Filed: Sep. 09, 2020
Latest Update: Sep. 09, 2020
Summary: Case: 20-10422 Date Filed: 09/09/2020 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10422 Non-Argument Calendar _ D.C. Docket No. 2:19-cr-00229-TFM-MU-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHN ALLEN DALE, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (September 9, 2020) Before WILSON, GRANT, and LUCK, Circuit Judges. PER CURIAM: Case: 20-10422 Date Filed: 09/09
Summary: Case: 20-10422 Date Filed: 09/09/2020 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 20-10422 Non-Argument Calendar _ D.C. Docket No. 2:19-cr-00229-TFM-MU-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHN ALLEN DALE, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (September 9, 2020) Before WILSON, GRANT, and LUCK, Circuit Judges. PER CURIAM: Case: 20-10422 Date Filed: 09/09/..
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Case: 20-10422 Date Filed: 09/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10422
Non-Argument Calendar
________________________
D.C. Docket No. 2:19-cr-00229-TFM-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ALLEN DALE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 9, 2020)
Before WILSON, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Case: 20-10422 Date Filed: 09/09/2020 Page: 2 of 7
John Dale appeals the substantive reasonableness of his eighty-four month
sentence for possessing a firearm after being convicted of a felony, in violation of
18 U.S.C. section 922(g)(1). We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2016, Dale was convicted of murder in Alabama state court. Dale had
fatally shot someone while the victim was inside a vehicle. On November 24, 2018,
he was released on probation. Seven months later, while Dale was still on probation,
police received a report from a driver that a man in a green car had pulled a gun on
him and was now following him. A responding police officer pulled the green car
over and ordered its driver, Dale, out of the car. During a security pat down, the
officer discovered a revolver in Dale’s waistband. The government charged him
with one count of being a felon in possession of a firearm. Dale pleaded guilty.
At Dale’s sentencing hearing, the district court calculated a total offense level
of seventeen with a criminal history category of III to give a guideline range of thirty
to thirty-seven months. The district court found the guideline range inappropriate
and varied upward to sentence Dale to eighty-four months’ imprisonment. The court
found that Dale had previously fatally shot a person in a car (a possible capital
offense), which led to his murder conviction. See Ala. Code § 13A-5-40(a)(17)
(2013). The circumstances of Dale’s possession of the firearm, according to the
district court, repeated the same behavior. Dale concealed a pistol on his person, as
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opposed to possessing a long gun for hunting, which indicated he felt he could be in
a situation where he could kill a person. The court also found that the passenger in
Dale’s car had pulled a gun on the person in the car they were following, which
placed Dale in similar circumstances to his prior offense. Further, Dale showed a
lack of respect for the law by possessing a firearm shortly after leaving custody,
especially because he knew he could not lawfully have one.
Given Dale’s history, the district court thought society needed to be more
concerned about him than other people. Dale’s possession of a firearm was different
than that of another person convicted of a felony because he had put a firearm to its
ultimate use. And the district court found that Dale’s recent term in custody had not
deterred him because he possessed a firearm shortly after his release. The court
summarized that the sentence addressed the seriousness of the offense and the
objectives of punishment, deterrence, and incapacitation.
STANDARD OF REVIEW
We review for an abuse of discretion the substantive reasonableness of a
sentence. United States v. Irey,
612 F.3d 1160, 1165 (11th Cir. 2010) (en banc). “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.”
Id. at 1189.
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DISCUSSION
Dale argues that his sentence is substantively unreasonable because the
district court placed too much weight on his prior murder conviction and neglected
to consider mitigating factors. The district court must impose a sentence “sufficient,
but not greater than necessary” to comply with the purposes of 18 U.S.C. section
3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need for a sentence to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment, deter criminal conduct, and protect the public from future criminal
conduct.
Id. § 3553(a)(2). The weight due each section 3553(a) factor lies within
the district court’s sound discretion. United States v. Kuhlman,
711 F.3d 1321, 1327
(11th Cir. 2013). The party challenging the sentence bears the burden of showing it
to be unreasonable in light of the record and the section 3553(a) factors. United
States v. Langston,
590 F.3d 1226, 1236 (11th Cir. 2009).
Here, the district court did not abuse its discretion. Contrary to Dale’s
assertion, the district court considered other factors besides his prior murder
conviction. For the nature and circumstances of the offense, the court found that
Dale concealed a pistol, indicating he was in a position where he could kill someone.
See 18 U.S.C. § 3553(a)(1). Dale’s possession of a firearm mere months after he
was released from custody and while on probation and with the knowledge that he
could not have a gun demonstrated his lack of respect for the law. See
id.
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§ 3553(a)(2)(A). And the district court saw a need for additional deterrence given
that Dale had re-offended so soon. See
id. § 3553(a)(2)(B).
Moreover, the district court’s heavy reliance on Dale’s murder conviction was
not improper. “[T]he sentencing court is permitted to attach great weight to one
factor over others.” United States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir.
2015) (internal quotation marks omitted); see also United States v. Sanchez,
586
F.3d 918, 936 (11th Cir. 2009) (“[T]he district court did not abuse its discretion when
it determined that [the defendant’s] criminal history was sufficiently compelling to
justify . . . an upward variance above th[e] guidelines range.”). Dale had a previous
conviction for killing someone by shooting into a car—what could have been a
capital offense. Not only is that one of the most serious offenses on the books, but
it also, as the district court noted, had many similarities to Dale’s felon-in-possession
crime. Dale possessed a pistol in a car while following another motorist that his
passenger had threatened with a gun. Dale’s possession of a gun in a car chasing a
motorist while on probation for killing someone in a car with a gun is both a serious
offense deserving of punishment as well as a public safety risk. The district court
appropriately considered that these circumstances and Dale’s history demonstrated
a strong need for punishment, deterrence, and incapacitation. See 18 U.S.C.
§ 3553(a)(2).
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Dale argues that the district court erred in imposing an upward variance when
his criminal history category already accounted for his murder conviction, but we
have rejected this argument before. See, e.g., United States v. Moran,
778 F.3d 942,
983 (11th Cir. 2015). A district court does not abuse its discretion by imposing an
upward variance for a previous offense when it finds similarities between the past
and current offenses because that is a proper consideration of the offender’s history
and characteristics. See United States v. Williams,
526 F.3d 1312, 1324 (11th Cir.
2008) (citing 18 U.S.C. § 3553(a)(1)). That is what the court appropriately did here.
Nothing else indicates substantive unreasonableness. While Dale argues that
the district court did not consider mitigating evidence, the court listened to Dale’s
counsel’s arguments concerning Dale’s young age, his acceptance of responsibility,
and the circumstances of his offense. The district court accepted Dale’s argument
that he did not point the gun during the offense. It also reviewed Dale’s presentence
investigation report and adopted its factual findings and heard his allocution. See
United States v. Cabezas-Montano,
949 F.3d 567, 612 (11th Cir. 2020) (holding that
the district court did not fail to weigh the defendants’ individual histories and
circumstances when it “explicitly considered the defendants’ [presentence
investigation reports] and downward-variance arguments, and it also heard their
allocutions”). Additionally, Dale’s sentence was well within the 120-month
statutory maximum, see 18 U.S.C. § 924(a)(2), which “points strongly to
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reasonableness,” United States v. Nagel,
835 F.3d 1371, 1377 (11th Cir. 2016). And
we have upheld similar variances based on a defendant’s previous offenses. See
United States v. Overstreet,
713 F.3d 627, 638 (11th Cir. 2013) (affirming 420-
month sentence varied upward from a guideline range of 180 to 188 months for a
felon-in-possession offense in part because the court found the defendant had
previously murdered his wife and that “not only cast[] a very negative light on [the
defendant’s] character, but also demonstrate[d] the need for a lengthy sentence to
protect the public from the defendant”); United States v. Hunt,
941 F.3d 1259, 1263–
64 (11th Cir. 2019) (affirming 60-month sentence varied upward from a guideline
range of 30 to 37 months for a felon-in-possession offense because of the
defendant’s “history of using firearms during illegal activity” and the need to
promote deterrence and protect the public).
AFFIRMED.
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