[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13118

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

DEUNATE TAREZ JEWS, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 1:20-cr-00211-CLM-SGC-1

____________________

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2 Opinion of the Court 23-13118

Before ROSENBAUM, NEWSOM, andGRANT, Circuit Judges.

PER CURIAM:

Deunate Tarez Jews appeals his 51-month sentence for one 

count of possession of a firearm by a convicted felon.1 Jews argues 

that the district court imposed a substantively unreasonable 

sentence because it gave undue weight to an impermissible factor 

by treating Alabama state law as binding when crafting his federal 

sentence. After consideration, we agree with Jews. We will, 

therefore, vacate his sentence and remand.

We generally review the reasonableness of a sentence under

a deferential abuse-of-discretion standard of review. Gall v. United 

States, 552 U.S. 38, 41 (2007). “To be upheld on appeal, a sentence 

must be both procedurally and substantively reasonable.” United 

States v. Green, 981 F.3d 945, 953 (11th Cir. 2020) (quotation marks 

1 The government asserts Jews’s appeal has been rendered moot by his release 

from prison. However, Jews has alleged consequences stemming from his 

expired sentence—in particular, he is serving a three-year term of supervised 

release, and his success in this appeal could alter his term of supervised release.

See United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (explaining that to 

satisfy Article III’s case-or-controversy requirement, a defendant who wishes 

to continue his appeal after the expiration of his sentence must show a 

“continuing injury” or “collateral consequence”); see also Dawson v. Scott, 50

F.3d 884, 886 n.2 (11th Cir. 1995) (explaining that a term of supervised release 

is part of the sentence that involves some restrictions upon liberty while it is 

still being served, and that success could alter the supervised release portion 

of the sentence such that the appeal would not be moot.). Thus, Jews’s appeal 

isn’t moot.

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23-13118 Opinion of the Court 3

omitted). When reviewing the reasonableness of a sentence, we 

conduct a two-step inquiry, first ensuring that there was no 

significant procedural error, and then examining whether the 

sentence was substantively reasonable. United States v. Sarras, 

575 F.3d 1191, 1219 (11th Cir. 2009).2 To preserve a substantivereasonableness challenge, one may advocate for a less severe 

sentence and seek a sentence lower than what was imposed. 

Holguin-Hernandez v. United States, 589 U.S. 169, 174–75 (2020). 

We examine whether a sentence is substantively reasonable 

by considering the totality of the circumstances. Gall, 552 U.S. at 

51. The district court must impose a sentence “sufficient, but not 

greater than necessary, to comply with the purposes” listed in 

§ 3553(a)(2), including the need “to reflect the seriousness of the 

offense, to promote respect for the law, and to provide just 

punishment for the offense,” as well as to deter criminal conduct, 

and protect the public from the defendant’s future criminal 

conduct. See 18 U.S.C. § 3553(a). Additional considerations include 

the nature and circumstances of the offense, the history and 

characteristics of the defendant, the applicable guideline range, the 

need to avoid unwarranted sentence disparities among similarly 

situated defendants, and the pertinent policy statements of the 

Sentencing Commission. Id. § 3553(a)(1)–(7). “The party 

challenging a sentence has the burden of showing that the sentence 

is unreasonable in light of the entire record, the § 3553(a) factors, 

2 Because Jews argues only that his sentence is substantively unreasonable, we 

won’t consider whether the district court committed any procedural errors.

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and the substantial deference afforded sentencing courts.” United 

States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). 

The weight due each § 3553(a) factor lies within the district 

court’s sound discretion, and we will not substitute our judgment 

for the district court’s. United States v. Joseph, 978 F.3d 1251, 1266 

(11th Cir. 2020). Still, a district court abuses its discretion when it 

(1) fails to consider 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 by balancing the 

proper factors unreasonably. United States v. Kuhlman, 711 F.3d 

1321, 1326–27 (11th Cir. 2013).

A sentence, regardless of length, can be unreasonable if it 

was substantially affected by an impermissible factor. United States 

v. Clay, 483 F.3d 739, 745 (11th Cir. 2007). Whether a factor 

considered by the district court at sentencing is impermissible is a 

legal question reviewed de novo. United States v. Velasquez

Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). “A sentence that is 

based entirely upon an impermissible factor is unreasonable 

because such a sentence does not achieve the purposes of 

§ 3553(a).” Id. (quotation marks omitted). “[T]he party 

challenging the sentence bears the initial burden of establishing 

that the district court considered an impermissible factor at 

sentencing.” United States v. Williams, 456 F.3d 1353, 1361 (11th 

Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 

552 U.S. 85 (2007). If the court considered an impermissible factor, 

we will vacate the sentence and remand unless the error is 

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23-13118 Opinion of the Court 5

harmless. Id. at 1362. An error is harmless “if the record as a whole 

shows the error did not substantially affect the district court’s 

selection of the sentence imposed.” Id. “The party defending the 

sentence has the burden of establishing the error was harmless.” 

Id.

Alabama’s Youthful Offender (“YO”) statute provides that 

no determination made under its provisions shall disqualify any 

youth from public office or employment, impair the youth’s rights 

to receive any license granted by public authority, or be deemed a 

conviction of crime. Ala. Code § 15-19-7(a). However, “if he is 

subsequently convicted of crime, the prior adjudication as youthful 

offender shall be considered.” Id. (emphasis added).

Jews argues that the district court considered an 

impermissible factor when it said that Alabama law “required” it to 

consider the YO adjudication as his sentencing because federal law, 

not state law, governs federal sentencing. Re-Sentencing 

Transcript at 10.

We agree. The district court imposed an unreasonable 

sentence because the court gave significant weight to Alabama law

by stating that it was “required” under Alabama law to consider 

Jews’s YO adjudication, rather than grounding its determination in 

the § 3553(a) factors. Id.

The government argues that we should uphold the sentence 

because any error on the district court’s part is harmless for two 

reasons. First, the government contends that the district court had 

to consider the YO adjudication because the court had to consider 

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6 Opinion of the Court 23-13118

all the § 3553(a) factors to guide its discretion, and one of those 

factors is “the history and characteristics of the defendant.” 18 

U.S.C. § 3553(a)(1). Second, the government says that if 

considering the YO adjudication was error, it didn’t result in a 

higher sentence because the district court imposed a sentence 

equivalent to time served.

We disagree on both scores. As to the first contention, it’s 

true—as Jews acknowledged in his briefs—that the district court 

could have considered the YO adjudication as part of the § 3553(a) 

factors. But it didn’t. And we can’t say that it didn’t give special 

weight to the YO adjudication based on its understanding that it 

had to consider it under Alabama law. Regarding the second 

argument, although the district court imposed a prison sentence 

equivalent to time served, it noted that it considered the high-end 

of the Guidelines because of the YO adjudication, and it also kept 

the supervised release portion of the sentence. If the court hadn’t 

considered the YO adjudication, it seems entirely possible that it

might have shortened the term of supervised release in light of the 

fact that the prison sentence had already been served. In short, we 

can’t say that the district court’s error was harmless.

Because we conclude (1) that the district court imposed a 

substantively unreasonable sentence, and (2) that its error wasn’t 

harmless, we vacate and remand for resentencing.

VACATED AND REMANDED.

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23-13118 GRANT, J., Dissenting 1

GRANT, Circuit Judge, dissenting:

I would affirm Deunate Jews’s sentence on the grounds that 

any error committed by the district court during his resentencing 

was harmless. Although the district court did state that it was 

bound to consider Jews’s youthful offender adjudication under 

Alabama state law, it also repeatedly stated that its intent was to 

impose a prison sentence equivalent to the time Jews had already 

served. As the court stated in response to Jews’s objection 

regarding the youthful offender adjudication issue, it was “not 

going to make a difference either way, because [the court had] 

sentenced in a way that he gets to go home today.”

Though all seem to agree that the error thus did not alter 

the amount of actual prison time Jews would serve, the majority 

notes that it is possible that the district court could have chosen a 

period of supervised release shorter than three years. But Jews did 

not object to his supervised release term below. Nor is there any 

indication from the record that the court’s determination that it 

was bound by Alabama law to consider Jews’s youthful offender 

adjudication bore any relationship to its selection of his supervised 

release term. Because I would affirm the sentence on harmlessness 

grounds, I respectfully dissent.

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