United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10431

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Andrew Berger, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:20-CR-479-2 

______________________________

Before Smith, Southwick, and Douglas, Circuit Judges. 

Per Curiam:*

Andrew Berger pled guilty to conspiracy to acquire firearms 

fraudulently. The district court sentenced Berger to the statutory maximum 

of 60 months. On appeal, Berger argues his sentence is substantively 

unreasonable. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 15, 2023

Lyle W. Cayce

Clerk

Case: 22-10431 Document: 00516677742 Page: 1 Date Filed: 03/15/2023
No. 22-10431

2 

During sentencing, the district court must “impose a sentence 

sufficient, but not greater than necessary, to accomplish the goals of 

sentencing, including 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.” Kimbrough v. United States, 552 U.S. 85, 

101 (2007) (quotations marks omitted) (citing 18 U.S.C. § 3553(a)). The 

district court must begin its analysis by reviewing the advisory United States 

Sentencing Guidelines. See Gall v. United States, 552 U.S. 38, 46 (2007). 

Berger contests the substantive reasonableness of his sentence. This 

court reviews “an appellant’s claim that [a] sentence is substantively 

unreasonable for abuse of discretion. This review is highly deferential, 

because the sentencing court is in a better position to find facts and judge 

their import under the § 3553(a) factors with respect to a particular 

defendant.” United States v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017) 

(quotation marks and citations omitted). The court may, in its discretion, 

vary above or below the Guidelines range if it stays within the statutory 

sentencing range and fully considers the Section 3553(a) factors. See United 

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). “A non-Guideline 

sentence unreasonably fails to reflect the statutory sentencing factors where 

it (1) does not account for a factor that should have received significant 

weight, (2) gives significant weight to an irrelevant or improper factor, or (3) 

represents a clear error of judgment in balancing the sentencing factors.” Id.

at 708.

First, Berger argues that the district court did not adequately account 

for his age, upbringing, lack of criminal history, and mental health. The 

district court did, however, consider all of these things, in part based on 

Berger’s own testimony and admissions. Specifically, the court weighed his 

mental health and youth against the significant threat to the public his 

Case: 22-10431 Document: 00516677742 Page: 2 Date Filed: 03/15/2023
No. 22-10431

3

repeated conduct posed and the need to deter others from engaging in similar 

conduct. Thus, we defer to the district court’s findings and weighing of the 

factors. See id.

Second, Berger argues that there is an unreasonably and inexplicably 

broad disparity between his sentence and his co-conspirators’ sentences.

“However, this disparity factor requires the district court to avoid only 

unwarranted disparities between similarly situated defendants nationwide, 

and it does not require the district court to avoid sentencing disparities 

between co-defendants who might not be similarly situated.” United States 

v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010). In explaining its 

sentence, the district court pointed to: Berger’s involvement in two 

shootings; the presence of a firearm he sold at the site of another shooting;

Berger’s role as the organizer and leader of the conspiracy; and Berger’s

repeated illegal purchases of firearms. These factors do not apply to his codefendants. Thus, Berger has not shown that his greater sentence created an 

unwarranted disparity. See United States v. Ives, 984 F.2d 649, 650 (5th Cir. 

1993).

AFFIRMED.

Case: 22-10431 Document: 00516677742 Page: 3 Date Filed: 03/15/2023