USA v. Michael Steven Blashinsky

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10301
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL STEVEN BLASHINSKY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00019-WWB-GJK-1
____________________
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2 Opinion of the Court 21-10301
Before WILSON, ROSENBAUM , and BRANCH, Circuit Judges.
PER CURIAM:
Michael Blashinsky appeals his total sentence of 412 months’
imprisonment for two-drug related counts, one count of possession
of a firearm in furtherance of a drug-trafficking crime, and one
count of possession of ammunition by a felon. Blashinsky argues
that his sentence was procedurally and substantively unreasonable
because the district court failed to properly balance and weigh the
18 U.S.C. § 3553(a) factors and placed improper emphasis on his
prior criminal history in imposing the sentence. After review, we
affirm.
I. Background
On September 21, 2020, Blashinsky pleaded guilty without a
plea agreement to conspiracy to distribute and to possess with in-
tent to distribute (Count 1), possession of drugs with intent to dis-
tribute (Count 2), possession of a firearm in furtherance of a drug-
trafficking crime (Count 3), and possession of ammunition by a
felon (Count 4). The presentence investigation report (PSI) indi-
cated that Blashinsky had 19 convictions spanning from 1983 to
2018, but that he primarily served probation for these offenses or a
few days in jail. Because of the time period requirements of the
sentencing guidelines, however, many of Bachinsky’s otherwise
scorable prior offenses did not receive criminal history points in the
calculation of his recommended guidelines sentencing range
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21-10301 Opinion of the Court 3
because they occurred so long ago.1 The PSI also referenced other
criminal conduct for which Blashinsky was arrested but never pros-
ecuted.2
Blashinsky’s resulting guidelines range was 352 to 425
months’ imprisonment. The statutory terms of imprisonment
were ten years to life on Counts 1 and 2, five years to life on Count
3 (to be imposed consecutively to any other term imposed), and a
maximum of ten years on Count 4.
Blashinsky objected in writing to the inclusion of any crimi-
nal conduct in the PSI for which he was not prosecuted. At the
sentencing hearing, Blashinsky asked the district court to disregard
any criminal conduct for which he was not prosecuted, while ac-
knowledging that the rules allow for such information to be in-
cluded in the PSI. The district court overruled Blashinsky’s
1 For instance, Blashinsky had a 1998 Ohio conviction for possession of LSD,
a 2000 Ohio conviction for assault, a 2001 Florida conviction for driving under
the influence, and a 2009 conviction for possession of cocaine, all of which did
not score criminal history points due to the age of the convictions.
See
U.S.S.G. § 4A1.2(e)(3) (providing that prior offenses that fall outside of certain
time frames are not counted for criminal history purposes).
2 These arrests occurred in Florida and included possession of cocaine in 2008;
aggravated assault with a deadly weapon and battery (domestic violence) in
2013; tampering with a witness and resisting an officer without violence in
2013; battery (domestic violence) in 2014 and 2018; sale/delivery of Fentanyl
in 2019; aggravated assault with a weapon, felony battery, and robbery (sud-
den snatching) in 2019; and sale/delivery of Fentanyl and possession of Fenta-
nyl in 2019.
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4 Opinion of the Court 21-10301
objection because such information is allowed to be in the PSI but
explained that it was not going to give any weight at sentencing to
criminal conduct for which he was not prosecuted.
Blashinsky then argued that the 15-year minimum manda-
tory term that he faced based on Counts 1, 2, and 3 was more than
sufficient to meet the purposes of sentencing under the 18 U.S.C.
§ 3553(a) factors. Therefore, he requested a below-guidelines sen-
tence. The government requested that Blashinsky receive a sen-
tence within the guidelines range.
The district court stated that it considered the § 3553(a) fac-
tors, including the seriousness of the underlying drug offenses and
Blashinsky’s lengthy criminal history spanning decades and involv-
ing numerous drug offenses. The district court then sentenced
Blashinsky to a total of 412 months’ imprisonment, to be followed
by five years of supervised release. Blashinsky objected generally
that the sentence was procedurally and substantively unreasona-
ble. This appeal followed.
II. Discussion
Blashinsky argues that his sentence is procedurally and sub-
stantively unreasonable because the district court relied on his
prior offenses that did not receive any criminal history points, im-
properly weighed and balanced the § 3553(a) factors, and imple-
mented a sentence that was greater than necessary to achieve the
goals of the § 3553(a) factors.
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21-10301 Opinion of the Court 5
Generally, we review a sentence for both procedural and
substantive reasonableness under a deferential abuse-of-discretion
standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). A sen-
tence can be procedurally unreasonable if, among other things, the
district court “fail[s] to consider the § 3553(a) factors.”
Id. Alt-
hough the district court is required to consider the § 3553(a) fac-
tors, it is not required to “state on the record that it has explicitly
considered each” of them or “to discuss” each of them.
United
States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013) (quoting
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)). In-
stead, an acknowledgement by the district court that it considered
the § 3553(a) factors is sufficient.
United States v. Goldman,
953 F.3d 1213, 1222 (11th Cir. 2020).
Here, Blashinsky’s sentence is not procedurally unreasona-
ble because the district court explicitly stated that it considered the
§ 3553(a) factors. Further, the district court thoroughly explained
its consideration of the § 3553(a) factors such as the nature, sever-
ity, and circumstances of the offenses and Blashinsky’s criminal his-
tory.
When reviewing for substantive reasonableness we consider
the totality of the circumstances and the party challenging the sen-
tence bears the burden of establishing that it is unreasonable based
on the facts of the case and the § 3553(a) factors.
United States v.
Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018). A district court
abuses its discretion when it (1) fails to consider relevant factors
that were due significant weight, (2) gives an improper or
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6 Opinion of the Court 21-10301
irrelevant factor significant weight, or (3) “commits a clear error of
judgment in considering the proper factors.”
United States v.
Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (quotation
omitted). Importantly, the weight given to a particular § 3553(a)
factor “is committed to the sound discretion of the district court,”
and the district court is not required to give “equal weight” to the
§ 3553(a) factors.
Id. at 1254 (quotation omitted).
Because such an abuse of discretion infrequently occurs, “it
is only the rare sentence that will be substantively unreasonable.”
Id. (quotation omitted). We will “vacate the sentence if, but 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.’”
United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (
en banc) (quot-
ing
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
Here, the district court’s sentence is substantively reasona-
ble. The record confirms that the district court considered the
§ 3553(a) factors. Although Blashinsky may disagree with how
those factors were weighed, the weight afforded to each factor “is
committed to the sound discretion of the district court.”
Rosales-
Bruno, 789 F.3d at 1254 (quotation omitted). To the extent
Blashinsky’s argument that the district court erred in considering
prior offenses that received no criminal history points refers to the
criminal conduct for which he was not prosecuted, the district
court explicitly stated that it was not considering “for any weight
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21-10301 Opinion of the Court 7
in sentencing” any “arrests where [Blashinksy] was not prose-
cuted.” To the extent that Blashinsky refers to the district court’s
consideration of his prior convictions for which he received no
criminal history points, we note that he never objected on this basis
in the district court. Regardless, the district court was required to
consider these prior convictions as part of the “history and charac-
teristics of the defendant” as stated in § 3553(a)(1). And the district
court was entitled to give more weight to this factor.
Rosales-
Bruno, 789 F.3d at 1254.
Furthermore, the court did not commit a clear error of judg-
ment. Blashinsky pleaded guilty to conspiracy and possession of
large quantities of drugs and possession of a firearm in relation to
a drug-trafficking crime and possession of ammunition by a felon—
serious offenses. Moreover, Blashinsky’s total 412-month sentence
is within the guidelines range and below the statutory maximum
of life, both of which are indicators of reasonableness.
See United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do
not automatically presume a sentence within the guidelines range
is reasonable, we ordinarily expect [such a sentence] . . . to be rea-
sonable.” (quotation omitted));
United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008) (explaining that a sentence that is below
the statutory maximum is another indicator of reasonableness).
Accordingly, we conclude that Blashinsky’s total 412-month
sentence is both procedurally and substantively reasonable, and we
affirm.
AFFIRMED.
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