UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. Case No. 5:20cr6-TKW

DERRICK R. BROKENBURR,

Defendant.

_______________________________/

OPINION AND ORDER

Defendant pled guilty to misdemeanor possession of marijuana within Tyndall 

Air Force Base. The guideline range calculated in the Presentence Investigation 

Report (PSR) was 0 to 6 months. At the sentencing hearing, Defendant and the 

Government asked for a sentence of probation, but the magistrate judge sentenced 

Defendant to 60 days of incarceration, followed by 18 months of supervised release, 

a $1,000 fine, and a $25 special monetary assessment. This is Defendant’s appeal.

1

Defendant argues on appeal that the sentence should be vacated because it is 

substantively unreasonable.2 The Court reviews this claim under the deferential 

1

 The Court has jurisdiction. See 18 U.S.C. §§3402, 3742(h); Fed. R. Crim. P. 58(g)(2)(B); 

N.D. Fla. Loc. R. 88.2.

2

 Defendant does not challenge the procedural reasonableness of his sentence, nor could he 

because the record shows that the magistrate judge properly calculated the guideline range, did not 

treat the guidelines as mandatory, considered §3553(a) factors, did not base the sentence on clearly 

erroneous facts, and adequately explained the sentence. See United States v. Umana, 411 F. App’x 

249, 252 (11th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
2

abuse of discretion standard of review. United States v. Rosales-Bruno, 789 F.3d 

1249, 1254–56 (11th Cir. 2015).

The sentencing court (here, the magistrate judge) abuses its discretion when 

it fails to consider relevant factors that were due significant weight, gives an 

improper or irrelevant factor significant weight, or commits a clear error of judgment 

in considering the proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th 

Cir. 2010) (en banc). The reviewing court (here, this Court) will not vacate a 

sentence unless the court possesses a “definite and firm conviction that the

[sentencing] 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.” Id. at 1190 (quoting United States v. Pugh, 515 

F.3d 1179, 1191 (11th Cir. 2008)).

The fact that the sentence imposed by the magistrate judge is well below the 

one-year statutory maximum is an indication of its reasonableness. See United 

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Likewise, the fact that the 

sentence is within the range calculated by the Sentencing Guidelines suggests that it 

is reasonable. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)

(“Although we do not automatically presume a sentence within the guidelines range 

is reasonable, we ‘ordinarily . . . expect a sentence within the Guidelines range to be 

reasonable.’”) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).
3

Despite the fact that the sentence is towards the low-end of the guideline

range, Defendant claims that it is unreasonable because (1) the magistrate judge 

“failed to give [Defendant]’s case individualized consideration” and (2) the sentence 

was “unnecessarily harsh and most certainly greater than necessary to achieve the 

goals of sentencing.” The record refutes both claims.

First, contrary to Defendant’s argument that the “only” factor personal to 

Defendant cited by the magistrate judge was that Defendant was on probation from 

two previous cases3 when he committed the offense in this case, the record reflects 

that all the findings in the PSR were incorporated into the sentence and that the 

magistrate judge specifically referred to various paragraphs of the PSR when 

explaining the sentence. The magistrate judge not only referred to the paragraphs 

discussing Defendant’s prior convictions and sentences, but he also referred to the 

paragraphs discussing Defendant’s family situation, employment status,4and his 

daily marijuana usage before he was placed on pretrial supervision. Additionally, 

after the magistrate judge asked whether there were any objections to his findings or 

the sentence imposed, Defendant clarified—and the magistrate judge specifically 

acknowledged—that he was not on “probation” at the time of this offense but rather 

3

 Defendant had two prior state court convictions (in 2011 and 2012) for drug possession 

for which he was sentenced to 40 days in jail and terms of probation.

4

 The PSR indicated that Defendant was unemployed, but defense counsel advised the 

magistrate judge that Defendant had obtained employment after the PSR was prepared.
4

was only “under sentence still” because of unpaid financial obligations. 

Accordingly, there is no merit to Defendant’s claims that his “probationary status”

was “the only factor the [magistrate judge] considered” or that this fact—which 

Defendant concedes “is relevant and bears some consideration”—was “taken out of 

context.”

Second, contrary to Defendant’s argument that his sentence is “unnecessarily 

harsh” and “greater than necessary to achieve the goals of sentencing,” the Court has 

no basis to conclude that the magistrate judge committed a clear error of judgment 

in weighing the §3553(a) factors. The sentencing court (not the reviewing court) is 

charged with determining the weight to be afforded to each of the §3553(a) factors,

and the sentencing court has the discretion to give one factor more weight than 

others. See United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) 

(“The decision about how much weight to assign a particular sentencing factor is 

‘committed to the sound discretion of the [sentencing] court.’”) (quoting United 

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)).

Here, the magistrate judge explained that the sentence was intended to “act as 

a general deterrent to others for similar conduct and a specific deterrent with respect 

to this Defendant” and stated that “additional punishment [was] warranted [because 

it was] particularly serious to commit a crime while . . . under the sentence of another 

court.” Deterrence (general and specific) and promoting respect for the law are 
5

proper sentencing goals, see 18 U.S.C. §3553(a)(2)(A)-(C), and the sentence 

imposed by the magistrate judge furthers these goals. See, e.g., United States v. 

Cruz-Rodriguez, 735 F. App’x 1019, 1022 (11th Cir. 2018) (“[T]here was nothing 

improper in the district court’s considering the length of [the defendant’s] prior

illegal reentry sentence, which did not deter him from reentering the United States, 

in determining what length of sentence would adequately deter him in the future.”). 

The fact that the magistrate judge could have crafted a different sentence that also 

furthered these goals is immaterial because the “sentence need not be the most 

appropriate one, it need only be a reasonable one.” Irey, 612 F.3d at 1191; see also 

Gall, 552 U.S. at 51 (“The fact that the [reviewing] court might reasonably have 

concluded that a different sentence was appropriate is insufficient to justify reversal 

of the [sentencing] court.”).

Accordingly, for the reasons stated above, Defendant’s sentence is 

AFFIRMED.

5

5

 The Court has not overlooked Defendant’s argument regarding the public health risks of 

incarcerating him during the ongoing public health crisis related to the COVID-19 virus. See Doc. 

8, at 4-5. However, not only was this argument (and others) improperly raised for the first time in 

the reply brief, see United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994), the Court fails to 

see how it has any bearing on the question of whether the magistrate judge abused his discretion 

in imposing the sentence that he did. There is no indication in the record that the magistrate judge

was even aware of the virus when the sentence was imposed on January 15, 2020, and the Court 

sees nothing in §3553(a) or the Sentencing Guidelines requiring—or even allowing—the 

sentencing court to consider the conditions Defendant may face while in confinement when 

determining the appropriate sentence. Moreover, it is noteworthy that had Defendant started 

serving his sentence when it was imposed, cf. Doc. 5 (granting Defendant’s motion to stay 

imposition of the sentence pending disposition of this appeal), he would have been released by 
6

Additionally, it is ORDERED that any motion for rehearing shall be filed 

within 7 days of the date of this Opinion, and the response shall be filed 7 days after 

service of the motion. If no motion is filed, the Clerk enter the judgment or mandate

and close the case file.

DONE and ORDERED this 27th day of March, 2020.

T. Kent Wetherell, II 

T. KENT WETHERELL, II

UNITED STATES DISTRICT JUDGE

now and he would not be facing the risk—whatever it might be—of reporting to prison during the 

public health crisis.