[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-15164

Non-Argument Calendar

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D.C. Docket No. 2:17-cr-00107-SPC-MRM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

OLIVER ROCHER, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 19, 2019)

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

PER CURIAM: 

Oliver Rocher appeals his 190-month sentence for five federal drug 

trafficking and firearm offenses. He argues that his sentence is substantively 

unreasonable. We disagree, and affirm.

I.

Rocher entered a guilty plea to a five-count indictment charging him with 

distribution of a substance containing heroin; possession with intent to distribute a 

substance containing heroin, cocaine base, and cocaine; possession of a firearm by 

a convicted felon; and possession of a firearm in furtherance of a drug trafficking 

crime. At sentencing, the district court adopted the probation officer’s uncontested 

Sentencing Guidelines calculations, which provided a Guidelines range of 110–137 

months’ imprisonment on the first four charges, plus a mandatory minimum 

consecutive term of 60 months’ imprisonment on the drug-trafficking firearm 

offense.

Rocher requested a downward variance to a total sentence of 120 months’ 

imprisonment. He submitted a psychologist’s evaluation which stated that he was 

competent to stand trial but also opined that he suffered from bipolar disorder, 

posttraumatic stress disorder, and multiple substance abuse disorders. He also 

pointed out that because—though he claimed not to know it at the time—the heroin 

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he sold was mixed with some unknown amount of fentanyl, the Guidelines 

required that the entire drug weight for the substance seized from him be assigned 

to fentanyl for purposes of calculating his base offense level. This caused an 

unwarranted sentencing disparity, Rocher argued, because it gave him a much 

higher base offense level than other heroin sellers—the same as a defendant who 

had knowingly sold pure fentanyl. 

After hearing argument from the parties and Rocher’s statement in 

allocution, the district court discussed the sentencing factors in 18 U.S.C. § 3553 

and concluded that a downward variance was not appropriate. The court also 

concluded “based upon the seriousness of the offenses before the Court, the 

amount of drugs that were located, the type of drugs that were located, the fact that 

there was a firearm involved, and your history and characteristics, that a midpoint 

of the guideline sentence is appropriate.” The court sentenced Rocher to 130 

months’ imprisonment on counts 1, 2, and 4 and 120 months on Count 3, to run 

concurrently; 60 months’ imprisonment on Count 5, to run consecutively to all 

other counts; and three years’ supervised release.

II.

We review the reasonableness of a sentence under the abuse-of-discretion 

standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court abuses 

its discretion when it (1) fails to afford consideration to relevant factors that were 

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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) (citation 

omitted). We will vacate a sentence for substantive unreasonableness 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 lies outside the range of reasonable sentences dictated by the facts of the case.” 

Id. at 1190 (citation omitted). The party challenging the sentence bears the burden 

of showing that it is unreasonable in light of the record and the 18 U.S.C. § 3553(a) 

factors. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). 

Rocher has not met that burden here.

III.

On appeal, Rocher argues that his sentence was substantively unreasonable 

because, in light of his family history and substance abuse problems and the impact 

of the unknown concentration of fentanyl on his Guidelines range, a lower 

sentence of 120 months would have been sufficient to comply with the statutory 

purposes of sentencing. The district court adequately weighed those 

considerations, however, along with other factors under § 3553 such as Rocher’s 

(admittedly extensive) criminal history and the serious nature of his crimes, in 

determining that a sentence of 190 months was appropriate. Rocher’s argument 

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that the district court ignored his mitigation evidence and based its sentencing 

decision entirely on his criminal history is directly contradicted by the record. The 

court stated that it had considered Rocher’s argument and the materials that he had 

submitted, and it acknowledged his statements about the personal difficulties he 

was having at the time of the offenses. The court also considered Rocher’s need 

for mental health treatment, recommending that he take advantage of mental health 

programs available in prison and ordering that he participate in a substance abuse 

treatment program while on supervised release. 

We are also not persuaded by Rocher’s sentence-disparity argument. Under 

the Guidelines, if a defendant sells a mixture of controlled substances, “the weight 

of the entire mixture or substance is assigned to the controlled substance that 

results in the greater offense level”—in this case, fentanyl. U.S.S.G. § 2D1.1(c), 

App. Note (A) (2016). This provision does not so much create a sentencing 

disparity among heroin sellers as it lumps all fentanyl sellers into the same 

category regardless of how strong the concentration of fentanyl is in their products. 

The fact that the district court did not adopt Rocher’s disagreement with the policy 

reflected in this provision so that it could vary downward from his Guidelines 

range hardly makes the court’s sentence unreasonable. To the contrary, while no 

presumption of reasonableness attaches to a within-Guidelines sentence, we 

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ordinarily “expect a sentence within the Guidelines range to be reasonable.” 

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

We also note that the court’s sentences of 130 months’ imprisonment for the 

drug trafficking crimes and 60 months’ imprisonment for possessing a firearm in 

furtherance of a drug trafficking crime were well below the statutory maximum for 

those offenses. See 21 U.S.C. § 841 (b)(1)(C) (20 years); 18 U.S.C. § 924(c)(1)(a) 

(life). This fact is another indicator that Rocher’s sentences were reasonable. See 

United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).

IV.

Rocher has not shown that the district court considered any improper or 

irrelevant factor in arriving at his sentence, and the court’s midpoint Guidelines 

sentence was well within the “range of reasonable sentences from which the 

district court may choose.” United States v. Chavez, 584 F.3d 1354, 1365 (11th 

Cir. 2009) (citation omitted). We therefore affirm Rocher’s convictions and 

sentences.

AFFIRMED.

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