USA v. Glenn Edward McKennie, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14149
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLENN EDWARD MCKENNIE, JR.,
a.k.a. Glenn Edward McKennie, Jr.,
Defendant-Appellant.
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2 Opinion of the Court 21-14149
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 0:21-cr-60275-WPD-1,
0:18-cr-60277-WJZ-1
____________________
Before J ILL PRYOR , BRANCH, and BLACK , Circuit Judges.
PER CURIAM:
Glenn McKennie, Jr., appeals his sentence of 12 months and
1 day, imposed below the Guidelines range, after pleading guilty to
failing to remain within his residence as required by the conditions
of his confinement, in violation of 18 U.S.C. §§ 751(a) and 4082(a).
He asserts the district court abused its discretion and imposed a
substantively unreasonable sentence because it misapplied the
18 U.S.C. § 3553(a) factors regarding the nature and circumstances
of his offense, his personal characteristics, and his criminal history.
We will vacate a district court’s sentence “only if 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”
as evidenced by a sentence “that is outside the range of reasonable
sentences dictated by the facts of the case.”
United States v. Gold-
man, 953 F.3d 1213, 1222 (11th Cir. 2020) (quotation marks omit-
ted). Section § 3553(a)’s “overarching” instruction is that any sen-
tence must be sufficient but not greater than necessary to comply
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21-14149 Opinion of the Court 3
with the purposes listed in § 3553(a)(2).
Kimbrough v. United
States, 552 U.S. 85, 101 (2007); 18 U.S.C. § 3553. These purposes
include the need to reflect the seriousness of the offense, deter
criminal conduct, protect the public from the defendant’s future
criminal conduct, and provide the defendant with needed training
or care. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence,
the court must also consider the offense’s nature and circum-
stances, the available sentences, the defendant’s history and char-
acteristics, the applicable Guidelines range, any pertinent policy
statements from the Sentencing Commission, the need to avoid
unwarranted sentencing disparities between similarly situated de-
fendants, and the need to provide restitution to any of the defend-
ant’s victims.
Id. § 3553(a)(1), (3)-(7).
The district court did not abuse its discretion in sentencing
McKennie to a below-Guidelines sentence of one year and one day
of incarceration and one year of supervised release.
See Gall v.
United States, 552 U.S. 38, 51 (2007) (reviewing a sentence’s rea-
sonableness for abuse of discretion). The district court did not fail
to consider relevant factors that were due significant weight, give
significant weight to an improper or irrelevant factor, or commit a
clear error of judgment in considering the proper factors.
See
United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015)
(explaining a district court abuses its discretion and imposes a sub-
stantively unreasonable sentence only if it (1) fails to consider rele-
vant factors that were due significant weight, (2) gives significant
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4 Opinion of the Court 21-14149
weight to an improper or irrelevant factor, or (3) commits a clear
error of judgment in considering the proper factors).
First, the district court considered McKennie’s mental health
as a mitigating factor. Although McKennie contends he merited a
more significant downward variance, that argument amounts to a
disagreement with the district court’s weighing of the § 3553(a) fac-
tors, which does not render a decision an abuse of discretion.
See
id. Second, regarding the circumstances of the offense, McKennie
essentially asserts the facts of the offense should have been weighed
more heavily. This, too, does not amount to an abuse of discretion.
See id.
Finally, although McKennie contends the district court ig-
nored his arguments that his criminal history category overrepre-
sented his history, the district court acknowledged that argument
and determined that, in assessing his criminal history, it should also
consider his unscored offenses. Although McKennie asserts his un-
scored prior offenses should not be counted against him, the dis-
trict court acted within its discretion in considering facts relevant
to his “background, character, and conduct.”
See United States v.
Tome, 611 F.3d 1371, 1379 (11th Cir. 2010) (stating a district court
may consider any information relevant to the defendant’s “back-
ground, character, and conduct,” including offenses that did not re-
sult in convictions). Thus, McKennie’s issues with the district
court’s weighing of his criminal history also amount to complaints
about the district court’s weighing of acceptable factors, which is
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21-14149 Opinion of the Court 5
not an abuse of discretion. Accordingly, the district court did not
abuse its discretion in sentencing McKennie, and we affirm.
AFFIRMED.
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