[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11124

Non-Argument Calendar

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D.C. Docket No. 8:17-cr-00343-VMC-AAS-1

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

 versus

EMVORY BURTON, 

 Defendant–Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(December 11, 2018)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Emvory Burton appeals his 151-month sentence for possession with intent to 

distribute cocaine base. Burton argues that his sentence is procedurally 

unreasonable because the District Court erroneously afforded the United States 

Sentencing Guidelines (“Guidelines”) a presumption of reasonableness and 

because the Court failed to respond to two of his arguments for a downward 

variance under 28 U.S.C. § 3553(a).

We review the procedural reasonableness of a criminal sentence for abuse of 

discretion. United States v. Livesay, 587 F.3d 1274, 1278 (11th Cir. 2009) (citation 

omitted).

We hold that the District Court abused its discretion by applying a 

presumption of reasonableness to the Guidelines and thus vacate Burton’s sentence 

and remand this case for rehearing and resentencing.1

 Because we write for the 

 1 Burton offers two other arguments on appeal. 

He argues that the District Court erred by designating him a career offender because his 

two prior convictions under Florida Statute 893.13 are not “controlled substance offenses” within 

the meaning of § 4B1.1 of the Guidelines. The argument goes that because Florida law treats his 

prior convictions as strict-liability offenses, and thus requires no mens rea, the offenses cannot 

constitute offenses under § 4B1.1. Our precedent forecloses that argument. See United States v. 

Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (holding that Florida Statute § 893.13(1) constitutes 

a “controlled substance offense” as defined in § 4B1.2(b), which in turn defines the same for 

purposes of § 4B1.1). We are bound by prior panel precedent unless and until that holding is 

overruled en banc or by the Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th 

Cir. 2009).

He also argues that the District Court erred by comparing his criminal history to that of a 

defendant who had, the same day, appeared before the Court for sentencing. Because this 

precise circumstance is unlikely to arise at rehearing and resentencing, we do not address the 

argument on appeal. 

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parties and for the District Court, we set out facts only as they are needed to 

support our analysis. 

I.

Burton argues that the District Court abused its discretion by affording a 

presumption of reasonableness to the Guidelines. We agree. 

The Guidelines are “merely ‘the starting point and the initial benchmark’” 

for a sentence. United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015)

(quoting Gall v. United States, 552 U.S. 38, 49, 128 S. Ct. 586, 596 (2007)). For 

that reason, a sentencing court “may not apply a ‘presumption of reasonableness’

to the Guidelines range.” United States v. Carpenter, 803 F.3d 1224, 1233 (11th 

Cir. 2015) (quoting Nelson v. United States, 555 U.S. 350, 352, 129 S. Ct. 890, 892

(2009) (per curiam)). The court may, however, “determine, on a case-by-case 

basis, the weight to give the Guidelines, so long as that determination is made with 

reference to the remaining section 3553(a) factors.” United States v. Hunt, 459 

F.3d 1180, 1185 (11th Cir. 2006).

The District Court here made two statements during the sentencing hearing 

that indicate that it viewed the Guidelines as presumptively reasonable:

• “[T]he Eleventh Circuit tells me that a sentence within the guidelines is 

deemed a fair and just and appropriate sentence, but that we have the 

authority to depart upwards, downwards, and most certainly have the 

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authority—and, I would say, also the obligation to do the right thing, which I 

take it very seriously.” 

• “I note that [the imposed sentence is] within the guidelines, which is 

determined to be by the Eleventh Circuit reasonable as long as the Court 

looks at it and determines that a departure is not necessary, and that’s what 

I’ve done.” 

The Government offers three responses, none of which we find persuasive. 

As to the first statement, the Government argues that the District Court did 

not abuse its discretion because the Court considered all of the § 3553(a) factors. 

The Government’s logic is mistaken. What a court considers says nothing about 

the lens through which that consideration occurs. Said differently, what matters is 

not just the factors that go into the sentencing hopper but how those factors are 

weighed. That this Court deferentially reviews a sentence but requires the 

sentencing court to impose sentences without any attendant presumption is a way 

of placing faith in the sentencing court, as the hearer of the matter in the first 

instance, so long as the court is truly exercising its discretion, not that of the 

Guidelines. 

The Government also argues that the District Court did not error because the 

Court recognized its authority to depart from the Guidelines. Again, however, a 

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court’s recognition of its ability to depart says nothing about how much deference 

it should apply to the Guidelines, if any, before it does so. 

As to the second statement, it argues that the District Court’s mere 

recognition of this Court’s deference to the Guidelines does not indicate that the 

District Court itself applied any presumption of reasonableness. But language and

logic are intricately connected. It would be odd for the District Court to discuss 

this Court’s deference if that deference did not somehow affect the manner in 

which the District Court envisioned its role at sentencing.

We of course recognize that sentencing occurs in real time and that the 

sentencing judge speaks extemporaneously into a record. For that reason, we do 

not vacate every sentence when the record contains “some statements that could be 

interpreted as presumptions in favor of the Guidelines.” See Hunt, 459 F.3d at 

1185. But here, the record does not indicate that the District Court’s deference to 

the Guidelines was specific to Burton’s case. Cf. id.at 1185–86 (upholding a 

sentence as procedurally reasonable when the judge explained his “practice to 

follow the Sentencing Guidelines unless [he is] shown that there’s some good 

reason not to” because he twice referenced the proper weight to give to the 

Guidelines “in [that] particular case” (alteration omitted)). 

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II.

Burton also argues that the District Court erred by failing to adequately 

respond to two of his arguments for a variance under § 3553(a). 

He urged the Court to vary downward because when he entered his guilty 

plea, both he and the Government operated under the assumption that he would not 

be sentenced as a career offender. At the time, one of Burton’s prior convictions 

was not listed on the report available to the parties. This discrepancy increased his 

sentence perhaps five-fold between what he would have received as a non-career 

offender and what the Government ultimately recommended.

2

 

He also urged the District Court to vary downward because his qualifying 

convictions were controlled substance offenses, not crimes of violence. Burton 

pointed to a 2016 report by the Sentencing Commission that finds that those 

persons convicted of the former offenses are less likely to reoffend than those 

convicted of the latter offenses and thus recommended that Congress amend the 

career-offender directive, see 28 U.S.C. § 994(h), to treat the former less harshly. 

We do not address this set of arguments because the District Court on 

remand has a new opportunity to address the reasons for its selected sentence. At 

 2 Before the conviction became known, the Guidelines called for a sentence of between 

30 and 37 months. With knowledge of the conviction, however, the range increased to between 

151 and 188 months, with the Government recommending the lowest end of that range. 

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the hearing, we encourage the Court to further explain whether these arguments 

merit a downward variance under § 3553(a). 

III.

We doubt neither that the District Court recognized the gravity of its duty 

when imposing Burton’s sentence nor that it gave the matter anything less than its 

careful attention. But our review of a sentence requires not the Court’s earnestness 

but its reasoning. When reviewing for abuse of discretion, reasoning is all that we 

have to guide our analysis. Without the reasoning, then, we cannot ensure that the 

sentence imposed conforms with what the law requires—reasoned consideration of 

arguments fashioned with an eye toward the statutorily enumerated factors under 

§ 3553(a). We accordingly VACATE Burton’s sentence and REMAND to the 

District Court for rehearing and resentencing.

SO ORDERED. 

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