United States v. Johnathan Lee Brown

USCA11 Case: 21-13890 Date Filed: 08/04/2022 Page: 1 of 5

[DO NOT PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-13890 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHNATHAN LEE BROWN,

Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 4:21-cr-00007-MLB-WEJ-1 ____________________

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Before JILL PRYOR, BRANCH and DUBINA, Circuit Judges. PER CURIAM: Appellant Johnathan Lee Brown appeals the district court’s imposition of his 33-month imprisonment sentence, which is at the low end of the guideline range, for failure to register as a sex of- fender. Brown argues that the district court abused its discretion by denying his motion for a downward departure because his crim- inal history category overrepresented the seriousness of his of- fenses. He also argues that his sentence was substantively unrea- sonable because the district court did not adequately weigh the 18 U.S.C. § 3553(a) factors that were entitled to greater consideration, particularly his personal history and characteristics. Having read the parties’ briefs and reviewed the record, we affirm Brown’s sen- tence. I.

The sentencing court may depart downward from a defend- ant’s guideline range “[i]f reliable information indicates that the de- fendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(b)(1). We lack jurisdiction to review a district court’s dis- cretionary refusal to grant a defendant a downward departure un- der § 4A1.3(b)(1). United States v. Rodriguez, 34 F.4th 961, 975 (11th Cir. 2022). A limited exception exists when a district court believes it lacks authority to grant a downward departure. United

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States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). However, that exception is a narrow one, and we maintain a presumption that the district court’s silence on its power to grant such an appli- cation is construed as a proper understanding of its discretion. United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). A review of the record demonstrates that we lack authority to review the district court’s discretionary decision to deny Brown a downward departure under § 4A1.3 because the record is devoid of evidence rebutting the presumption that the district court be- lieved that it lacked the authority to depart. “[W]hen nothing in the record indicates otherwise, we assume the sentencing court un- derstood it had authority to depart downward.” Id. Accordingly, we will not review this issue. II.

We review the reasonableness of a sentence under the def- erential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party challenging a sen- tence bears the burden of proving that the sentence is unreasonable when examining the record in totality, the 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). The weight given to any specific § 3553(a) factor is commit- ted to the sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We will sometimes “affirm

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the district court even though we would have gone the other way had it been our call.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). However, a district court can abuse its discretion when it (1) fails to consider relevant factors that were due significant weight, (2) gives an im- proper or irrelevant factor significant weight, or (3) commits a clear error of judgment by balancing the proper factors unreasonably. Id. The failure to discuss mitigating evidence does not indicate that the court erroneously ignored or failed to consider this evi- dence. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). The district court’s failure to specifically mention at sentenc- ing certain mitigating factors does not “compel the conclusion that the sentence crafted in accordance with the § 3553(a) factors was substantively unreasonable.” United States v. Snipes, 611 F.3d 855, 873 (11th Cir. 2010). The record demonstrates that the district court did not abuse its discretion by imposing the 33-month sentence. In reach- ing its sentencing decision, the district court emphasized the need for the sentence imposed to promote respect for the law, to afford adequate deterrence, and to protect the public. The district court reasoned that the 33-month sentence was necessary partly because a prior 22-month sentence for the same conduct of failure to regis- ter as a sex offender did not deter Brown. The district court also noted that Brown’s repetitive and consistent failure to register in- dicated a lack of respect for the law. Further, the district court

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stated that the failure to register endangers the community, which is a strong factor that Congress considered in enacting the law. Contrary to Brown’s assertion, the district court considered all the relevant factors under section 3553(a), and it considered Brown’s mitigation evidence. Moreover, the district court’s sen- tence was at the low end of the guideline range of 33-41 months, and we ordinarily consider sentences within the guideline range and below the statutory maximum, here ten years, to be an indica- tion of a reasonable sentence. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Brown cannot meet his burden of showing that the 33-month sentence is unreasonable considering the entire record. Accordingly, based on the aforementioned reasons, we af- firm the district court’s imposition of Brown’s 33-month sentence. AFFIRMED.