Filed: Jun. 29, 2020
Latest Update: Jun. 29, 2020
Summary: Case: 19-12381 Date Filed: 06/29/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-12381 Non-Argument Calendar _ D.C. Docket No. 3:18-cr-00105-BJD-JRK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LAWRENCE LEWIS, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (June 29, 2020) Before JORDAN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Case: 19-12381 Date Filed: 06/29/202
Summary: Case: 19-12381 Date Filed: 06/29/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-12381 Non-Argument Calendar _ D.C. Docket No. 3:18-cr-00105-BJD-JRK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LAWRENCE LEWIS, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (June 29, 2020) Before JORDAN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Case: 19-12381 Date Filed: 06/29/2020..
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Case: 19-12381 Date Filed: 06/29/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12381
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cr-00105-BJD-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 29, 2020)
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
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Lawrence Lewis appeals his 72-month sentence for conspiracy to distribute
fentanyl and fentanyl analogues. He argues that his sentence is substantively
unreasonable because the district court lacked sufficient justification to vary
upward from the applicable Sentencing Guidelines range. We disagree, and
therefore affirm.
I.
Beginning in at least June 2017 and continuing until his arrest in September
of that year, Lewis supplied drugs to his son and stepdaughter (codefendant Dawn
Lindsay), who lived with him. Lewis gave his children two to three $20 bags of
“heroin” per day because they were drug addicts and he wanted “to keep them
from getting sick.” He was aware that they sometimes resold the drugs that he
gave them.
In June 2017, a woman who was staying at Lewis’s house used some of his
stepdaughter’s drugs, overdosed, and died. Lewis called for an ambulance.
A month later, a man who had paid Lewis $40 to stay in his house for the
weekend used drugs that he got from Lewis, overdosed, and died. Lewis called for
an ambulance.
Less than two weeks later, Lewis was awakened by a noise that he described
as a “death rally” from a man who had used some of Lindsay’s drugs and
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overdosed. Lewis called for an ambulance and the man was taken to the hospital,
where he later died.
After the third fatal overdose at Lewis’s house in little more than a month,
police began investigating drug activity at the house. An undercover narcotics
detective purchased $60 “bags” (foil packets) of fentanyl or controlled-substance
fentanyl analogues from Lindsay on nine occasions in August and September
2017. After the ninth sale, law enforcement officers executed a search warrant at
Lewis’s house, where they found user amounts of heroin and marijuana; 41.2
grams of unspecified “liquid pharmaceutical with packaging”; crack pipes, a scale,
and a plastic bag, each with drug residue; other drug paraphernalia, including push
pipes, syringes, and foil packets like those given to the undercover detective; and a
pistol. The firearm, drugs, and the scale were found in Lewis’s bedroom, and the
money from the most recent drug sale to the undercover detective was found in
Lewis’s pocket. Lindsey told law enforcement officers that Lewis “r[an] the
house,” and that she got her “cut” from him in the form of free “heroin.”
Lewis and Lindsey were charged in a seven-count indictment, and Lewis
pleaded guilty to one count of conspiracy to distribute a substance containing
fentanyl and controlled-substance fentanyl analogues, in violation of 21 U.S.C.
§§ 841 and 846. The probation officer prepared a presentencing investigation
report (PSR) stating that Lewis and Lindsey were both responsible for the fentanyl
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and fentanyl analogues sold to the undercover detective and the heroin found in
Lewis’s house. Based on the weight of those drugs, and with an upward
adjustment for the presence of a firearm and a downward adjustment for Lewis’s
acceptance of responsibility, the PSR initially calculated Lewis’s Sentencing
Guidelines imprisonment range to be 18 to 24 months.
The government objected to this calculation, contending that Lewis should
also be held responsible for the drugs that he provided to his children during the
charged timeframe of the conspiracy (June 2017 through September 18, 2017).
The government also filed a motion for an upward variance from the Guidelines
range (which it contended should be 57 to 71 months, based on the total weight of
drugs attributable to Lewis), arguing that the Guidelines did not adequately
account for Lewis’s involvement in the three overdose deaths that had occurred in
his home, and that a 72-month sentence was appropriate.
The probation officer revised the PSR to account for the drugs that Lewis
distributed to his children between June 27, 2017 (the date of the first overdose
death) and September 18, 2017 (the date of Lewis’s arrest), using a conservative
estimate of 64.1 grams of fentanyl and 3.1 grams of fentanyl analogue to arrive at a
revised Guidelines range of 46 to 57 months. Lewis did not object to the PSR.
At sentencing, Lewis requested a Guidelines sentence, pointing out that his
criminal history was negligible; he suffered from multiple serious health
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conditions, including back and shoulder conditions that led to his own addiction to
fentanyl for pain control and impaired judgment as the result of a stroke several
years earlier; and he had supplied his children with drugs because he thought
(using his medically-impaired judgment) that it would be better to give them
controlled amounts than to let them buy drugs for themselves on the street. The
government renewed its request for an upward variance to 72 months.
The district court adopted the Guidelines calculations in the revised PSR.
After reviewing the PSR and hearing argument from the parties and a statement
from Lewis, the district court varied upward and imposed a sentence of 72 months
in prison followed by three years’ supervised release. This appeal followed.
II.
A district court must impose a sentence that is “sufficient, but not greater
than necessary,” to reflect the seriousness of the offense, promote respect for the
law, provide just punishment, deter criminal conduct, and protect the public. 18
U.S.C. § 3553(a). In selecting an appropriate sentence, the district court must
consider the nature and circumstances of the offense and the history and
characteristics of the defendant, the kinds of sentences available, the advisory
Guidelines range and pertinent policy statements of the Sentencing Commission,
the need to avoid unwarranted sentencing disparities, and any need for restitution
to victims.
Id.
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We review the procedural and substantive reasonableness of a sentence
under a deferential abuse of discretion standard. Gall v. United States,
552 U.S.
38, 51 (2007). The weight given to each § 3553(a) sentencing factor is a matter
committed to the discretion of the district court. United States v. Clay,
483 F.3d
739, 743 (11th Cir. 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) (citation omitted). A “district court must
adequately explain the chosen sentence to allow for meaningful appellate review
and to promote the perception of fair sentencing.” United States v. Livesay,
525
F.3d 1081, 1090 (11th Cir. 2008) (citation and quotation marks omitted). When a
sentencing court varies above the advisory Guidelines range, it must support that
decision with a justification that is “sufficiently compelling to support the degree
of the variance.”
Irey, 612 F.3d at 1186 (quoting
Gall, 552 U.S. at 50).
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
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showing that it is unreasonable in light of the record and the 18 U.S.C. § 3553(a)
sentencing factors. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th
Cir. 2015). Lewis has not met that burden here.
Lewis argues that the district court’s upward variance was unjustified and
arbitrary because the government’s request for an upward variance had already
been accounted for by increasing his Guidelines range based on a larger quantity of
controlled substances than had originally been attributed to him. Not so; the
government’s motion was based in large part on Lewis’s involvement in the three
fatal overdoses that occurred in his house—conduct that was not accounted for in
the calculation of Lewis’s Guidelines sentence. As the district court pointed out,
Lewis had continued to supply drugs to Lindsey even though he knew that she was
reselling or sharing the drugs that he provided, and even as “people were dropping
dead” from those drugs. The court acknowledged Lewis’s own drug addiction and
his multiple health conditions but found that Lewis’s illnesses did not explain or
excuse his conduct.
We cannot assume that an above-Guidelines sentence is unreasonable;
instead, we must give due deference to the district court’s decision that the extent
of its variance is justified by the sentencing factors set out in 18 U.S.C. § 3553(a).
Irey, 612 F.3d at 1187. Lewis has not shown that the district court considered any
improper or irrelevant factor in arriving at his sentence, and under these
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circumstances, the court’s determination that a six-year sentence was necessary to
reflect the seriousness of the offense, protect the public, and deter Lewis and others
from committing similar offenses was not unreasonable. We also note that the
court’s 72-month sentence was well below the 20-year statutory maximum for his
offense as it was charged in the indictment. See 21 U.S.C. § 841(b)(1)(C)
(providing a 20-year maximum sentence for drug offenses involving an
unspecified amount of a controlled substance). This fact is another indicator that
Lewis’s sentence was reasonable. See United States v. Croteau,
819 F.3d 1293,
1310 (11th Cir. 2016).
We therefore affirm Lewis’s conviction and sentence.
AFFIRMED.
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