United States v. Daquan Carey

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-14172 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAQUAN CAREY, a.k.a. Trapboy Quan,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:24-cr-00115-TPB-NHA-1

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At the sentencing hearing, the district court recalculated a guideline range of 51 to 63 months of imprisonment based on a change in his base offense level and enhancements. The govern- ment recommended 87 months of imprisonment because of Carey’s history of unlawfully possessing firearms and violently flee- ing law enforcement and because he committed the instant of- fenses while released on bond. Carey argued for a sentence below the guideline range based on his age, traumatic childhood, and mental health concerns. When Carey allocuted, he stated that the officers did more harm to the community than he did and did not tell the truth about the incident. The district court stated that it considered the statutory sen- tencing factors. 18 U.S.C. § 3553(a). It found that Carey was unco- operative with law enforcement to the point that he had to be tased and an officer went to the hospital. It found that Carey “showed zero remorse” and blamed the officers. It also found that he was out on bond for a state gun offense at the time of the instant of- fense. It considered Carey’s age, personal tragedies, and mental health issues, but found that he was a danger to the community, and the government’s request was “too low.” The district court sentenced Carey to concurrent terms of 120 months of imprison- ment for each count, followed by 3 years of supervised release. We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Steiger, 107 F.4th 1315, 1319–20 (11th Cir. 2024). The district court imposes a substantively unrea- sonable sentence when it fails to consider relevant factors that were

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due significant weight, gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in consider- ing the proper factors. United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021). We will disturb a 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 impos- ing a sentence that falls outside the range of reasonableness as dic- tated by the facts of the case.” Id. (citation and internal quotation marks omitted). The district court may “attach great weight to one factor over others,” and this discretion is “particularly pronounced when it comes to weighing criminal history.” United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (citation and internal quotation marks omitted). “We do not presume that a sentence outside the guideline range is unreasonable and must give due deference to the district court’s decision that the § 3553(a) factors, as a whole, justify the extent of the variance.” United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). “Although there is no proportionality princi- ple in sentencing, a major variance does require a more significant justification than a minor one—the requirement is that the justifi- cation be sufficiently compelling to support the degree of the vari- ance.” United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc) (citation and internal quotation marks omitted). The district court did not abuse its discretion because it pro- vided sufficient justification for its substantial upward variance. It found that Carey was a danger to the community. It considered that the nature and circumstances of the offense were serious be- cause they involved resisting law enforcement with violence such

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that an officer went to the hospital. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). It found that Carey “showed zero remorse” for his con- duct and blamed the officers. And it considered Carey’s criminal history and likelihood of recidivism when finding that he commit- ted the instant offenses while released on bond for similar state felon-in-possession offenses. His sentence needed to afford ade- quate deterrence and protect the public from further gun crimes, as these offenses were part of a series of gun offenses, which con- tinued while he was on bond for state charges related to the 2021 offense. See id. § 3553(a)(2)(B)-(C). The district court was allowed to weigh the seriousness of the offenses, his lack of remorse, and his criminal history more heavily than any mitigating circum- stances regarding his age, traumatic childhood, and mental health issues. See Riley, 995 F.3d at 1279. It did not commit a clear error of judgment in imposing a substantial upward variance. See Taylor, 997 F.3d at 1355. Carey contends that the district court should not have im- posed a sentence above the government’s request. But the district court is not bound by the parties’ recommendations. It must con- sider the statutory sentencing factors and impose a sentence based on those factors. See 18 U.S.C. § 3553(a) (“The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in . . . this subsection . . . .”). The district court considered those factors and justified its upward variance. We AFFIRM Carey’s convictions and sentence.

Footnotes

[2] Opinion of the Court 24-14172 ____________________ Before WILLIAM PRYOR, Chief Judge, and LAGOA and WILSON, Cir- cuit Judges. PER CURIAM: Daquan Carey appeals his prison sentence of 120 months for possessing ammunition and a firearm as a felon. 18 U.S.C. § 922(g)(1). He argues that his sentence is substantively unreasona- ble. We affirm. Carey pleaded guilty to possession of ammunition and a fire- arm by a felon on separate dates. Id. A probation officer prepared a presentence investigation report describing his offenses. In 2021, officers stopped Carey, and a search of his car revealed ammuni- tion, two guns, and drugs. In 2023, after a witness identified Carey as the shooter in a drive-by shooting, law enforcement stopped him again. When the officers told him he was under arrest, he at- tempted to flee and hit a detective. Another detective tased Carey. The initial detective fell to the ground with Carey and was hospi- talized. As officers placed Carey in handcuffs, he reached into his waistband. The officers restrained him and found a loaded gun and drugs on him. He had been released on bond for state felon-in-pos- session charges at the time of the offenses. The report recounted Carey’s criminal history, including ju- venile adjudications for burglary, grand theft, drug possession, re- sisting an officer without violence, battery, and trespass, with re- peated probation violations. As an adult, he was convicted of a 24-14172 Opinion of the Court 3 computer threat offense involving guns, possession of drugs and drug paraphernalia, unlawful possession of a firearm, violation of a protective order, and resisting arrest without violence. In 2022, while Carey was released on bond for state charges related to the instant 2021 offense, he was charged with fleeing, felon in posses- sion of a firearm, possession of drugs and drug paraphernalia, and resisting an officer without violence. He was also charged with shooting a missile into a car, attempted first degree murder, and felon in possession of a firearm and ammunition for the 2023 shoot- ing, but those charges were dropped. The report also documented that his father was in prison and his half-brother died when Carey was a child. Carey had been diagnosed with conduct disorder and schizophrenia and had been injured in a car accident. The report grouped Carey’s convictions together and calcu- lated a base offense level of 20 because he possessed a semi-auto- matic firearm capable of accepting a large-capacity magazine, United States Sentencing Guidelines Manual § 2K2.1(a)(4)(B) (Nov. 2024), applied a 2-level increase because he possessed at least three guns, id. § 2K2.1(b)(1)(A), applied a 2-level increase because the of- fense involved a stolen firearm, id. § 2K2.1(b)(4)(A), applied a 4-level increase because he possessed a firearm in connection with other felony offenses, id. § 2K2.1(b)(6)(B), and applied a 3-level de- crease for acceptance of responsibility, id. § 3E1.1(a)-(b), for a total offense level of 25. The report calculated a criminal-history cate- gory of VI. It provided a guideline imprisonment range of 110 to

[137] months and statutory maximum terms of imprisonment of 10 years for one count and 15 years for his other count of conviction.