[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11030

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D.C. Docket No. 6:12-cr-00012-BAE-GRS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

ANTWOINE MAURICE ALLEN, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

________________________

(December 31, 2013)

Before CARNES, Chief Judge, HULL and GARZA,

* Circuit Judges.

PER CURIAM: 

 * Honorable Emilio M. Garza, United States Circuit Judge for the Fifth Circuit, sitting by 

designation.

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Antwoine Maurice Allen appeals his 120-month sentence, imposed after he 

pleaded guilty to distribution of crack cocaine in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(C). Allen contends that the district court’s 33-month upward 

variance from his guidelines range, which was 70 to 87 months, is substantively 

unreasonable. The statutory maximum sentence for Allen’s offense of conviction 

is 240 months. See id. § 841(b)(1)(C). 

Allen argues that the district court’s consideration of his prior robbery 

conviction improperly focused on the violent conduct of two other men who, while 

Allen served as a lookout, robbed and attempted to rape a woman who was eight 

months pregnant. He also argues that the district court improperly based the 

upward variance on its disapproval of his tattoos and his sketchy record of 

employment. 

We review a sentencing decision for reasonableness, applying a deferential 

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 

591 (2007). That standard allows a range of choice for the district court, so long as 

its choice does not constitute a clear error of judgment. United States v. Irey, 612 

F.3d 1160, 1189 (11th Cir. 2010) (en banc). As we have explained, “the relevant 

question when reviewing for abuse of discretion is not whether we would have 

come to the same decision if deciding the issue in the first instance. The relevant 

inquiry, rather, is whether the district court’s decision was tenable, or, we might 

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say, ‘in the ballpark’ of permissible outcomes.” Id. (alterations and quotation 

marks omitted). While a district court’s justification for varying from the 

guidelines range must be sufficiently compelling to support the degree of the 

variance, id. at 1186, there is no presumption that a sentence outside of the 

guidelines range is unreasonable, and we must give the district court’s decision to 

impose it due deference. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Allen, as the 

party challenging the sentence, bears the burden of showing that it is unreasonable 

in light of the record and the 18 U.S.C. § 3553(a) factors.1 See United States v. 

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The district court provided several justifications for exercising its discretion 

to vary above the guidelines range in sentencing Allen. It focused primarily on his 

criminal history record and his history of violating the terms of probation (once) 

and parole (twice) that were imposed after an earlier conviction. Referring to the 

presentence investigation report, the facts of which were undisputed, the court 

 1 The § 3553(a) factors include: the nature and circumstances of the offense and the 

history and characteristics of the defendant; the need for the sentence to reflect the seriousness of 

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

need for deterrence; the need to protect the public; the need to provide the defendant with 

necessary educational or vocational training or medical care; the kinds of sentences available; the 

sentencing guidelines range; pertinent policy statements of the Sentencing Commission; the need 

to avoid unwanted sentencing disparities; and the need to provide restitution to victims. 18 

U.S.C. § 3553(a). 

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observed that Allen’s “criminal history is most egregious.”2 The court pointed out 

that if Allen had been convicted of count 1 as charged in the indictment, his

mandatory minimum sentence would have been ten years imprisonment with a 

maximum sentence of life.3

 The court noted that Allen had been involved in prior 

crimes of violence, that his parole had been revoked “on numerous occasions,” and 

that “each time it seemed as if any period of supervised release or probation 

resulted in [Allen’s] having violated that” accompanied by a judicial determination 

that he was in violation. Referring to Allen’s plea agreement, the court concluded, 

“He’s lucky to get the deal that he’s got.” 

In considering Allen’s criminal history, the district court discussed Allen’s 

prior conviction for robbery. The facts of it were that Allen, along with Alvin 

Adkins and John Ferguson, followed a woman as she was driving to her 

apartment.4

 After she arrived and was walking toward the apartment, Adkins and 

Ferguson approached her while Allen waited in the car for them to do it. Adkins 

held her at gunpoint and pushed her to the ground. Her husband came out of the 

apartment, and Adkins forced her and her husband into their apartment at gunpoint. 

Adkins attempted to rape the woman, who was eight months pregnant, and then 

 2 The parties did not object to the presentence investigation report, and the district court 

adopted the report’s factual statements as its findings of fact. 

3 Count 1 charged Allen and two other men with conspiracy to possess with intent to 

distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 

and 846. That count and three others were dismissed as part of Allen’s written plea agreement.

4 Allen did not object to the facts of the robbery that were recounted in the PSR. 

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forced her to perform oral sex on him before leaving the apartment and stealing the 

woman’s car. Allen followed, driving the vehicle that had been used to get the 

assailants to the scene of the crime. 

Contrary to Allen’s argument, the sentence hearing transcript clearly shows 

that the district court recognized it was Adkins and Ferguson, and not Allen 

himself, who actually committed the acts of violence. The court did not abuse its 

discretion in considering the nature of the crime and Allen’s role in it. 

As for Allen’s tattoos, the district court noted some of the things that Allen 

had chosen to have inked on his body: “‘Death.’ Skulls with ‘B’ and ‘4’ in the 

eyes, ‘dishonor’ and ‘bonded by loyalty,’ with a gun on his left arm, ‘baby boy’ on 

his right wrist and ‘sex, money, murda,’ and a depiction of a gun on his right 

biceps.”5

 The court referred to the tattoos as a “badge of honor” for a person who 

is unlikely to be deterred from crime except by imprisonment. In the same 

discussion, the court also commented that Allen was “a dangerous person,” who 

had “been before the criminal justice system” but had “never been dealt with 

adequately.” 

 5 The PSR described all of Allen’s tattoos as follows: 

“Death,” skulls with “B” and “4” in the eyes, “Dishonor,” and “Bonded by Loyalty” with 

a gun on his left arm; “Renee” and “Myriah” in a scroll on his right forearm; “Tyiamna” 

and “Baby Boy” on his right wrist; and “Sex Money Murda” and a depiction of a gun on 

his right biceps.”

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Defense counsel asserted to the district court, without any evidence to 

support his assertion, that Allen had gotten “most” of his tattoos –– he did not 

specify which ones –– when he was seventeen years old, and he argued that “a lot 

of 17-year-olds do that.” In his brief to this Court, Allen asserts without citation to 

any authority that the sentencing guidelines “do not allow for an upward variance 

over tattoos.” If the district court had based the upward variance solely on Allen’s 

tattoos, he would have a better argument. The record reveals, however, that the 

district court considered a lot more than Allen’s tattoos. In fact, the court’s 

primary focus was on Allen’s criminal history and his history of repeatedly 

violating terms of release from custody. If consideration of the nature or content of 

some of the tattoos did factor into the district court’s sentencing determination, it 

was as part of the history and characteristics of the defendant. See 18 U.S.C. § 

3553(a)(1); cf. United States v. Hernandez-Villanueva, 473 F.3d 118, 121, 123 (4th 

Cir. 2007) (upholding a sentence as substantively reasonable when the district 

court considered, among other things, the defendant’s tattoos, which evidenced 

gang affiliation). Two tattoos of guns, one of which was accompanied with the 

words “sex, money, murda,” suggested to the district court that Allen might return 

to his criminal past, which included a robbery in which one of the victims was 

sexually assaulted.

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The district court also considered Allen’s sporadic work history. Like the 

tattoos, his employment record is part of his history and characteristics, which the 

district court properly factored into its § 3553(a) analysis. See 18 U.S.C. 

§ 3553(a)(1), (a)(2)(D); United States v. Coleman, 635 F.3d 380, 383 (8th Cir. 

2011) (upholding a sentence as substantively reasonable when the district court 

considered, among other things, the defendant’s “complete lack of gainful 

employment”). Also like the tattoos, Allen’s work history was not the only thing 

that the district court considered when making its sentencing determination. 

When sentencing Allen, the district court stated that it had considered the § 

3553(a) factors and reiterated that its justifications for an upward variance were “a 

horrendous criminal record, numerous revocations for failure to live within the 

terms of probation and the state [criminal] record, [and] a very checkered history 

about any employment.” The court then varied upward from the top of the 

guidelines range by 33 months, sentencing Allen to 120 months imprisonment, 

which is only half of the 240-month statutory maximum sentence it could have 

imposed. The district court’s justifications were sufficiently compelling to support 

the extent of the upward variance. There was no abuse of discretion. 

AFFIRMED.6

 6 This appeal was originally scheduled for oral argument but was removed from the oral 

argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).

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