USA v. Danzavieran Durand Thurman

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11855
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANZAVIERAN DURAND THURMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:21-cr-00103-TPB-MRM-1
____________________
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2 Opinion of the Court 22-11855
Before L UCK , BRASHER, and E DMONDSON, Circuit Judges.
PER CURIAM:
Danzavieran Thurman appeals the procedural and substan-
tive reasonableness of his 120-month sentence. The sentence was
imposed after Thurman pleaded guilty to being a felon in posses-
sion of a firearm and ammunition, in violation of 18 U.S.C. §§
922(g) and 924(a)(2). No reversible error has been shown; we af-
firm.
After Thurman pleaded guilty to the felon-in-possession of-
fense, a probation officer prepared a Presentence Investigation Re-
port (“PSI”). The PSI described the offense conduct as involving an
armed home invasion robbery. During the robbery, two armed
men -- one of whom was later identified as Thurman -- held a
woman and her two minor children at gunpoint. One of the men
also struck the female victim twice in the head with his gun. The
men then stole various items from the victim’s house, including
electronics, jewelry, and $12,000 in cash.
The PSI assigned Thurman a criminal history category of VI
based on Thurman’s prior convictions for attempted robbery, lewd
exhibition, battery, resisting an officer without violence, and for the
possession and sale of drugs. Based on Thurman’s criminal history
category of VI, the total offense level of 25, and the applicable stat-
utory-maximum sentence, Thurman’s advisory guidelines range
was calculated as 110 to 120 months’ imprisonment. Neither party
objected to the PSI.
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22-11855 Opinion of the Court 3
At the sentencing hearing, the district court accepted the
PSI’s calculation of the applicable guidelines range. After consid-
ering the parties’ arguments at sentencing, the totality of the cir-
cumstances, and the 18 U.S.C. § 3553(a) factors, the district court
sentenced Thurman to 120 months’ imprisonment.
On appeal, Thurman first challenges the procedural reason-
ableness of his sentence.* Thurman contends that the district
court failed to consider the sentencing factors set forth in 18 U.S.C.
§ 3553(a). Thurman also argues that the district court failed to ex-
plain adequately the reasons for imposing the chosen sentence.
We review the reasonableness of a sentence under a defer-
ential abuse-of-discretion standard. See Gall v. United States, 552 U.S.
38, 41 (2007). When reviewing a sentence for procedural reasona-
bleness, we review de novo legal questions and review for clear error
the district court’s factual findings. See United States v. Rodriguez-
Lopez, 363 F.3d 1134, 1136-37 (11th Cir. 2004).
A sentence may be procedurally unreasonable if the district
court calculates incorrectly the guidelines range, treats the guide-
lines as mandatory, fails to consider the section 3553(a) factors,
chooses a sentence based on clearly erroneous facts, or fails to ex-
plain the chosen sentence. United States v. Gonzalez, 550 F.3d 1319,
* The government contends that Thurman’s procedural-reasonableness argu-
ment should be reviewed only for plain error because Thurman never raised
expressly the specific objections he now raises on appeal. We need not decide
this issue, however, because we conclude that Thurman’s argument fails un-
der an abuse-of-discretion standard.
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4 Opinion of the Court 22-11855
1323 (11th Cir. 2008). The district court may base its findings of
fact on undisputed statements in the PSI. United States v. Bennett,
472 F.3d 825, 832 (11th Cir. 2006).
Thurman has failed to demonstrate that his sentence is pro-
cedurally unsound. In imposing Thurman’s sentence, the district
court said it had considered the parties’ arguments, the undisputed
information in the PSI, and the advisory guidelines. The district
court also said expressly that it had considered “all the factors iden-
tified in Title 18 U.S. Code section 3553(a)(1) through (7)” and had
determined that the chosen sentence was “sufficient but not
greater than necessary to comply with the statutory purposes of
sentencing.” The district court then explained that a statutory-
maximum sentence of 120 months was appropriate given that
Thurman committed the instant felon-in-possession offense less
than 5 months after being released from prison.
This language demonstrates sufficiently that the district
court considered the section 3553(a) factors. See United States v. Dor-
man, 488 F.3d 936, 938 (11th Cir. 2007) (“The district court need not
state on the record that it has explicitly considered each [section
3553(a)] factor and need not discuss each factor. . . . Rather, an
acknowledgement by the district court that it has considered the
defendant’s arguments and the § 3553(a) factors will suffice.”). The
district court’s explanation for the chosen sentence is also “enough
to satisfy us that it considered the parties’ arguments and had a rea-
soned basis for exercising its own legal decisionmaking authority.”
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22-11855 Opinion of the Court 5
See United States v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir.
2020).
Thurman next challenges his sentence as substantively un-
reasonable. In reviewing the substantive reasonableness of a sen-
tence, we examine “the totality of the circumstances, including . . .
whether the statutory factors in § 3553(a) support the sentence in
question.” See Gonzalez, 550 F.3d at 1324. “The party challenging
the sentence bears the burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors.”
United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012).
The district court must impose a sentence that is “sufficient,
but not greater than necessary, to comply with the purposes” of 18
U.S.C. § 3553(a)(2), which 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 crimes. 18 U.S.C. § 3553(a). We will not vacate a sen-
tence on substantive-reasonableness grounds unless “we are left
with the definite and firm conviction that the district court com-
mitted 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.” See Cabezas-Montano,
949 F.3d at 611.
Thurman has failed to demonstrate that his sentence sub-
stantively is unreasonable. About Thurman’s history and charac-
teristics, the district court noted that Thurman’s criminal record
was “really bad.” Thurman’s first adult conviction was for a 2002
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6 Opinion of the Court 22-11855
attempted robbery committed when Thurman was 15 years’ old.
Thurman was sentenced to ten years’ imprisonment. While incar-
cerated, Thurman incurred 47 disciplinary violations, including a
violation for lewd exhibition: an offense for which Thurman was
convicted and sentenced to an additional 18 months’ imprison-
ment. Within eight months of his release from prison in Septem-
ber 2013, Thurman had three arrests for drug offenses and for re-
sisting an officer without violence. Thurman was convicted of
those offenses and sentenced to three years’ imprisonment.
Thurman was released from prison in June 2017 and -- eight
months later -- committed another drug offense. Thurman served
a 30-month sentence and was released from prison in May 2020.
Four months later, Thurman was involved in a domestic-violence
episode during which he choked his pregnant girlfriend. Thurman
was convicted for battery and for resisting an officer without vio-
lence and was sentenced to one year in prison.
Thurman committed the instant felon-in-possession offense
five months after his release from prison in May 2020 and less than
three weeks after his arrest for battery and resisting an officer.
Given the serious nature and circumstances of Thurman’s
instant gun offense and Thurman’s extensive criminal history and
recidivism, the district court concluded reasonably that the statu-
tory-maximum sentence of 120 months’ imprisonment was suffi-
cient and necessary to reflect the seriousness of the offense, to pro-
mote respect for the law, to provide adequate deterrence, and to
protect the public.
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22-11855 Opinion of the Court 7
On appeal, Thurman argues that the district court failed to
consider adequately Thurman’s mental health diagnoses. During
the sentencing hearing, the district court acknowledged that Thur-
man suffered from mental health conditions, including bipolar dis-
order and schizophrenia. That the district court afforded more
weight to some aggravating factors than it did to other mitigating
factors does not make Thurman’s sentence unreasonable. “The
weight to be accorded any given § 3553(a) factor is a matter com-
mitted to the sound discretion of the district court, and we will not
substitute our judgment in weighing the relevant factors.” United
States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotations and
brackets omitted).
Nor did the district court focus improperly on the possible
state sentence Thurman might have faced had he been prosecuted
for the underlying armed-home-invasion-robbery offense. Alt-
hough the district court inquired about the outcome of Thurman’s
state prosecution, the district court explained that it was seeking to
determine whether Thurman had a related state conviction and
sentence stemming from the October 2020 offense conduct.
On this record, we cannot conclude that Thurman’s sen-
tence was unreasonable or that “the district court committed a
clear error of judgment in weighing the § 3553(a) factors.” See Cab-
ezas-Montano, 949 F.3d at 611. Thurman has failed to meet his bur-
den of showing that his sentence is unreasonable, either procedur-
ally or substantively.
AFFIRMED.
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