USA v. Nicholas Ham

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12240
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS HAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00179-WFJ-SPF-2
____________________
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2 Opinion of the Court 22-12240
Before J ILL PRYOR , NEWSOM , and H ULL , Circuit Judges.
PER CURIAM:
Nicholas Ham appeals his 66-month sentence for
distribution of fentanyl, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). On appeal, Ham argues that his above-advisory-
guidelines sentence is substantively unreasonable because (1) the
district court found, without sufficient justification, that the 18
U.S.C. § 3553(a) factors support his sentence and (2) his sentence
resulted in unwarranted sentencing disparities. After careful
review of the record, we affirm Ham’s 66-month sentence.
I. FACTS
On September 18, 2019, 21-year-old Ham purchased what
he believed were several bags of heroin from his supplier. Ham
loaded some of the substance into a smoking device, smoked it, and
then gave the device to his minor girlfriend, G.W. G.W.
overdosed. Ham administered two doses of Narcan to G.W. and
attempted to resuscitate her. G.W.’s friend contacted emergency
services, who treated G.W. on the scene and then took her to a
hospital. Law enforcement officers apprehended and arrested
Ham. A laboratory analysis of the substance consumed by G.W.
detected fentanyl.
While in jail, Ham placed several relevant phone calls to his
mother and G.W. In one phone call with his mother, Ham
instructed her to retrieve a stash of Xanax that he had stored in a
post office box and told her that he intended to flee if he made bail.
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22-12240 Opinion of the Court 3
In another call, Ham and his mother discussed her progress in
selling the Xanax to make money to pay for Ham’s attorney.
Further, in several phone calls with his mother, Ham
indicated that he intended to obstruct justice, either by promising
to assault G.W. or otherwise preventing her from cooperating with
law enforcement. Specifically, Ham declared his intent to (1) beat
G.W., (2) kill G.W. by “spray[ing] her house” with an AR-15, and
(3) rob G.W.’s new boyfriend and “sho[o]t up” his house. In
addition, Ham asked his mother to persuade G.W. not to
cooperate with authorities.
Ham also contacted G.W. himself to try to convince her to
lie to protect him. In one call, Ham instructed G.W. to lie in her
deposition about his role in the overdose. In another call, Ham
asked G.W. to skip her deposition, advising that she was required
to attend only the trial.
After Ham was released from jail on bail, Ham repeatedly
called, texted, and emailed G.W., despite a court order forbidding
him from contacting her. On March 6, 2020, G.W. recorded a
phone call during which she twice asked Ham to stop calling her
and Ham said, “I’m only talking to you so you don’t testify.” On
March 9, 2020, authorities arrested Ham for violating the
no-contact order, but Ham was released on bond that same day.
On March 29, 2020, Ham attended a party where G.W. and
her new boyfriend were also present. At that party, Ham “sucker-
punched” G.W. in the face multiple times, causing her to fall to the
ground. Ham then climbed on top of G.W. and continued
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4 Opinion of the Court 22-12240
punching her. G.W. suffered two black eyes and a concussion. A
bystander called 911, an officer arrived on the scene, and Ham was
arrested.
Back in jail, Ham placed more phone calls to his mother.
During those phone calls, Ham said (1) he “should have killed
[G.W.’s] bitch ass” and (2) G.W. “deserved to get the fuck beaten
out of her.” Ham also asked his mother to pay G.W. money in
exchange for her refusal to cooperate with the prosecution.
II. PROCEDURAL HISTORY
A. Indictment & Guilty Plea
In June 2020, a federal indictment charged Ham with one
count of distribution of fentanyl resulting in serious bodily injury,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Pursuant to a written plea agreement, Ham waived his right
to be charged by indictment and pleaded guilty to a superseding
information charging him with distribution of fentanyl—without
serious bodily injury—in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C).
B. Presentence Investigation Report (“PSR”)
Ham’s PSR recommended (1) a base offense level of 12, (2) a
two-level increase under U.S.S.G. § 3C1.1 for Ham’s several
attempts to obstruct justice by attempting to threaten G.W. and
convince her not to testify against him, and (3) a two-level
reduction under U.S.S.G. § 3E1.1(a) for acceptance of
responsibility. Ham’s adjusted offense level was 12.
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22-12240 Opinion of the Court 5
With four criminal history points, Ham’s criminal history
category was III. Ham’s advisory guidelines range was 15 to 21
months’ imprisonment.
C. Sentencing
At sentencing, the government did not (1) request a specific
sentence or (2) make a motion for an upward variance. Ham
requested a sentence of time served because of the time he had
already served (27 months) on related state charges.
The district court found that an upward variance was
warranted and sentenced Ham to 66 months’ imprisonment,
followed by 5 years of supervised release.
The district court noted that it had considered (1) the record,
(2) the nature and circumstances of the offense, (3) the violence
involved, (4) the need for public safety, (5) the advisory guidelines
range, and (6) all the factors identified in 18 U.S.C. § 3553(a)(1)–(7).1
The district court explained that the upward variance was
supported by the following: (1) the severity of the conviction;
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, deter criminal conduct, protect the public
from future crimes of the defendant, and provide the defendant with needed
educational or vocational training or medical care; (3) the kinds of sentences
available; (4) the applicable guidelines range; (5) the pertinent policy
statements of the Sentencing Commission; (6) the need to avoid unwarranted
sentence disparities; and (7) the need to provide restitution to victims.
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6 Opinion of the Court 22-12240
(2) the underlying violence described in the PSR; (3) the need for
the public to be protected; (4) the need for specific and general
deterrence; and (5) the fact that Ham’s guilty plea to the charge in
the information allowed Ham to avoid an adjusted offense level of
38 that accompanied the initial charge in the indictment.
Indeed, if Ham had been convicted of the original serious-
bodily-injury charge in the indictment, (1) he would have been
subject to a 20-year statutory minimum sentence, and (2) his base
offense level would have been 38. See 21 U.S.C. § 841(b)(1)(C) (“[I]f
death or serious bodily injury results from the use of [fentanyl, the
defendant] shall be sentenced to a term of imprisonment of not less
than twenty years[.]”); U.S.S.G. § 2D1.1(a)(2) (requiring a base
offense level of 38 if the defendant is convicted under § 841(b)(1)(C)
and “the offense of conviction establishes that death or serious
bodily injury resulted from the use of the substance”).
Ham appealed his 66-month sentence.
III. DISCUSSION
Ham contends that his above-advisory-guidelines sentence
is substantively unreasonable. “We review the substantive
reasonableness of a sentence for abuse of discretion, considering
the totality of the circumstances.” United States v. Oudomsine, 57
F.4th 1262, 1266 (11th Cir. 2023). Ham “bears the burden of
establishing that his sentence is unreasonable based on the record
and the § 3553(a) factors.” Id.
The district court must impose a sentence that is “sufficient,
but not greater than necessary.” 18 U.S.C. § 3553(a). The district
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22-12240 Opinion of the Court 7
court abuses its discretion when it (1) fails to consider relevant
factors that were due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) commits a clear error of
judgment by balancing the proper factors unreasonably.
Oudomsine, 57 F.4th at 1266.
“We will vacate a defendant’s sentence as substantively
unreasonable 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.’” Id. (quoting United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc)).
A. Sufficient Justification for 66-Month Sentence
To begin with, Ham argues that his 66-month sentence is
substantively unreasonable because the district court found,
without sufficient justification, that the § 3553(a) factors support his
sentence. We disagree. The district court clearly explained its
reasons for imposing the 66-month sentence, and the court did so
in light of the § 3553(a) sentencing factors.
The record establishes that Ham (1) distributed fentanyl to
G.W. (his minor girlfriend) who then overdosed and nearly died,
(2) urged G.W. to lie to authorities to protect him, (3) said in
recorded phone calls that he would beat or kill G.W. to prevent her
from cooperating and “sho[o]t up” her new boyfriend’s house, and
(4) “sucker-punched” and hit G.W. until she had two black eyes
and a concussion.
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8 Opinion of the Court 22-12240
When sentencing Ham, the district court expressly stated
that it had considered (1) the record, (2) the nature and
circumstances of the offense, (3) the violence involved, (4) the need
for public safety, (5) the advisory guidelines range, and (6) all the
§ 3553(a) factors.2
In varying upward, the district court relied on the following:
(1) the severity of the conviction; (2) the underlying violence
described in the PSR; (3) the need for the public to be protected;
(4) the need for specific and general deterrence; and (5) the fact that
Ham’s guilty plea to the charge in the information allowed Ham to
avoid an adjusted offense level of 38 that accompanied the initial
charge in the indictment. Accordingly, the district court
sufficiently explained its reasoning for its sentence.
Ham also takes issue with the district court’s consideration
of the 20-year statutory minimum penalty that he would have
faced if he had been convicted of the initial charge in the
indictment. In deciding what sentence to impose, a district court
may consider the penalty related to uncharged conduct. See, e.g.,
United States v. Camiscione, 591 F.3d 823, 836 (6th Cir. 2010); United
States v. Reif, 920 F.3d 1197, 1199 (8th Cir. 2019); United States v.
2 While violent behavior and uncharged conduct are not factors set forth in
§ 3553(a), they are appropriate considerations when a district court reviews
the history and characteristics of the defendant. See, e.g., United States v. Butler,
39 F.4th 1349, 1355 (11th Cir. 2022) (“[A] sentencing court may impose an
upward variance based upon uncharged conduct as it relates to the history and
characteristics of the defendant, as well as the need to promote respect for the
law, afford adequate deterrence, and protect the public.”).
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22-12240 Opinion of the Court 9
James, No. 20-12459, 2021 WL 2909729, at *4 (11th Cir. July 12,
2021) (unpublished) (“[T]he penalty related to uncharged conduct
can be helpful in assessing what sentence to impose.”). Moreover,
Ham’s 66-month sentence is almost 15 years below that statutory
minimum, which also indicates the district court did not abuse its
discretion in sentencing Ham.
B. No Unwarranted Sentencing Disparity
Ham also asserts that his sentence is substantively
unreasonable based on the disparity between his sentence of 66
months’ imprisonment and sentences imposed on other
defendants that distributed fentanyl to customers who overdosed
or died. We disagree.
Section 3553(a)(6) is concerned with unwarranted disparities
in sentencing among federal defendants. 18 U.S.C. § 3553(a)(6).
When evaluating alleged sentencing disparities, we ask “whether
the defendant is similarly situated to the defendants to whom he
compares himself.” United States v. Duperval, 777 F.3d 1324, 1338
(11th Cir. 2015).
Ham has not shown that any of the cases he cites involve
situations like his, where the defendant—in addition to distributing
fentanyl—obstructed justice, declared his intent to harm or kill the
victim, and physically attacked the victim. Those aggravating
factors contributed to Ham’s above-advisory-guidelines sentence.
Instead of citing cases with the same or similar aggravating factors,
Ham merely cited other cases where the defendant distributed
drugs, the victim suffered serious bodily injury or died, and the
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10 Opinion of the Court 22-12240
defendant received a lower sentence than Ham did. Without more
information on those other cases, Ham has not shown those
defendants are similarly situated to him. United States v. Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009) (“A well-founded claim of
disparity . . . assumes that apples are being compared to apples.”
(quotation marks omitted)).
But even if Ham had shown that the other defendants were
similarly situated to him, that would not mean his sentence was
substantively unreasonable. The district court was required to
consider the § 3553(a) factors and was permitted to impose a
different sentence based on the application of those factors to
Ham’s specific case. Gall v. United States, 552 U.S. 38, 52, 128 S. Ct.
586, 598 (2007) (“It has been uniform and constant in the federal
judicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique study
in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.” (quotation
marks omitted)). Consistent with that responsibility, the district
court detailed specific facts about Ham and his conduct that led the
court to conclude that a sentence of 66 months was reasonable. See
United States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021) (“A district
court’s sentence need not be the most appropriate one, it need only
be a reasonable one.” (quotation marks omitted)).
* * *
For these reasons, we conclude that Ham’s 66-month
sentence is substantively reasonable. We therefore affirm.
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22-12240 Opinion of the Court 11
AFFIRMED.
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