[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13769

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

DAMON HAYES,

a.k.a. D-5, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:22-cr-00040-MTT-CHW-3

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2 Opinion of the Court 23-13769

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Before WILSON, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Damon Hayes was sentenced to 275-months’ imprisonment 

after he led a gang-operated drug trafficking organization. Hayes 

now appeals that sentence, arguing that it is both procedurally and 

substantively unreasonable. Because we find no error in the district 

court’s sentence, we affirm. 

I.

Damon Hayes was one of twelve defendants indicted for 

various drug trafficking crimes. In exchange for dismissing the 

other counts against him, Hayes pleaded guilty to conspiring to 

distribute controlled substances. This is not Hayes’s first offense; 

he was previously convicted for aggravated assault, possession and 

sale of cocaine, battery, and obstruction of an officer. Arson

charges are also pending. 

The specifics of Hayes’s role in the drug trafficking scheme 

are detailed in the presentence investigation report, to which he did 

not object. Hayes, a member of a gang known as the Inglewood 

Family Bloods, organized and led a drug trafficking organization 

consisting primarily of his fellow gang members. Hayes would buy 

crack cocaine from a co-conspirator, store the drugs in a fellow 

gang member’s home, and then supply those drugs to other 

members of the organization who in turn would sell them to the 

community. Officers obtained warrants to search the residence of 

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Hayes’s supplier and the residence where Hayes stored these drugs. 

Searches of these homes revealed large amounts cocaine, 

methamphetamine, and fentanyl. 

The report calculated a Sentencing Guidelines range of 210-

to 262-months’ imprisonment. It noted, however, that an upward 

variance may be warranted given Hayes’s role in the drug 

trafficking organization and his criminal history. The report also 

noted that an upcoming amendment to the Guidelines may 

warrant a lower criminal history category and thus a lower 

Guidelines range. 

The district court sentenced Hayes to 275-months’ 

imprisonment. While it calculated a lower Guidelines range given 

the upcoming amendment, it also imposed an upward variance

because of Hayes’s role in the offense and his criminal history. 

Hayes appeals his sentence.

II.

This Court reviews de novo questions of law involving the 

Guidelines. United States v. Hall, 965 F.3d 1281, 1293 (11th Cir. 

2020). A district court’s factual findings at sentencing are reviewed 

for clear error. Id. And the substantive reasonableness of that 

sentence is reviewed for abuse of discretion. Id. 

III.

Hayes raises three issues on appeal. First, he argues that the 

district court imposed an upward departure and thus failed to 

provide proper notice under Rule 32(h). Second, he says that the 

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district court erred in finding that gang members and fentanyl were 

involved the drug trafficking scheme. And third, he argues that the 

sentence imposed is substantively unreasonable. We address each 

in turn. 

A.

Hayes’s first argument fails because the district court 

imposed a variance, not a departure.1 “Although they may lead to 

the same result,” a variance and departure are distinct from one 

another. Id. at 1295. A variance is a sentence imposed outside the 

Guidelines range based on the factors provided in 18 U.S.C. 

§ 3553(a), and a departure “is a term of art under the Guidelines 

and refers only to non-Guidelines sentences imposed under the 

framework set out in the Guidelines.” Id. (quotation omitted). It 

is because of this key difference that a “court must give the parties 

advance notice if it is considering departing” from the Guidelines 

range, “but it need not give advance notice if it is considering 

varying from that range.” Id. at 1295–96 (emphases omitted); see 

also Fed. R. Crim. P. 32(h).

Whether a district court varied or departed depends on its

reasoning. Hall, 965 F.3d at 1296. If the court cites a specific 

1 The government asks that we apply plain error rather than de novo review 

to Hayes’s Rule 32(h) argument because he failed to preserve it below. At 

sentencing Hayes objected to the district court’s upward variance, but now 

argues that this was actually an upward departure. We need not address 

whether he preserved this argument, however, because it fails under either 

review. 

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Guidelines departure provision, that is a departure, so Rule 32(h)’s 

notice requirement applies. Id. But if its rationale instead is based 

on the § 3553(a) factors, along with a determination that the 

Guidelines range is insufficient, the sentence contains a variance 

and advance notice is not required. Id. 

Here, the district court imposed an upward variance rather 

than a departure. Its reasoning is based entirely on the § 3553(a)

factors and its conclusion that the applicable Guidelines range is 

inadequate. That means Hayes was not entitled to any advance 

notice. 

B.

The district court also did not err in its findings that gangs

and fentanyl were involved in Hayes’s drug trafficking crime. The 

presentence investigation reportstates that Hayes’s drug trafficking 

organization “was largely comprised of ” his “fellow 92 Inglewood 

Family Blood Gang members.” The report also details how large 

amounts of fentanyl were found at the residence of Hayes’s 

supplier and at the residence where Hayes kept his drug supply. 

The district court did not clearly err, then, in concluding that gang 

members and fentanyl were involved in Hayes’s drug crimes. 

C.

Finally, Hayes’s sentence is not substantively unreasonable. 

We will not consider a sentence substantively unreasonable unless 

“we are left with the definite and firm conviction that the district 

court committed a clear error of judgment in weighing the 18 

U.S.C. § 3553(a) factors” to arrive at a sentence outside the 

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Guidelines range. United States v. Riley, 995 F.3d 1272, 1278 (11th 

Cir. 2021) (alteration adopted) (quotation omitted). These factors 

include “the nature and circumstances of the offense and the 

history and characteristics of the defendant.” 18 U.S.C. 

§ 3553(a)(1). Courts may also consider the need for the sentence 

“‘to reflect the seriousness of the offense, to promote respect for 

the law,’ ‘to provide just punishment for the offense,’ ‘to afford 

adequate deterrence to criminal conduct,’ and ‘to protect the 

public from further crimes of the defendant.’” Riley, 995 F.3d at 

1278–79 (quoting 18 U.S.C. § 3553(a)(2)). District courts have 

discretion in weighing these factors, and that discretion is 

“particularly pronounced when it comes to weighing criminal 

history.” Id. at 1279. 

The district court reviewed Hayes’s criminal history and the 

nature of his offense and concluded that an upward variance was 

appropriate. The court specifically noted that the “fairly unique 

aspects” of Hayes’s crime—creating a “gang-operated drug 

trafficking organization that resorted to acts of violence” and sold 

fentanyl—produced “considerable harm” to the public. It also 

considered Hayes’s criminal history “understated” by the 

Guidelines range. Although Hayes argues that the district court 

placed too much weight on his criminal history, courts have 

discretion in weighing the § 3553(a) factors. Id. Hayes’s sentence 

was not substantively unreasonable. 

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* * *

Because Hayes’s sentence was neither procedurally nor 

substantively unreasonable, we AFFIRM. 

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