[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-13606

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-00019-TWT-CMS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

TAVIIEN OWENS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(May 8, 2018)

Before ROSENBAUM, JULIE CARNES, and HULL, Circuit Judges.

PER CURIAM: 

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Defendant-Appellant Taviien Owens challenges as substantively 

unreasonable his 27-month sentence imposed for escaping from federal custody.

After careful review, we find no error and affirm. 

As relevant here, Owens was convicted of using a communication device in 

the commission of a drug-trafficking offense and was sentenced to 24 months in 

custody. After Owens spent the majority of his sentence in prison, the Bureau of 

Prisons transferred Owens to a halfway house where he was to complete his 

sentence. One evening, before he completed his sentence, Owens checked out of 

the halfway house to run an errand. He never returned. Atlanta police found him 

three weeks later while responding to a report of suspicious people in a vacant 

residence.

Owens was charged and pled guilty to knowingly escaping from federal 

custody. The district court determined Owens’s base offense level was 13, 

pursuant to Sentencing Guideline § 2P1.1. U.S.S.G. § 2P1.1(a)(1). It then reduced 

it by six levels: four because Owens escaped from non-secure custody, see id. § 

2P1.1(b)(3), and an additional two because he accepted responsibility, see id. § 

3E1.1(a). Thus, with an offense level of seven and a criminal history category of 

VI—Owens had twenty-five criminal history points from more than ten prior 

convictions—the district court calculated his advisory Guideline sentence range as 

15 to 21 months. 

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However, the court granted the government’s request for an upward variance 

and sentenced Owens to 27 months in custody. It concluded that the Guidelines 

range was insufficient for two reasons. First, after Owens escaped, he sent text 

messages asking if a friend had crack or heroin that he could sell. Noting this, the 

district court found that Owens’s prior 24-month sentence for using a 

communication device in the commission of a drug-trafficking offense was 

insufficient to deter him from engaging in the same activity after he escaped from 

custody; therefore, the court determined that an upward variance was needed to 

“reflect the seriousness of the [present] offense and afford adequate deterrence[,]” 

pursuant to 18 U.S.C. Section 3553(a). 

The district court also found the Guidelines range insufficient because 

Owens had 25 criminal-history points. An offender is in criminal-history category 

VI—the highest criminal-history category—with thirteen or more criminal history 

points; Owens had almost double that number. Thus, after considering “the history 

and characteristics of the Defendant,” again pursuant to 18 U.S.C. Section 3553(a), 

the district court determined that an upward variance was warranted. 

Owens now appeals the sentence, arguing that it is substantively 

unreasonable1 because it is “greater than necessary to satisfy the sentencing 

 1 Although Owens does not expressly challenge the procedural reasonableness of his 

sentence, he argues that the district court should not have considered the text messages he sent to 

a friend asking if the friend had drugs he could sell because such evidence “was insufficient to 

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considerations set forth in 18 U.S.C. § 3553(a).” We review a challenge to the 

substantive reasonableness of a sentence for abuse of discretion, and vacate “if, but 

only if, 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.” United States v. Irey, 612 F.3d 1160, 1165, 1190 (11th Cir. 2010) 

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). 

We are not left with such a conviction. Two of the factors a district court 

must consider under 18 U.S.C. § 3553(a) when determining a sentence include “the 

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

defendant[,]” and “the need for the sentence imposed . . . to reflect the seriousness 

of the offense, to promote respect for the law, . . . to provide just punishment for 

the offense[,] . . . [and] to afford adequate deterrence to criminal conduct.” The 

district court below cited these considerations when it concluded that Owens’s 

immediate relapse into criminal behavior and his extensive criminal history 

warranted an upward variance. We cannot say that this amounted to a clear error 

 

prove, by a preponderance of the evidence, that Mr. Owens was selling drugs while on escape 

status.” This implies a procedural-error argument: that the district court “select[ed] a sentence 

based on clearly erroneous facts.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). 

While we review this argument for plain error because it was not preserved below, United States 

v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014), it is unavailing under any standard for the 

simple reason that the district court did not base the sentence on the conclusion that Owens was 

selling drugs. Rather, it based the sentence, in part, on the fact that Owens “at least attempt[ed]” 

to sell drugs. That conclusion is supported by the text messages.

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of judgment. See, e.g., Shaw, 560 F.3d at 1240 (upward variance to statutory 

maximum reasonable because defendant had “one-and-a-half times the number of 

points required to come within criminal history category VI,” had committed the

same crime before, and “shorter sentences had done nothing to get [defendant] off 

his determined course of crime and had not been enough to protect the public from 

his lawlessness.”). For these reasons, we affirm the district court’s sentence.

AFFIRMED.

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