 Opinion of the Court 3
Bauer argues that he was eligible for a two-level decrease
because he meets the post-amendment criteria in U.S.S.G.
§ 5C1.2(a)(1)–(5). However, he did not satisfy the pre-amendment
version of § 5C1.2(a)(1), and substantive amendments to the
Guidelines do not apply retroactively. United States v. Jerchower, 631
F.3d 1181, 1184 (11th Cir. 2011). The district court recognized as
much, and appropriately excluded the § 2D1.1(b)(18) two-level
decrease when calculating Bauer’s Guidelines range. The court did
not err by declining to apply an amendment to the Guidelines that
had not yet taken effect.
Second, Bauer argues that the district court erred by refusing
to consider Bauer’s acceptance of responsibility as a mitigating
factor. This is simply incorrect as a descriptive matter. When
calculating Bauer’s Guidelines range, the court applied a three-level
decrease to Bauer’s offense level for acceptance of responsibility
under U.S.S.G. § 3E1.1(a), (b). It also specifically stated at the
sentencing hearing, “I do appreciate your acceptance of
responsibility.” The court thus did consider Bauer’s acceptance of
responsibility.
Third, Bauer argues that the district court erred by failing to
explain why an upward variance from the Guidelines range was
justified. A court that departs from the applicable Guidelines range
“must state the specific reasons for its departure” in enough detail
“so that an appellate court can engage in the meaningful review
envisioned by the Sentencing Guidelines.” United States v. Suarez,
939 F.2d 929, 933 (11th Cir. 1991); see 18 U.S.C. § 3553(c)(2). The
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4 Opinion of the Court 23-11894
district court here carefully explained how its upward variance
rested on several factors, including Bauer’s central role in a
fentanyl-dealing conspiracy, his reckless, high-speed flight from law
enforcement, his lengthy and violent criminal history, the need for
more deterrence than the Guidelines range provided, and the
exceptionally deadly nature of fentanyl. This satisfied the court’s
burden of explanation under 18 U.S.C. § 3553(c)(2).
II.
Bauer also argues that his 180-month sentence is
substantively unreasonable. We review the substantive
reasonableness of a sentence for abuse of discretion. United States
v. Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023). A court abuses
its discretion 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.” Id. (quotation
omitted).
Bauer argues that the court erred by imposing a variance
that relied, in part, on sentencing factors already taken into account
by his advisory Guidelines range. But the “district court may
consider facts that were taken into account when formulating the
guideline range for the sake of a variance.” United States v.
Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014).
And to the extent Bauer argues that the district court abused
its discretion by giving too little consideration to the Guidelines
range, we do not find that the court’s sentence was unreasonable
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23-11894 Opinion of the Court 5
in light of the countervailing factors previously described. So long
as the record reflects that the court considered all the 18 U.S.C.
§ 3553(a) factors, the “weight accorded to each factor” lies within
“the sound discretion of the district court.” United States v. Ramirez-
Gonzalez, 755 F.3d 1267, 1272 (11th Cir. 2014) (quotation omitted).
Considering Bauer’s criminal history, the severe nature of his drug
crimes, and his flight from police, we cannot say that the district
court abused its discretion by finding that a modest upward
variance from the Guidelines range was warranted.
* * *
AFFIRMED.
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