[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13962

Non-Argument Calendar

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D.C. Docket No. 1:16-cr-00015-MW-GRJ-2

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

versus

LARRY BURSTEIN, 

 Defendant – Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(January 24, 2019)

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Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM: 

Larry Burstein appeals his 48-month sentence, which was imposed after he 

pled guilty to one count of conspiring to distribute codeine in violation of 

21 U.S.C. § 841(a)(1) and § 846. Burstein argues that his sentence was 

substantively unreasonable. Because the district court did not abuse its discretion 

in weighing the § 3553(a) sentencing factors, we affirm. 

I. BACKGROUND

From 2007 through 2014, Burstein ran an internet pharmacy website that 

sold controlled substances, including codeine, to individuals without requiring 

them to submit a valid prescription. Between 2009 and 2014, Burstein sold more 

than 148,000 codeine pills containing more than 2,000,000 milligrams of codeine,

generating more than $7 million in sales.

Burstein was charged with various crimes based on his role in operating the 

website, including one count of conspiracy to distribute a controlled substance. 

Burstein pled guilty to the conspiracy count in exchange for the government 

dismissing the other charges against him.

Prior to the sentencing, the probation office prepared a presentence 

investigation report (“PSR”). Based on the quantity of codeine involved, the PSR

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calculated Burstein’s base offense level of 24. The PSR then applied a 2-level 

enhancement for distributing a controlled substance through mass-marketing by 

means of an interactive computer service and a 3-level reduction for acceptance of 

responsibility, yielding a total offense level of 23. The PSR found that this total 

offense level and Burstein’s criminal history category of I yielded a recommended 

range under the Sentencing Guidelines of 46 to 57 months’ imprisonment.

At sentencing, the district court adopted the PSR’s guidelines calculation. 

Burstein requested a below-guideline sentence of 18 to 24 months’ imprisonment, 

arguing that such a sentence was appropriate given his acceptance of 

responsibility, age, health condition, and indigence. He submitted to the court 

letters attesting to his good character and charitable works as well as medical 

records documenting his poor health.

Although the government did not request that the district court impose a 

specific sentence, it argued that a more severe sentence was needed to deter 

Burstein and others from committing similar crimes. The government pointed out 

that Burstein ran a significant drug enterprise. The government emphasized that 

codeine was an opiate and there was a strong need to deter the selling of opiates

through the internet. Regarding Burstein’s arguments about his good character, the 

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government did not dispute that Burstein gave some money to charity but pointed 

out he wasted a significant portion of the illegally obtained money.

In imposing a sentence, the district court explained that it considered both 

the mitigating and aggravating factors in the case. The mitigating factors identified 

by the district court included: Burstein’s advanced age, medical condition, and 

good works. Regarding aggravating factors, the district court explained that the 

“criminal enterprise was vast in scope” and resulted in the distribution of nearly

150,000 pills of a “highly addictive drug.” Doc. 160 at 35.1

 The district court 

noted that the distribution of opioids harmed individuals and communities. The 

court emphasized that this was not a “simple case” with a “limited amount of 

distribution for a limited period of time and a limited quantity.” Id. 

After considering the mitigating and aggravating factors, the district court 

imposed a 48-month sentence, which was within the guidelines range. The court 

explained that if it were not for the mitigating factors, the arguments of Burstein’s 

lawyers, and the letters Burstein had submitted, the court would have “seriously 

consider[ed] an above-guideline sentence.” Id. at 36. This is Burstein’s appeal.

 

1 Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.

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II. DISCUSSION

On appeal, Burstein challenges the substantive reasonableness of his 

sentence. We review the reasonableness of a sentence under a deferential abuse of 

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district 

court abuses its discretion when it (1) fails to afford consideration to relevant 

factors that were due significant weight, (2) gives significant weight to an improper 

or irrelevant factor, or (3) commits a clear error of judgment in considering the 

proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en 

banc) (internal quotation marks omitted). The party challenging the sentence bears 

the burden of showing it is unreasonable. United States v. Tome, 611 F.3d. 1371, 

1378 (11th Cir. 2010). 

When reviewing a sentence for substantive reasonableness, we examine the 

totality of the circumstances, including “whether the statutory factors in § 3553(a)

support the sentence in question.”2

 United States v. Gonzalez, 550 F.3d 1319, 

 2 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not 

greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These 

purposes include the need to: reflect the seriousness of the offense; promote respect for the law;

provide just punishment; deter criminal conduct; protect the public from the defendant’s future 

criminal conduct; and effectively provide the defendant with educational or vocational training, 

medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also 

consider the nature and circumstances of the offense, the history and characteristics of the 

defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy 

statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, 

and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

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1324 (11th Cir. 2008). “We will not second guess the weight (or lack thereof) that 

the judge accorded to a given factor under § 3553(a), as long as the sentence 

ultimately imposed is reasonable in light of all the circumstances presented.” 

United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (alterations adopted) 

(internal quotation marks omitted). We may vacate a sentence only if we firmly 

believe 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.” Irey, 612 F.3d at 1190 (internal 

quotation marks omitted). We may not set aside a sentence “merely because we 

would have decided that another one is more appropriate.” Id. at 1191. “Although 

we do not automatically presume a sentence within the guidelines range is 

reasonable, we ordinarily expect a sentence within the Guidelines range to be 

reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration 

adopted) (internal quotation marks omitted). 

Burstein argues that in weighing the § 3553(a) factors, the district court 

failed to give proper weight to mitigating factors, including his status as a firsttime offender,3 his advanced age, his health issues, and that he donated much of 

 3 We note that the record does not support Burstein’s claim that he was a “true” first time 

offender who had no “prior (substantial) arrests.” Appellant’s Br. at 30. It’s true that Burstein 

was assigned no criminal history points. But he previously pled guilty to possession of listed 

chemicals with intent to manufacture methamphetamine and served 21 months in a federal 

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the money he received to charity. He also contends that the district court should 

have imposed a sentence of probation or home detention. We begin by observing 

that Burstein’s sentence was far below the 240-month statutory maximum and 

within the guidelines range. Although we do not presume that a sentence within 

the guidelines range is reasonable, we ordinarily expect it to be reasonable. See 

Hunt, 526 F.3d at 746. After considering the facts of the case, we are not left with 

a definite and firm conviction that the district court committed a clear error of 

judgment when it imposed a 48-month sentence, as opposed to a lower sentence or 

a sentence involving home confinement or probation. Burstein’s sentence was 

within the range of reasonable sentences that could be imposed in this case in light 

of the significant scale of Burstein’s criminal scheme, which involved the 

distribution of an addictive opiate. 

III. CONCLUSION

For these reasons, we affirm Burstein’s sentence.

AFFIRMED.

 

prison. This conviction was not counted in his criminal history score because of its age. See 

U.S.S.G. § 4A1.2(e)(3).

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