[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-12407

Non-Argument Calendar

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D.C. Docket No. 2:17-cr-00287-LSC-SGC-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

 versus

DEQUARRIEN JEVANTE LEE, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(April 18, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Dequarrien Lee appeals his 96-month sentence for unlawfully taking or 

carrying away firearms from the premises of a firearms dealer, 18 U.S.C. § 922(u) 

(Count One), and possessing stolen firearms, 18 U.S.C. § 922(j) (Count Two). Lee 

argues that his 96-month total sentence was substantively and procedurally 

unreasonable because it was greater than necessary to serve as effective 

punishment, the district court did not provide adequate justification to support the 

degree of upward variance, it failed to consider the § 3553(a) factors, and it failed 

to avoid unwarranted sentencing disparities between Lee and his codefendant, 

Devontae Perkins. 

In analyzing whether a sentence is reasonable, we first determine whether 

the district court committed any significant procedural error, and then, if the 

sentencing decision was procedurally sound, we determine whether the sentence 

was substantively unreasonable. Gall v. United States, 552 U.S. 38, 51 (2007). 

When reviewing for procedural reasonableness, we ordinarily consider legal issues 

de novo, review factual findings for clear error, and apply the guidelines to the 

facts with due deference, which is akin to clear error review. United States v 

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). However, failure to preserve an 

objection for procedural reasonableness at sentencing means that we may only 

review for plain error affecting substantial rights. United States v. Vandergrift, 754 

F.3d 1303, 1307 (11th Cir. 2014). The objection must apprise the trial court and 

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the opposing party of the specific grounds on which appellate relief will be sought. 

United States v. Carpenter, 803 F.3d 1224, 1237–38 (11th Cir. 2015). “A 

sweeping, general objection is insufficient to preserve specific sentencing issues 

for review.” Id. at 1238. 

Under plain error review, we may, at our discretion, correct an error where 

(1) an error occurred, (2) the error was plain, and (3) the error affects substantial 

rights. United States v. Olano, 507 U.S. 725, 732-36 (1993). When these factors 

are met, we may exercise discretion and correct the error if it “seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Id. at 736. To 

assess procedural reasonableness, we determine whether the district court 

committed any significant procedural error by, among other things, failing to 

consider the § 3553(a) factors. United States v. Cubero, 754 F.3d 888, 892 (11th 

Cir. 2014). We have held that a district court is not required to state on the record 

that it has explicitly considered or discussed each § 3553(a) factor; rather, the 

district court’s acknowledgment that it considered the § 3553(a) factors and the 

defendant’s arguments is sufficient. United States v. Docampo, 573 F.3d 1091, 

1100 (11th Cir. 2009). Even when the district court failed to “explicitly articulate 

that it had considered the § 3553(a) factors,” but it did “consider a number of the 

sentencing factors,” we have upheld a sentence. United States v. Dorman, 488 

F.3d 936, 944 (11th Cir. 2008). A sentencing judge “should set forth enough to 

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satisfy the appellate court that he has considered the parties’ arguments and has a 

reasoned basis for exercising his own legal decisionmaking authority,” Rita v. 

United States, 551 U.S. 338, 356 (2007), and “must adequately explain the chosen 

sentence to allow for meaningful appellate review and to promote the perception of 

fair sentencing.” Gall, 552 U.S. at 50. 

We review the substantive reasonableness of a sentence for abuse of 

discretion. United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016). 

“The party challenging a sentence has the burden of showing that the sentence is 

unreasonable in light of the entire record, the § 3553(a) factors, and the substantial 

deference afforded sentencing courts.” United States v. Rosales-Bruno, 789 F.3d 

1249, 1256 (11th Cir. 2015). 

The district court must impose a sentence that is “sufficient, but not greater 

than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), and 

shall consider the need to: reflect the seriousness of the offense, promote respect 

for the law, and provide just punishment for the offense; deter criminal conduct; 

protect the public from the defendant’s future criminal conduct; and provide the 

defendant with needed education or vocational training, medical care, or other 

correctional treatment in the most effective manner. 18 U.S.C. § 3553(a)(2). The 

court must also consider the nature and circumstances of the offense and the 

history and characteristics of the defendant. Id. at (a)(1). 

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The court must also consider “the need to avoid unwarranted sentence 

disparities between defendants with similar records who have been found guilty of 

similar conduct.” § 3553(a)(6). However, we “will not find a sentence disparity 

among codefendants to be unwarranted when they are not similarly situated,”

United States v. Holt, 777 F.3d 1234, 1270 (11th Cir. 2015), because “[a] wellfounded claim of disparity . . . assumes that apples are being compared to apples.” 

Docampo, 573 F.3d at 1101. We have held that defendants who have “been 

convicted of less serious offenses, lacked extensive criminal histories, or [] pleaded 

guilty,” are not similarly situated, and that the district court unreasonably erred in 

failing to distinguish those defendants. See United States v. Jayyousi, 657 F.3d 

1085, 1118 (11th Cir. 2011). 

We will not second guess the weight that the district court gave to a 

§ 3553(a) factor as long as the sentence is reasonable in light of all the 

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

district court is permitted to attach great weight to one § 3553(a) factor over others. 

United States v. Overstreet, 713 F.3d 627, 638 (2013). A district court can abuse 

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). A district 

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court commits a “clear error of judgment” when it unreasonably considers the 

proper factors. Id. We have affirmed a court’s upward variance based on the 

court’s finding that the defendant’s “criminal history category of I understated the 

seriousness of his criminal history,” United States v. Moran, 778 F.3d 942, 983 

(11th Cir. 2015), including in an instance when the criminal history at issue was 

not part of a conviction, but rather, was “germane to several § 3553(a) factors, 

including the history and characteristics of the defendant,” Overstreet, 713 F.3d 

at 637-38. 

We will only vacate a sentence 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 lies outside the range of 

reasonable sentences dictated by the facts of the case.” Id. at 1190 (quoting Pugh, 

515 F.3d at 1191). “Although there is no proportionality principle in sentencing, a 

major variance does require a more significant justification than a minor one—the 

requirement is that the justification be ‘sufficiently compelling to support the 

degree of the variance.’” Id. at 1196 (quoting Gall, 552 U.S. at 50). The 

sentencing court may base its finding of fact on facts admitted by a defendant’s 

plea of guilty, undisputed statements in the PSI, or evidence presented either at 

trial or at the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356 

(11th Cir. 1989). 

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Here, Lee has not satisfied his burden to prove that his sentence was 

procedurally unreasonable because the court properly considered the § 3553(a) 

factors in its determination, even if the court failed to explicitly name the factors. 

This Court has held that the sentencing court need not “explicitly articulate that it 

had considered the § 3553(a) factors,” and the district court here stated its reasons 

for its upward variance that satisfy several § 3553(s) factors. Dorman, 488 F.3d at 

944. The court stated that “the guidelines just absolutely under calculate his 

criminal conduct,” which reflects the need to provide just punishment for the 

offense. The court then noted that Lee “has been basically a criminal that’s just 

been on the loose doing whatever he wants to do with whatever firearms he can get 

his hands on. He is going to kill somebody,” which speaks to the need to protect 

the public from Lee’s possible future criminal conduct. Further, the court also 

stated that the 96-month sentence was “appropriate when [it] consider[ed] the 

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

defendant,” which is explicit language from § 3553(a)(1). Finally, the court 

warned Lee that he will no longer be “permitted to run loose, commit crimes, and 

have firearms,” because the consequences of doing so will be more severe with this 

conviction in his criminal history, which speaks of promoting respect for the law 

and creating deterrence for future criminal conduct. Furthermore, these factors are 

all mentioned in the court’s statement of reasons it filed after the sentencing 

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hearing. These are all § 3553(a) factors, and as such, Lee’s argument that the 

court’s sentence was procedurally unreasonable fails on account of the record.

Furthermore, Lee’s argument that the court failed to consider certain factors, 

such as the kinds of sentences available, is without merit because a district court is 

not required to state on the record that it has explicitly considered or discussed 

each § 3553(a) factor. Docampo, 573 F.3d at 1100. The court here has “set forth 

enough to” demonstrate that it “considered the parties’ arguments and has a 

reasoned basis for exercising his own legal decisionmaking authority,” and has 

“adequately explain[ed] the chosen sentence to allow for meaningful appellate 

review and to promote the perception of fair sentencing.” Rita, 551 U.S. at 356; 

Gall, 552 U.S. at 50. Thus, the district court did not commit error by failing to 

explicitly reference the § 3553(a) factors. 

Moreover, even if this Court were to find any error, because Lee failed to 

preserve his objection for procedural reasonableness before the district court, the 

standard of review here is plain error. Vandergrift, 754 F.3d at 1307. His objection 

of “we just generally object to the court going outside the guidelines because this 

was a guideline case, and we object to that” does not apprise the trial court and the 

opposing party of the specific grounds on which appellate relief will be sought. 

Carpenter, 803 F.3d at 1237-38. Instead, it is a “sweeping, general objection” that 

is “insufficient to preserve specific sentencing issues for review.” Id. at 1238.

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Thus, Lee was required to prove (1) an error occurred, (2) the error was plain, and 

(3) the error affects substantial rights. Olano, 507 U.S. at 732-36. As described 

above, the court did not err, and even if this Court were to conclude that it did, that 

error did not rise to the level of “seriously affect[ing] the fairness, integrity or 

public reputation of judicial proceedings.” Id. at 736.

Here, Lee has not met his burden of proving that his sentence was 

substantively unreasonable because the district court considered the relevant § 

3553(a) factors, it did not clearly err in considering or balancing those factors, and 

it gave justification for its upward variance. Irey, 612 F.3d at 1189. Furthermore, 

Lee failed to establish that he and Perkins were similarly situated such that their 

sentence disparity was unwarranted. Holt, 777 F.3d at 1270. As stated above, the 

district court considered the § 3553(a) factors of needing to provide just 

punishment for the offense, needing to protect the public from Lee’s possible 

future criminal conduct, the nature and circumstances of the offense and Lee’s 

history and characteristics, and promoting respect for the law and creating 

deterrence for future criminal conduct. The court gave great weight to his pending 

offenses and concluded that an upwardly varied sentence was appropriate given 

Lee’s “history and characteristics.” Lee argues that this focus on his pending cases 

was unreasonable because a sentence near the statutory maximum “should be 

reserved for the most culpable and dangerous persons.” However, a court is 

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permitted to give one § 3553(a) factor greater weight than others, Overstreet, 713 

F.3d at 638, and this Court does not second guess the weight that the district court 

gave to a factor if the sentence is reasonable in light of all the circumstances, Pugh, 

515 F.3d at 1191. Lee’s pending crimes were all centered around his possession of

firearms, most of which were stolen, which related directly to his instant offense 

and are “germane to several § 3553(a) factors, including the history and 

characteristics of the defendant.” Overstreet, 713 F.3d at 637-38. Furthermore, 

the court ensured that its sentence would run concurrently with his pending state 

court sentences. These considerations do not amount to a clear error in judgment, 

as it was reasonable to consider these factors. Irey, 612 F.3d at 1189.

Finally, the court’s underlying reliance on the finding that the guidelines 

“absolutely under calculate[d]” Lee’s offenses is reasonable under this Court’s 

precedent. See Moran, 778 F.3d at 983; Overstreet, 713 F.3d at 637-38. In light of 

the circumstances of his instant offense, his pending offenses related to firearms, 

and the court’s desire for the sentence to run concurrently, the sentence appears 

reasonable and this Court need not second guess the district court’s added weight 

on Lee’s history and characteristics. Pugh, 515 F.3d at 1191.

Next, the district court properly explained its sentence with the requisite 

“significant justification” for such a major variation. Irey, 612 F.3d at 1196. First, 

the court admitted “the sentence is going to be significant,” but noted that the 

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“guidelines just absolutely under calculate [Lee’s] criminal conduct.” The court 

gave Lee and the government the opportunity to stipulate to Lee’s conduct in his 

pending charges and justified its upward variance on the conduct described. The 

court directly cited to each of the pending cases in explaining its decision and 

noted that the cases demonstrated that Lee had been “on the loose doing whatever 

he wants to do with whatever firearms he can get his hands on.” The guideline 

calculation could only reflect Lee’s criminal history based on convicted crimes, 

and thus, his conduct in the pending cases could be not reflected in the 

recommended range. As such, in order to account for the “nature and 

circumstances of the offense” (the theft and possession of firearms) and Lee’s 

“history and characteristics” (pending cases for similar offenses), the court 

reasonably decided to adjust Lee’s sentence upward. Thus, the court has

demonstrated a “more significant justification” to “support the degree of the 

variance.” Irey, 612 F.3d at 1196. It did so by relying on evidence of conduct in 

his pending cases presented at the hearing. Wilson, 884 F.2d at 1356.

Lee has also failed to prove that he and Perkins were similarly situated such 

that their sentence disparity was unwarranted. Although Lee is correct is arguing 

that he and Perkins “engaged in similar conduct,” and even some of the “same 

conduct” in the past, the record shows that Perkins was not indicted on the same 

charges as Lee. This Court will not find a disparity in sentences among 

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codefendants to be unwarranted if they are not similarly situated. Holt, 777 F.3d at 

1270. One indicator of codefendants not being similarly situated is if one had 

“been convicted of a less serious offense.” Jayyousi, 657 F.3d at 1118. Here, the 

record shows that Perkins was only indicted on possessing a stolen firearm the

Benelli 12-gauge shot gun that Lee pled guilty to taking from Birmingham Pistol 

Parlor. Perkins told the ATF agents that he had not been at the Birmingham Pistol 

Parlor, he met with Lee after the incident, and Lee would not tell Perkins the origin 

of the weapons, and Lee put Perkins in charge of the Benelli shotgun. This 

conduct and Perkins’s indictment charge in this instance can reasonably constitute

a “less serious offense” than Lee’s. Jayyousi, 657 F.3d at 1118. Thus, Lee has 

failed to establish that he and Perkins are similarly situated and, as such, his 

argument that his sentence was substantively unreasonable for this regard is 

without merit.

Finally, Lee’s final argument on appeal—that the court should have 

recalculated his criminal history score or have considered what it might have been 

when the pending cases became convictions—is without merit. Lee supports his 

argument with this Court’s ruling in United States v. Johnson, 934 F.2d 1237, 1239 

(11th Cir. 1991). However, that case involved a district court’s departure under a 

provision of the guidelines and not, as in the case here, on a district court’s 

variance pursuant to the § 3553(a) factors. Johnson, 934 F.2d at 1239 (holding that 

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the court, “in departing upward, must look to the next highest criminal history

category and determine, taking into account the factors allowed by section 4A1 .3, 

whether that category more accurately reflects the defendant’s criminal history.”). 

Thus, Lee’s argument is without merit here.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.

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