[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13612

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus DOMINIC JOHN TADDEO, JR.,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:22

- cr

- 00053

- RBD

- LHP

- 1

____________________ USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 1 of 132 Opinion of the Court 22

- 13612

Before N EWSOM , G RANT , and T JOFLAT , Circuit Judges.

PER CURIAM : Dominic John Taddeo, Jr. appeals his thirty

- six

- month sentence imposed after he pleaded guilty to one count of escaping from custody, in violation of 18 U.S.C. § 751(a). On appeal, Taddeo
argues that the District Court : (1) pro cedurally erred when it depart ed upward from the sentencing guidelines , and (2) imposed a substantively unreasonable sentence

. In response, the Government asserts that the District Court did not procedural ly err . Alternatively, it argues that even if the District Court erred, such error was harmless under United States v. Keene , 470 F.3d 1347 (11th Cir. 2006)

. Last , the Government contends that the District Court imposed a substantively reasonable

sentence

. We address each point in turn, and for the reasons stated below
, we affirm Taddeo’s sentence.
I.

In April 2022, a federal grand jury charged Taddeo with one count of escaping from custody, in violation of 18 U.S.C. § 751(a). Taddeo pleaded guilty witho ut a plea agreement. T he magistrate judge then issued a Report and Recommendation (“R & R ”) and recommended that the District Court accept Taddeo’s plea. W ith

no objections from Taddeo and the Government, the District Court a dopted the R & R and accepted Taddeo’s guilty plea. USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 2 of 1322

- 13612 Opinion of the Court 3
At Taddeo’s sentencing hearing
, the District Court adopted the factual statements and guideline applications contained in the Presentence I nvestigation Report (“PSR”)
, as neither Taddeo nor the Government objected to them. The PSR stated that Taddeo had been sentenced to twenty years’ incarceration in 1992 for multiple felonies from an earlier prosecution

. As to the current charge, the PSR explained that in February 2022, the Federal Bureau of Prisons (“BOP”) transferred Taddeo to a residential reentry center (“RRC”) to serve the remain ing 361 days of his 1992 sentence

. The next month, the BOP granted Taddeo a community pass to attend

a medical appointment

. When Taddeo did not return , an arrest warrant was issued. S ix days later , the U.S. Marshals Service apprehended Taddeo in Miami with around $5,000 and a fake driver’s license in the name of a deceased person.
The PSR first assigned Taddeo a base offense level of thirteen per U.S. Sent ’ g Guidelines Manual ( “ U.S.S.G. ” ) § 2P1.1 ( U.S. Sent ’ g Comm ’ n 2021)

. It then reduced that by four levels under U.S.S.G. § 2P1.1(b)(3) because Taddeo escaped from a nonsecure facility. It subtracted another two levels for Taddeo’s acceptance of responsibility under U.S.S.G. § 3E1.1(a). This resulted in a total offense level of seven. The PSR also detailed Taddeo’s decades of mob

- related federal convictions , including a conviction under the Racketeer Influenced and Corrupt Organizations Act, 1 in which Taddeo murdered

1 See 18 U.S.C. § 1961. USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 3 of 134 Opinion of the Court 22

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multiple rival faction members

. The PSR assigned Taddeo a subtotal criminal history score of three, which it increased by two points because he committed the instant offense while under a prior criminal sentence per U.S.S.G. § 4A1.1(d). This resulted in a criminal history score of five and placed Taddeo in criminal history category III.With a total offense level of seven and a criminal history category of III , the PSR calculated Taddeo’s guideline range at four to ten months’ incarceration. And it noted that the max term of imprisonme nt for a violation of § 751(a) is five years. However, t he PSR also identified Taddeo’s underrepresented criminal history asa factor that may warrant an upward departure or a sentence outside the guideline range.Before sentencing, Taddeo objected to any upward departure based on an underrepresentation of his criminal history. The Government did not object, but it moved for an upward departure based on U.S.S.G. § 4A1.3 , or f or an upward variance to a guideline

ran ge of thirty

- three to forty

- one months’ incarceration

. T he Government argued that Taddeo’s criminal history was significantly underrepresented because Taddeo had not received criminal history points for most of his prior convictions , either due to their age or the consolidated nature of his various offenses. I t urged the District Court to first depart horizontally to a criminal history category of VI, and second
, to depart vertically to an offense level of thirteen.
Taddeo opposed the Gove rnment’s motion and argued that his criminal history was properly calculated because it was clear USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 4 of 1322

- 13612 Opinion of the Court 5
that his prior offenses had aged out of the calculation. He also asserted that the Government’s requested sentence was excessive and disproportionate to sent ences given to similarly situated defendants based on statistical information from 2021 , which reported an average sentence of thirteen months for escape offenders

. Following its adoption of the factual statements and guideline applications in the PSR, the District Court addressed the Government’s motion. Both parties presented arguments, and the District Court granted the Government’s motion for an upward departure based on U.S.S.G. § 4A1.3

. Th e District Court found that Taddeo’s criminal history was “grossly underrepresented” by the guideline calculations and that Taddeo’s criminal history was greater than the max category VI. It also agreed with the Government’s suggested calculation method : first moving horizontally from criminal history category III to category VI, and then moving vertically down to an offense level of thirteen

. It found that this calculation produced a guideline range of thirty

- three to forty

- one months’ incarceration. Th e District Court did not discuss the intervening criminal history categories or offense levels, nor did it explicitly analyze the sufficiency of the guideline ranges such departures would have produced.
The District Court then discussed Taddeo’s prior criminal activities and noted that th ose activities had occurred some time
ago. It emphasized that Taddeo had a chance to show that the sentence had its intended effect of changing his criminal behavior, USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 5 of 136 Opinion of the Court 22

- 13612

promot ing respect for the law, and giving the public comfort that he had been redeemed or rehabilitated. Instead, the District Court found that Taddeo wasted that chance by escaping the RRC and remaining at large for six days.
The District Court also determined that the § 3553 (a) factors warranted a sentence of thirty

- three to forty

- one months because of : (1) Taddeo’s demonstrated lack of respect for the law, (2) the need for a just sentence and one that would adequately protect the public, and (3) Taddeo’s criminal history and ch aracteristics under § 3553. In granting the Government’s motion, the District Court specified that “in the event the departure was not the appropriate methodology, .

. . a variance under [ § ] 3553

. . . [was] appropriate

. And the sentence range would have been the same.” The District Court sentenced Taddeo to thirty

- six months’ incarceration, followed by a one

- year term of supervised release, to be served consecutively to the rest of his prior sentence. The District Court explained that it had conside red the PSR
, Taddeo ’s sentencing memorandum, the Government’s motion, the parties’ arguments, all the advisory sentencing guidelines
, and all the factors in § 3553 (a)

— regardless of whether it “specifically mentioned them in [its] oral statement.” After th e District Court allowed the parties

to object , Taddeo ’s attorney stated: “Based on the objections that we entered during the hearing, .

. . we’d object to the procedural and substantive reasonableness of the sentence.” On October 24, 2022, the District Court entered its judgment

. The same day, the District Court issued a written statement USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 6 of 1322

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of reasons that clarified that it would have issued the same sentence with or without the upward departure

. One day later, Taddeo appeal ed

. II. “Using a two

- step process, we review the reasonableness of a district court’s sentence for abuse of discretion.” United States v. Trailer , 827 F.3d 933, 935 (11th Cir. 2016) (per curiam). Normally, “[w]e first look to whether the district court committed any significant procedural error

. . . . [and t]hen, we examine whether the sentence is substantively reasonable in light of the totality of the circumstances and the § 3553(a) factors.” Id. at 936 (citations omitted). “Where a d efendant fails to clearly state the grounds for an objection in the district court, however, he waives the objection on appeal and we are limited to reviewing for plain error.” United States v. Zinn , 321 F.3d 1084, 1087 (11th Cir. 2003).

We can avoid rema nding a district court’s sentence based on a misapplication of a guidelines provision if a district court state s that the resolution of that issue “ does not matter to the sentence imposed after the § 3553(a) factors are considered.” Keene , 470 F.3d
at 134 9. When that occurs, we may decline to review the disputed procedural issue and, instead, affirm if “ the final sentence resulting from consideration of the § 3553(a) factors would still be reasonable.” Id

. In determining whether a sentence is reasonable
, we “assume that there was a guidelines error

— that the guidelines issue should have been decided in the way the defendant argued and the advisory range reduced accordingly

— and then ask whether the USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 7 of 138 Opinion of the Court 22

- 13612
final sentence resulting from consideration of the § 3553( a) factors would still be reasonable.” Id. Our review is deferential, “and the burden is on the defendant to prove that h is sentence is unreasonable in light of the record and § 3553(a).” Id. at 1350.
III.
A.
We first address Taddeo ’s procedural error argument. 2 See Trailer , 827 F.3d at 935

– 36. Taddeo contends that the District Court fail ed to expressly consider the intermediary criminal history categories between the original category of III and the ultimate category of VI.
Here, i t is undisputed that the District Court made a Keene statement when it explained that it would have imposed the same

sentence even without the challenged guidelines calculation. See Keene , 470 F.3d at 1348. So w e will assume that the District Court procedurally erred by failing to “ explicitly consider the next criminal history category and make a determination as to whether that new range [was] appropriate.” United States v. Valdes
, 500 F.3d 1291, 1292 n.1 (11th Cir. 2007) (per curiam)

. “ The question then is whether the [ thirty

- six

- month ] sentence the court i mposed is rea so nable, assuming exactly the same conduct and other

2 Because we decide that the District Court made a Keene statement and assume that the District Court made a procedural error
, it is i rrelevant whether Taddeo preserved that issue . Stated differently, whether we review the District Court’s ruling for an abuse of discretion or plain error results in the same conclusion. USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 8 of 1322

- 13612 Opinion of the Court 9
factors in the case, but using an advisory guidelines range of [four] to [ten] months.” Keene , 470 F.3d at 1350. As explained below, Taddeo’s sentence i s substantively reasonable. Thus, a ny purported procedural error was harmless. See i d. at 1349.
B.
Next, we review the substantive reasonableness of Taddeo’s sentence for abuse of discretion. See Gall v. United States
, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007) ; Trailer , 827 F.3d at 936

. Taddeo argues that the D istri ct C ourt abused its discretion and imposed a substantively unreasonable sentence because it (1 ) overlooked relevant § 3553(a) factors

— specifically the guidelines sentencing range and the need to avoid unwarranted sentenci ng disparities

— and (2) unreasonably focused on Tadd eo ’s prior criminal history. When reviewing a sentencing decision for an abuse of discretion, “we examine whether the sentence is substantively reasonable in light of the totality of the circumstances and the § 3553(a) factors.” Trailer , 827 F.3d at 936. A district court “shall impose asentence that is sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].”
18 U.S.C. § 3553(a). A district court “ imposes a substantively unreasonable sentence only ‘ when it (1) fails to afford consideration

to [the] relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a cl ear error of judgment in considering the proper factors. ’” United States v. Rosales

- Bruno , 789 F.3d 1249 , 1256 (11th Cir. 2015) USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 9 of 1310 Opinion of the Court 22

- 13612
(quot ing United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010 ) (en banc) )

. 3 “The decision about how much weight to assi gn a particular sentencing factor is ‘ committed to the sound discretion of the district court .’” Id. at 1254 (quoting United States v. Williams
, 526 F.3d 1312, 1322 (11th Cir. 2008) (per curiam) ). A nd it may attach “ great weight ” to one factor over others. United States v. Shaw
, 560 F.3d 1230, 1237 (11th Cir. 2009) (quoting Gall , 552 U.S. at 57, 128 S. Ct. at 600 ). “ The district court is not required to explicitly address each of the § 3553(a) factors or all of the mitigating ev idence. ” United States v. Taylor , 997 F.3d 1348, 1354 (11th Cir. 2021) (per curiam) . Instead
, “ [a]n acknowledgment [that] the district court has considered the defendant ’ s arguments and the § 3553(a) factors will suffice. ” United States v. Gonzalez , 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam)

. Ultimately, we may only vacate a defendant ’ s sentence “if we are left with the definite and firm

3 Those factors are: (1) the nature and circumstances of the offense and the history and characteristic s of the d efendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law,provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect the public from the defendant’s further crimes, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available ; (4) the sentencing guidelines’ recommended range; (5) any p ertinent policy statement issued by the Sentencing Commission ; (6) the need to avoid unwarranted sentence disparities; and (7) the need to provide restitution to any victims. 18 U.S.C. § 355 3 (a)(1)

– (7). USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 10 of 1322

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conviction that the district 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.” United States v. Carpenter , 803 F.3d 1224, 1234 (11th Cir. 2015) (quoting United States v. McBride , 511 F.3d 1293, 1297

– 98 (11th Cir. 2007) (per curiam)).Taddeo preserved his challenge to the substantive reasonableness of the sentence by seeking a lower, within

- range sentence. See Holguin Hernandez v. United States , 140 S. Ct. 762, 766

– 67 , 206 L. Ed. 2d 95 (2020) ( explaining that a request for a lower sentence than the one received sufficiently preserves a substantive reasonableness objection). Still, our review confirms that Taddeo’s

sentence was not substantively unreasonable under either the original guideline range or the guideline range reached by the District Court’s departure. To begin, Taddeo’s sentence is w ell below the statutory

- maximum sentence of five years , which “is an indicator of a reasonable sentence.” United States v. Stanley , 739 F.3d 633, 636 (11th Cir. 2014). Further, contrary to Taddeo’s assertion, the District Court considered the relevant § 3553(a) factors, and, in weighing those factors, arriv ed at a sentence within the range of reasonable sentences dictated by the facts here

. For example, t he D istrict C ourt explained why certain factors

— i.e., Taddeo’s serious criminal history
, his lack of respect for the law, the need to protect the USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 11 of 1312 Opinion of the Court 22

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public , a nd the need for a just sentence

— merited the sentence imposed

. To be sure, the District Court did not explicitly reference Taddeo’s disparity argument. But it satisfied its burden by indicating that it had considered Tadd eo ’s arguments [ id. at 27:3

– 5 ] and all the relevant § 3553(a) factors
, even if it did not specifically mention them. 4 See Gonzalez , 550 F.3d at 1324

. Nor can we say that the District Court unreasonably focused on Taddeo’s criminal history. Although his criminal history is s erious , the sticking point for the District Court was that Taddeo chose to escape the RRC after serving nearly twenty years in prison. In the District Court’s view, Taddeo wasted his opportunity to show that the sentence imposed had its intended effect of changing his criminal behavior . Instead, he proved that he could

4 Even i f the District Court had not met its burden, Taddeo failed to provide sufficient information regarding his disparity argument to determine whether other defendants were “similarly situated.” See United States v. Duperval
, 777 F.3d 1324, 1338 (11th Cir. 2015 ). True, Taddeo’s sentencing memorandum provides statistical information showing that the average sentence for escape offenders

— with criminal history categories of III or greater

— is thirteen months. “A well

- founded claim of disparity , however, assumes that apples are being compared to apples.” United States v. Docampo , 573 F.3d 1091, 1101 (11th Cir. 2009) (quoting United States v. Mateo

- Espejo , 426 F.3d 508, 514 (1st Cir. 2005)). The defendant has the burden of showing specific facts that establish a simi lar situation. See United States v. Azmat , 805 F.3d 1018, 1048 (11th Cir. 2015). Courts “need[] to have more than the crime of convictionand the total length of the sentences to evaluate alleged disparities. The underlying facts of the crime and all of the individual characteristics are relevant .” Id. (emphasis added). Taddeo did not show whether his sentence was disparate compared to sentences given to escapees with similar extensive criminal histories. USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 12 of 1322

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not be trusted with freedom for even a few hours. Thus, the District Court reasonably concluded that a thirty

- six

- m onth sentence was warranted under the § 3553(a) factors. Taddeo may disagree with the weighing of the relevant sentencing factors . B ut “[w]e do not reweigh relevant factors nor do we remand for re

- sentencing unless the district court committed a clear err or of judgment in weighing the § 3553(a) factors by arriving at a sentence outside the range of a reasonable sentence .” United States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009)

. That did not occur here. A fter considering the advisory

- guidelines

r ange, the PSR, Taddeo’s submitted materials and allocution, the parties’ arguments, and the § 3553(a) factors , the District Court determined that a thirty

- six

- month sentence was “sufficient but not greater than necessary to achieve the statutory purposes o f sentencing.” We do not have a “ definite and firm conviction that it was substantively unreasonable, a clear error in judgment, [or] anabuse of discretion, for the district court to conclude to the contrary.” Irey , 612 F.3d at 1222.

IV. Accordingly, even if Taddeo’s guideline departure argument has merit and we focus only on the original guideline range of four

to ten months, we stil l conclude that his sentence is substantively reasonable . Therefore, we affirm.

AFFIRMED. USCA11 Case: 22-13612 Document: 33-1 Date Filed: 10/02/2023 Page: 13 of 13