Case: 18-15055       Date Filed: 07/01/2020       Page: 1 of 6



                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 18-15055
                               ________________________

                      D.C. Docket No. 2:18-cr-00149-LSC-CSC-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

OLANDO EARL HARRIS, JR.,

                                                                      Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            ________________________

                                        (July 1, 2020)

Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and JUNG, *
District Judge.
GRANT, Circuit Judge:




*
 Honorable William Jung, United States District Judge for the Middle District of Florida, sitting
by designation.
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      Olando Harris, Jr. appeals the procedural and substantive reasonableness of
his sentence for being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Because Harris’s underlying offense conduct led to someone’s death,
the district court imposed a 92-month sentence—well above the Sentencing
Guidelines range of 33–41 months—to reflect the seriousness of his actions.
Harris argues that the district court did not adequately explain its deviation from
the Guidelines. Additionally, he says that in light of his exemplary post-offense
behavior, his lengthy sentence was greater than necessary to comply with the

sentencing purposes identified in 18 U.S.C. § 3553(a)(2). We disagree. Though
the district court could have chosen to impose a sentence in keeping with the
Guidelines, the court’s imposition of a higher penalty was not outside its
significant discretion.
                                          I.
      Early one evening, for reasons unknown, Harris had a confrontation with
Terius Gillum in the Smiley Court neighborhood of Montgomery, Alabama.
Harris pulled out a .357 magnum revolver, which he had purchased on the street a
few days before, and fired at Gillum’s feet. Gillum returned fire as he retreated in
the direction of a gang called the CBM Young-ins. Harris continued shooting
while he ran in the opposite direction.
      Predictably, the gunfight drew the attention of the nearby gang members,
who were standing across the street from the Money Team gang. The rival gangs
began shooting and, in the ensuing gunfire, four people (including Harris) were



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injured and one, Rodriquez Lamar Smith, was killed. There is no reliable evidence
that one of Harris’s bullets killed Smith.

      The United States charged Harris with violating 18 U.S.C. § 922(g)(1). Just
a few weeks later, Harris signed a plea agreement. He and the government both
agreed that the offense conduct was most analogous to the Guidelines offense of
aggravated assault, resulting in a sentencing range of 33–41 months. The
probation officer had a different view, and found that the appropriate cross-
reference offense was not aggravated assault, but voluntary manslaughter. Based

on the offense conduct, Harris’s acceptance of responsibility, and his criminal
history—which included adult convictions for recklessly evading arrest, theft, and
burglary—the probation officer calculated that Harris’s offense level was 26 and
criminal-history category was IV. That equates to a Guidelines range of 92–115
months.
      While indicating some disapproval of the agreement between Harris and the
government, the sentencing court ultimately went along with it. Based on that
agreement, the court calculated an offense level of 16 with a Guidelines range of
33–41 months. The government then asked for a sentence within the middle of the
Guidelines range. Even so, expressing a belief that “the sentence is way under
provided for by the [G]uidelines calculation,” the court imposed a 92-month
sentence, noting that the sentence imposed was still below the statutory maximum
of 120 months. Harris now appeals.




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                                                II.
         We review the reasonableness of sentencing decisions for abuse of

discretion. See United States v. Irey, 

, 1188 (11th Cir. 2010) (en
banc).
                                               III.
                                                A.
         A sentence is procedurally unreasonable if the district court commits a
significant procedural error, such as “failing to consider the § 3553(a) factors” or

“failing to adequately explain the chosen sentence.”1 Gall v. United States, 

, 51 (2007). If a court imposes an above-Guidelines sentence, it should
“ensure that the justification is sufficiently compelling to support the degree of the
variance.”

Major departures will require more explanation than minor
ones. See

sentencing court is not required to “state on the record that it
has explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” United States v. Docampo, 

, 1100 (11th Cir.
2009) (citation omitted). And in all cases, the appealing party bears the burden of
showing that the district court’s sentence is “unreasonable in light of the record and

1
  Section 3553(a) directs the court to consider: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant”; (2) “the need for the sentence” to “reflect
the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the
offense,” “afford adequate deterrence to criminal conduct,” “protect the public from further
crimes of the defendant,” and “provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner”; (3) “the
kinds of sentences available”; (4) “the kinds of sentence and the sentencing range established”
for “the applicable category of offense committed by the applicable category of defendant as set
forth in the guidelines”; (5) “any pertinent policy statement”; (6) “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct”; and (7) “the need to provide restitution to any victims of the offense.”


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the § 3553(a) factors.” United States v. Tome, 

, 1378 (11th Cir.
2010).

      The district court adequately explained its chosen sentence. First, the court
took into account Harris’s “extensive record,” which included multiple convictions
for violent crimes. The court also emphasized that Harris started a violent
confrontation that led to a death: “he was the one who pulled out the firearm.”
Finally, the court acknowledged that it had considered Harris’s salutary post-
offense conduct. No more was needed.

      Given the court’s adequate explanation, we have no need to probe further.
The fact that Harris’s 92-month sentence is at the bottom of the Guidelines range
that the probation officer would have applied—under a sentencing scenario the
court rejected—does not change this calculus. And neither the sentencing court’s
verbalized skepticism of the plea agreement, nor an above-Guidelines sentence,
invite us to conclude that the court implicitly rejected the plea agreement that it
explicitly accepted.
                                          B.
      To find a district court’s sentence substantively unreasonable, we must be
“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.”

(citation omitted). The defendant “bears the burden of
demonstrating that his total sentence is unreasonable.” United States v. Covington,

, 1346–47 (11th Cir. 2009).


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      Harris argues that the court impermissibly relied on his criminal history and
the seriousness of the offense conduct while “overlook[ing] numerous mitigating

circumstances” that bear on the other § 3553(a) factors. For instance, Harris says
that the court should have considered his marriage, four children, long-term
employment, and law-abiding conduct since the 2015 shooting. The first problem
with Harris’s argument is that the district court specifically said that it considered
the recent turnaround in Harris’s behavior. But even if we were giving his good
post-indictment choices fresh consideration, it would not give us a “definite and

firm conviction” that Harris’s sentence was more than necessary to achieve the
sentencing goals of § 3553(a). The weight given to each factor is committed to the
sentencing court’s sound discretion. United States v. Croteau, 

,
1309 (11th Cir. 2016). We cannot see how it was an abuse of discretion to give
great weight to Harris’s criminal history and the seriousness of the offense conduct
while giving relatively less weight to his post-offense conduct.
                                          IV.
      We have no reason to question the evidence offered about Harris’s new
approach to life. But we also have no reason to think that the district court failed
to apply the § 3553(a) factors, failed to adequately explain its chosen sentence, or
failed to choose a sentence inside the bounds of reasonableness. That means
Harris has not shown that his sentence is procedurally or substantively
unreasonable, so we affirm the district court’s judgment.
      AFFIRMED.




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