USA v. D'Anthony M. Dillard

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12578
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
D'ANTHONY M. DILLARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:20-cr-00232-ECM-SMD-1
____________________
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2 Opinion of the Court 21-12578
Before JORDAN, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
D’Anthony Dillard appeals his 27-month sentence after
pleading guilty to escaping from custody, in violation of 18 U.S.C.
§ 751(a). He argues that the district court erred in applying a five-
level enhancement for the threatened use of force against a person
during an escape,
see U.S.S.G. § 2P1.1(b)(1), and that his sentence
is substantively unreasonable because it is greater than necessary
to achieve the sentencing purposes identified in 18 U.S.C. § 3553(a).
Following a review of the record and the parties’ briefs, we affirm.
I
Under § 2P1.1(b)(1), a five-level enhancement applies when
an escape involves the “the use or threat of force against any per-
son.” The application notes explain that if bodily injury results
from the use or threat of force, an upward variance may be war-
ranted.
See § 2P1.1, comment. (n. 4) (emphasis added).
Factual findings underlying the application of an enhance-
ment are reviewed for clear error.
See United States v. Williams,
527 F.3d 1235, 1247 (11th Cir. 2008). Generally speaking, we defer
to a district court’s credibility determination “unless it is contrary
to the laws of nature, or is so inconsistent or improbable on its face
that no reasonable factfinder could accept it.”
United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation marks
omitted).
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21-12578 Opinion of the Court 3
Here the district court found, after considering evidence pre-
sented by both sides, that Mr. Dillard had threatened to use force
against another person. It credited the testimony of a police officer
who explained that Mr. Dillard—after being surrounded—shifted
his car into reverse, looked back, accelerated, and ran into a truck
occupied by another officer with enough force to “jolt” that officer
in his seat. We acknowledge that Mr. Dillard presented contrary
evidence, such as the testimony of Charlandra Washington, but
that does not make the district court’s credibility assessment clearly
erroneous. A factual finding is not clearly erroneous when the fact-
finder chooses between two permissible views of the evidence.
See
United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).
On this record, we are not “left with a definite and firm conviction
that a mistake has been committed.”
United States v. Barrington,
648 F.3d 1178, 1195 (11th Cir. 2011).
II
We review the reasonableness of a sentence under the def-
erential abuse-of-discretion standard.
See Gall v. United States,
552 U.S. 38, 41 (2007). The party challenging a sentence bears the
burden of demonstrating that the sentence is unreasonable in light
of the record, the factors listed in 18 U.S.C. § 3553(a), and the sub-
stantial deference afforded sentencing courts.
See United States v.
Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). We will re-
verse only if “left with the definite and firm conviction that the dis-
trict court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range
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4 Opinion of the Court 21-12578
of reasonable sentences dictated by the facts of the case.”
United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
A district court must make an individualized assessment to
determine an appropriate sentence.
See Gall, 552 U.S. at 50. And
it must impose a sentence that is sufficient, but not greater than
necessary, to comply with the factors and purposes listed in §
3553(a)(2). These include the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for
the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct.
See § 3553(a)(2);
United
States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). A court
must also consider the nature and circumstances of the offense and
the history and characteristics of the defendant.
See § 3553(a)(1).
Significantly, a district court need not weigh each factor
equally, but instead may give great weight to one factor over the
others.
See Rosales-Bruno, 789 F.3d at 1254. Absent clear error,
we will not reweigh the § 3553(a) factors ourselves.
See United
States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). Nonethe-
less, a district court should not focus on one factor “single-mind-
edly” to the detriment of other factors, and a court’s unjustified re-
liance on any one § 3553(a) factor may be a symptom of an unrea-
sonable sentence.
See United States v. Crisp, 454 F.3d 1285, 1292
(11th Cir. 2006).
Mr. Dillard’s advisory guideline range was 27-33 months’
imprisonment. The district court denied Mr. Dillard’s request for
a downward variance and imposed a sentence at the bottom of the
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21-12578 Opinion of the Court 5
guidelines range. The court found that Mr. Dillard’s criminal his-
tory category of V was accurate and reflected the seriousness of the
crimes committed. It also explained that Mr. Dillard had chosen to
violate the law every day that he had stayed away from the resi-
dential re-entry center from which he had absconded. And it said
that it had considered the arguments of the parties and the § 3553(a)
factors.
Under the circumstances, including the fact that Mr. Dillard
had threatened the use of force against one of the police officers,
we cannot say that the district court abused its discretion. We ex-
pect that a sentence within the guideline range will be reasonable,
see United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009),
and Mr. Dillard has not convinced us that his bottom-of-the-range
sentence was unreasonable.
III
We affirm Mr. Dillard’s sentence.
AFFIRMED.
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