[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 14268
Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus GARY BAPTISTE,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:10

- cr

- 60077

- FAM

- 1

____________________ USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 1 of 82 Opinion of the Court 21

- 14268

Before JILL PRYOR, LUCK, and MARCUS, Circuit Judges.
PER CURIAM: After the district court granted Gary Baptiste’s authorized successive 28 U.S.C. § 2255 motion, vacated two of his counts of conviction, and resentenced him, Baptiste appeals the substantive reasonableness of his total sentence of 300 m onths’ imprisonment for conspiracy to commit Hobbs Act robbery and possession of a firearm by a convicted felon. On appeal, Baptiste argues that thedistrict court abused its discretion in weighing the nature and circumstances of the offense in light of t he mitigating factors of his rough upbringing, his post

- sentence rehabilitation, the fact that no one was actually harmed, and the differences in sentences between Baptiste and his codefendants. After careful review, we affirm.
We review the sentence a di strict court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh , 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States , 551 U.S. 338, 351 (2007)). In reviewing the “‘substa ntive reasonableness of [a] sentence ” we consider the “‘totality of the circumstances.’” Id

. at 1190 (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). The district court must impose a sentence “sufficient, but not greater than necessary
, to comply with the purposes” listed in 18 U.S.C. § 3553(a). 1 The

1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 2 of 821

- 14268 Opinion of the Court 3 court must consider all of the § 3553(a) factors, but it may give greater weight to some factors over others

-- a decision which is within its sound discretion. United States v. Rosales

- Bruno , 789 F.3d 1249, 1254 (11th Cir. 2015). Indeed, the district court maintains discretion to give heavier weight to any of the § 3553(a) factors or combination of factors than to the guideline range. Id . at 1259. We ha ve “underscored” that we must give “due de ference” to the district court to consider and weigh the proper sentencing factors. United States v. Shabazz , 887 F.3d 1204, 1224 (11th Cir. 2018) (quotation omitted). However, a sentence may be substantively unreasonable when a court “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factors, or (3) commits a clear error of j udgment in considering the proper factors.” United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010) ( en banc ) (quotation omitted). Asentence that suffers from one of these symptoms is not per se unreasonable; rather, we must examine the totality of the circumstances to determine the sentence’s reasonableness. Pugh , 515 F.3d

the sentence imposed to reflect the s eriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with e ducational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwa rra nted sentencing disparities; and (1 0) the need to provide restitution to victims. 18 U.S.C. § 3553(a). USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 3 of 84 Opinion of the Court 21

- 14268at 1192. We will vacate a sentence only if we are left with the “definite and firm” conviction that the district court committed a clear error of judgment in weighing the § 3553 (a) factors by arriving at a sentence that is outside the range of reasonable sentences dictated by the facts of the case. Id

. at 1191. The party challenging the sentence bears the burden of establishing that it is unreasonable based on the facts of the case and the 18 U.S.C. § 3553(a) factors. United States v. Tome , 611 F.3d 1371, 1378 (11th Cir. 2010).
In consider ing the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6) , a court first consider s whether the defendant is similar ly situated to the defendants to whom he compares himself. United States v. Azmat , 805 F.3d 1018, 1048 (11th Cir. 2015). Accordingly, the district court should not draw comparisons to cases involving defendants who were convicted of less serious offenses , pleaded guilty, or lacked extensive criminal histories, if those things are not true of the defendant. United States v. Jayyousi , 657 F.3d 1085, 1118 (11th Cir. 2011). We must give “due deference” to t he district court ’s decision that the § 3553(a) fact ors justify a variance. Gall , 552 U.S

. at 51. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. Thus, there is a range of reasonable sentences from which the district court may choose. United States v. Stanley , 739 F.3d 633, 656 (11th Cir. 2014). We do not presume a sentence outside the guideline range is unreasonable. Irey , 612 F.3d at 1187. But the district court’s USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 4 of 821

- 14268 Opinion of the Court 5justification for a variance must be “sufficiently compelling to support the degree of the variance.” Id. at 1186

– 87 (quotation omitted). A sentence that is well below the statutory maximum for the crime is an indicator of a reasonab le sentence. United States v. Dougherty , 754 F.3d 1353, 1364 (11th Cir. 2014). District courts need not explicitly address “each of the § 3553(a) factors or all of the mitigating evidence,” so long as the record reflects the court considered the factors a nd the parties’ arguments. United States v. Taylor , 997 F.3d 1348, 1354 (11th Cir. 2021). Even if a particular factor is already accounted for by the Guidelines, district courts maintain discretion to use this factor to justify an upward variance. See U nited States v. Goldman , 953 F.3d 1213, 1222 (11th Cir. 2020). Here, Baptiste has not shown that the district court imposed a substantively unreasonable sentence. As the record reflects, Baptiste was convicted in 2011 of conspiracy to commit Hobbs Act ro bbery, in violation of 18 U.S.C. § 1951(a) (Count 1); conspiracy to use and carry a firearm and ammunition during and in relation to a crime of violence and a drug

- trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (o) (Count 4); carrying a firea rm and ammunition during and in relation to a crime of violence and a drug

- trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count 5); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 6). The co nvictions arose out of a reverse

- sting operation by the Broward County Sheriff’s Office involving the robbery of a fictitious stash house of cocaine. At USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 5 of 86 Opinion of the Court 21

- 14268 sentencing, the district court calculated Baptiste’s guideline range to be 262 to 327 months’ imprison ment, plus a mandatory 60

- month consecutive term for Count 5 , and imposed a n upward

- varying sentence of 660 months’ imprisonment. In 2019, Baptiste filed an application with our Court for leave to file a successive § 2255 motion challenging the validity of his convictions in Counts 4 and 5

-- involving the use or carrying ofa firearm and ammunition during and in relation to a crime of violence and a drug

- trafficking crime

-- based on a new rule of constitutional law announced in United States v. Davis , 139 S. Ct. 2319 (2019) . After we granted the motion, the district court vacate d the convictions on Counts 4 and 5 , and Baptiste’s new guideline range

was 121 to 151 months ’ imprisonment

. At the resentencing hearing, the district court described the offense as a “very, very, very serious violent offense,” which could have res ulted in much greater consequences of killing someone. The court expressed a need to protect the public and its concern that Baptiste would recidivate, and considered the government’s argument s that Baptiste was the leader of the conspiracy, had recruited his six codefendants, had been arrested with four bulletproof vests, four firearms, and 126 rounds , had obstructed justice
, and had told an undercover agent that he’d “sleep better if I kill the two guards at the stash house

. ” As for mitigating factors, the district court considered the non

- violent nature of Baptiste’s prior grand theft conviction , the fact that reverse

- sting operations were rarely conducted anymore because they target ed poor, black USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 6 of 821

- 14268 Opinion of the Court 7 people , the lighter sentences his codefendants received, and his rehabilitation efforts in prison, which the government partially disputed. Initially inclined to impose a 360

- month sentence, the district court ultimately imposed a 300

- month sentence. In so doing, the court explained tha t it believed an upward variance was appropriate “for the same reasons that [it] mentioned before [at the original sentencing]
, ” which included its opinion that Baptiste’s offense “is about as serious, short of murder, as it can get” and that Baptiste had said he was willing to kill the stash house guards. On this record, we cannot say that the district court abuse dits discretion in determining that an upward variance was warranted in light of the nature and circumstances of the offense and the needs to promote respect for the law, provide adequate deterrence, and protect the public. 18 U.S.C. § 3553(a)(2)(B), (2)(C). Further
, even though the court did not need to comment on all of Baptiste’s mitigating factors, Taylor , 997 F.3d at 1354, it did hear his mitigating arguments and address the rehabilitative programs he completed, his rough upbringing, and that no one was harmed. Upon finding it “impressive” that multiple people in the prison believed Baptiste had done enough to rehabilitate himself
, the cou rt said it was sentenc ing him to five years on Count 6 instead of the ten years it could have imposed. The court then expressed skepticism of Baptiste’s mitigating argument that no one was actually harmed in the commission of his crime , noting the serious ness of the crime and the need to protect the public. In attaching greater weight to the aggravating factors than the mitigating one s , t he USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 7 of 88 Opinion of the Court 21

- 14268

court acted well within its discretion. Rosales

- Bruno , 789 F.3d at
1254. In addition, we recognize that the guidel ine range already accounted for the seriousness of the offense, his obstruction, and his leading role, but the district court was allowed, under our caselaw, to consider factors that the guideline range already encompassed in deciding to impose a variance

. Goldman , 953 F.3d at 1222. And al though the 300

- month sentence was above the guideline range, it was still below the aggregate statutory maximum of 360 months, an indicator of reasonableness. Dougherty , 754 F.3d
at 1364. Finally, w e are unpersuaded by Baptiste’s argument that his

senten ce was unreasonable because it created unwarranted sentencing disparities. As we’ve held, there can be no unwarranted sentencing disparities among codefendants who are not similarly situated , and the district court found his codefendants not to be similar ly situated

. See Azmat , 805 F.3d at 1048. Among other things, the district court noted that one codefendant had entered a plea, another had only been convicted of one c ount, and, unlike all his codefendants, Baptiste had not admitted to his actions, had been the leader and had obstructed justice. Jayyousi , 657 F.3d at 1118. Because Baptiste has not shown that his 300

- month sentence was substantively unreasonable, we affirm.
AFFIRMED. USCA11 Case: 21-14268 Document: 41-1 Date Filed: 03/09/2023 Page: 8 of 8