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United States v. Rodriques Humphrey

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 26-10768

Non-Argument Calendar ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

RODRIQUES JAVAUN HUMPHREY,

Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:25-cr-00233-BL-SMD-1 ____________________

Before LUCK, LAGOA, and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Rodriques Humphrey appeals his sentence of 480 months' imprisonment, a 285-month upward variance from the high end of the properly calculated guideline range. Humphrey

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2 Opinion of the Court 26-10768 pled guilty to four counts: (1) illegal possession of a machine gun;

(2) possession of a firearm with an obliterated serial number; (3) possession of marijuana with the intent to distribute; and (4) pos- session of a firearm in furtherance of a drug trafficking crime. On appeal, Humphrey argues that the district court plainly erred when it stated that Count 4's guideline range was 60 months' imprison- ment to life imprisonment, when the proper guideline range for that count was 60 consecutive months' imprisonment. He also ar- gues that the district court failed to explain adequately its decision to sentence him to Counts 1-3 consecutively and to 240 consecu- tive months for Count 4, and that the district court abused its dis- cretion in improperly weighing the 18 U.S.C. § 3553(a) factors, which led to a substantively unreasonable sentence. Having re- viewed the record and read the parties' briefs, we affirm Humph- rey's sentence.

I.

"We normally review the procedural reasonableness of a sentence under an abuse-of-discretion standard." United States v. Waters, 937 F.3d 1344, 1358 (11th Cir. 2019). Procedural errors in- clude improperly calculating the guideline range, treating the Guidelines as mandatory, "failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016) (footnote omit- ted). "[W]e review the application of the Sentencing Guidelines de novo." United States v. Leonard, 4 F.4th 1134, 1141 (11th Cir. 2021).

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26-10768 Opinion of the Court 3 When a defendant fails to object to the procedural reasona- bleness of his sentence at the sentencing hearing, we review for plain error his objections to the procedural reasonableness of his sentence. United States v. Brenes-Colon, 136 F.4th 1343, 1345 (11th Cir. 2025), cert denied, ___ U.S. ___, 146 S. Ct. 346 (2025). The de- fendant bears the burden of establishing plain error by proving that

"(1) an error occurred; (2) the error was plain; (3) it affected his sub- stantial rights; and (4) it seriously affected the fairness of the judicial proceedings." Id. (quoting United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014)). To show that an error affected his sub- stantial rights, a defendant "must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different." Molina-Martinez v. United States, 578 U.S. 189, 194,

136 S. Ct. 1338, 1343 (2016) (quotation marks omitted). In most cases, the fourth prong of plain error is met if "a plain Guidelines error . . . affects a defendant's substantial rights." Rosales-Mireles v. United States, 585 U.S. 129, 145, 138 S. Ct. 1897, 1911 (2018). In the context of plain-error review of a Guidelines error, the Supreme Court has specified that, if the district court calculated an erroneous Guidelines range, whether the defendant's final sen- tence is within the correct Guideline range, "the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Molina-Martinez, 578 U.S. at 198, 136 S. Ct. at 1345. Nevertheless, the Court explained that there may be instances where a "reasonable probability of preju- dice does not exist" despite application of an erroneous guideline range, such as where the record shows that "the district court

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4 Opinion of the Court 26-10768 thought the sentence it chose was appropriate irrespective of the Guidelines range" because the court's explanation "make[s] it clear that the judge based the sentence he or she selected on factors in- dependent of the Guidelines." Id. at 200, 136 S. Ct. at 1346-47. The Court clarified that, "[w]here, however, the record is silent as to what the district court might have done had it considered the cor- rect Guidelines range, the court's reliance on an incorrect range in most instances will" establish that the defendant's substantial rights were affected. Id. at 201, 136 S. Ct. at 1347. Hence, "in the ordinary case a defendant will satisfy his burden to show prejudice by point- ing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder." Id.

In Thomas, we held that the district court plainly erred in cal- culating the defendant's criminal history category, resulting in a guideline range of 57 to 71 months' imprisonment when the proper range should have been 63 to 78 months' imprisonment. United States v. Thomas, 108 F.4th 1351, 1357 (11th Cir. 2024), cert. denied,

145 S. Ct. 1102 (2025). Applying Molina-Martinez and United States

v. Corbett, 921 F.3d 1032 (11th Cir. 2019), we held that the plain er- ror did not affect the defendant's substantial rights. Thomas, 108 F. 4th at 1356-57. We noted that the upward variance that was nearly double the guideline range "was 'well [above] any possible sentenc- ing range,' which" it noted could be a "'powerful indicator' that a guidelines error did not impact a defendant's substantial rights."

Id. at 1357 (quoting Corbett, 921 F.3d at 1040) (alteration in origi- nal). Moreover, we concluded that the "broader circumstances"

indicated that "'the district court thought the sentence it chose was

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26-10768 Opinion of the Court 5 appropriate irrespective of the Guidelines range,'" noting the court's extensive comments that the defendant's criminal history category underrepresented the severity of his criminal history. Id. (quoting Molina-Martinez, 578 U.S. at 200, 136 S. Ct. at 1346-47). The Sentencing Guidelines provide that, "if the defendant, whether or not convicted of another crime, was convicted of vio- lating [18 U.S.C. §§ 924(c) or 929(a)], the guideline sentence is the minimum term of imprisonment required by statute." U.S.S.G. § 2K2.4(b). Section 924(c)(1)(A)(i) of Title 18 provides that a de- fendant convicted for possessing a firearm in furtherance of a drug trafficking crime has a statutory minimum sentence of 5 years' im- prisonment. 18 U.S.C. § 924(c)(1)(A)(i).

We review Humphrey's objection to the district court's an- nouncement of the guidelines for Count 4 under a plain error standard because Humphrey did not object to the statement at sen- tencing. Brenes-Colon, 136 F.4th at 1345. At sentencing, the district court stated that it was making the specific finding that the advisory guideline range of imprisonment is 108 to 135 months imprison- ment on Counts 1, 2, and 3, and 60 months to life as to Count 4. It was a plain error to note that the guideline for Count 4 is 60 months to life, as U.S.S.G. § 2K2.4(b) dictates that for a conviction under 18 U.S.C. § 924(c), the guideline range is the statutory minimum, which for possessing a firearm in furtherance of drug trafficking, Humphrey's crime of conviction, is 60 months' imprisonment. We conclude that the district court made a misstatement in its original pronouncement of Count 4's guidelines; however, the

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6 Opinion of the Court 26-10768 error did not affect Humphrey's substantial rights. We rely on ev- idence in the record that there was no discussion or debate on Count 4's guidelines, and the district court only noted Count 4's guideline range once. Additionally, after the district court's pro- nouncement of Count 4's guideline range, Humphrey noted that the district court had ruled that the guideline range was 108 to 135 months plus 60, and the district court did not correct this state- ment. The government also asked for an upward variance via sen- tencing Humphrey to life as to Count 4. While the district court did not sentence Humphrey to life, it did find that an upward vari- ance was appropriate, granting the government's motion. The statement of reasons also provides evidence that the dis- trict court made a misstatement of the guidelines range for Count

4. The statement of reasons noted that it adopted the PSI with only two changes, and neither change related to Count 4's guideline range, which was properly listed in the PSI. The statement of rea- sons also included a guideline calculation with the guideline range being listed as 108 to 135 months' imprisonment on Counts 1, 2, 3, plus 60 months consecutive on Count 4. Additionally, the state- ment of reasons noted that the district court granted the govern- ment's request for an above guidelines sentence, and it cited to the § 3553(a) factors it considered.

Thus, despite the district court's plain error in its stated guidelines for Count 4 at the sentencing hearing, Humphrey fails to ultimately show that this error affected his substantial rights such that there is a reasonable probability that he would receive a

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26-10768 Opinion of the Court 7 different sentence if this Court were to reverse, as it appears that the district court was tethered to the proper guideline range. See Molina-Martinez, 578 U.S. at 200-01, 136 S. Ct. at 1346-47; United States v. Corbett, 921 F.3d 1032, 1041 (11th Cir. 2019) (remanding for resentencing because we concluded that "there [wa]s a reasonable probability that the district court's error affected Corbett's sen- tence because, even though the district court varied downward from its calculated sentencing range, its sentencing decision was 'tethered'" to an incorrect Guidelines range, including to the vari- ance that it thought the probation officer would recommend after the district court applied an acceptance-of-responsibility reduc- tion). Accordingly, we affirm as to this issue.

II.

Issues not raised in a party's initial brief on appeal are con- sidered abandoned and will not be addressed absent extraordinary circumstances. United States v. Campbell, 26 F.4th 860, 865, 871-73 (11th Cir. 2022) (en banc). An appellant abandons a claim when he does not "plainly and predominately" raise it and instead only makes a claim with passing references or in a perfunctory manner without authority or argument in support. United States v. Smith,

967 F.3d 1196, 1204 n.5 (11th Cir. 2020) (quotation marks omitted). We review Humphrey's argument for plain error because he did not raise his substantive reasonableness argument in the district court.

After we determine that the imposed sentence includes no procedural errors, we then consider the substantive reasonableness

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8 Opinion of the Court 26-10768 of the sentence imposed under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 51, 128 S. Ct. 586, 591 (2007). We review for an abuse of discretion the district court's decision to impose a consecutive sentence. United States v. Coving- ton, 565 F.3d 1336, 1346 (11th Cir. 2009); see also United States v. Turner, 626 F.3d 566, 573-74 (11th Cir. 2010) (applying an abuse of discretion standard to a defendant's argument that running his sen- tences consecutively was substantively unreasonable). A defend- ant preserves a substantive reasonableness objection by advocating for a shorter sentence before the district court. See Holguin-Hernan- dez v. United States, 589 U.S. 169, 174-75, 140 S. Ct. 762, 766-67

(2020).

District courts generally have discretion to decide whether sentences will run concurrently or consecutively. 18 U.S.C. § 3584(a); Setser v. United States, 566 U.S. 231, 236, 132 S. Ct. 1463, 1468 (2012). Under the Sentencing Guidelines, except as otherwise required by law, "[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concur- rently." U.S.S.G. § 5G1.2(c). However:

If the sentence imposed on the count carrying the highest statutory maximum is less than the total pun- ishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sen-

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26-10768 Opinion of the Court 9 tence equal to the total punishment. In all other re- spects, sentences on all counts shall run concurrently, except to the extent otherwise required by law. Id. § 5G1.2(d).

In determining whether a consecutive sentence is appropri- ate, the district court must consider the factors set forth in

18 U.S.C. § 3553(a). United States v. Bradford, 277 F.3d 1311, 1316- 17 (11th Cir. 2002); 18 U.S.C. § 3584(b). We have noted that, once the district court considers the § 3553(a) factors, "the only limita- tion on running sentences consecutively is that the resulting total sentence must be reasonable." Covington, 565 F.3d at 1347. In Bonilla, we concluded that the district court's sentence was proce- durally and substantively reasonable when it included consecutive sentences, as the district court considered the factors outlined in the comments to U.S.S.G. § 5G1.2, analyzed the § 3553(a) factors, and "offered a detailed explanation as to why consecutive sen- tences were still warranted." United States v. Bonilla, 579 F.3d 1233, 1244-45 (11th Cir. 2009).

Under § 3553(a), the district court must impose a sentence that is "sufficient, but not greater than necessary," "to reflect the seriousness of the offense, to promote respect for the law," "to pro- vide just punishment for the offense," "to afford adequate deter- rence to criminal conduct," "to protect the public from further crimes of the defendant," and "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."

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10 Opinion of the Court 26-10768

18 U.S.C. § 3553(a)(2)(A)-(D). In addition, the court must consider

"the nature and circumstances of the offense," "the history and characteristics of the defendant," and "the need to avoid unwar- ranted sentencing disparities among" similarly situated defendants. Id. § 3553(a)(1), (6). The court must also consider the types of avail- able sentences, the applicable Guidelines range, any relevant policy statements from the Sentencing Commission, and "the need to provide restitution to any" of the defendant's victims. Id. § 3553(a)(4)-(7).

A sentencing court must "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). Whether a sentencing court's explanation satisfies 18 U.S.C. § 3553(c) "necessarily depends upon the circumstances of the par- ticular case." United States v. Steiger, 99 F.4th 1316, 1321 (11th Cir. 2024) (en banc) (quotation marks omitted). A purported unob- jected-to § 3553(c) error "warrants reversal under plain error re- view only when the district court's reasoning is unclear on the face of the record." Id. at 1322, 1325. "If someone with knowledge of the sentencing record can understand the reasons for the sentence imposed, then a district court's technical violation does not warrant reversal under plain error review." Id. at 1326.

A district court abuses its discretion and imposes a substan- tively unreasonable sentence when it (1) does not consider "'rele- vant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.'" United States

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26-10768 Opinion of the Court 11

v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)). The weight the district court gives "to each factor is com- mitted to the sound discretion of the district court," and the "court may attach great weight to one § 3553(a) factor over others."

United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). Further, the district court need not reference all mitigating evidence, as an

"acknowledgment that it has considered the § 3553(a) factors and the parties' arguments is sufficient." Id. at 1356. We will vacate a sentence "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," resulting in "a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." Irey, 612 F.3d at 1190 (quotation marks omitted). It is the defendant's burden to prove the unreasonableness of his sen- tence based on the record and the § 3553(a) factors. United States v. Keene, 470 F.3d 1347, 1350 (11th Cir. 2006).

Sentences outside the guideline range are not presumptively unreasonable. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Although we may consider the extent of a variance, we "must give due deference to the district court's decision that the § 3553(a) factors, as a whole, justify the extent of the variance." Id. "The justifications must be compelling enough to support the degree of variance and complete enough to allow meaningful appellate review." United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation marks omit- ted). We have upheld the substantive reasonableness of sentences far above the guidelines. See e.g., United States v. Dougherty, 754 F.3d

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12 Opinion of the Court 26-10768 1353, 1356, 1358, 1361-64 (11th Cir. 2014) (holding a 428-month sentence substantively reasonable when the guideline range was 220 to 245 months, due to the seriousness of the armed robbery, the officers and civilians who could have been harmed, the need to promote respect for the law, the need to protect the public, and less prominently, the defendant's history and characteristics). The record here shows that the district court did not plainly err in its explanation of Humphrey's sentence. We conclude that the district court adequately explained the § 3553(a) factors that the district court believed warranted an upward variance, including Humphrey's history and characteristics, the nature of the offense, and the need to deter Humphrey from additional criminal conduct. Specifically, the district court considered that when the instant of- fense occurred, Humphrey was on bond for a homicide that was still pending in state court; that Humphrey was still carrying and using a firearm; that Humphrey fled the scene and shot at the po- lice officers; that Humphrey admitted he shot someone (in self-de- fense) who died as a result; and that Humphrey possessed a large amount of drugs. This explanation extended to both the district court's decision to have Counts 1-3 run consecutively and to its sentence for Count 4, as both contributed to the upward variance. Additionally, the sentence is substantively reasonable because the district court properly considered these and other § 3553(a) factors, adequately explaining its decision to vary upward. Accordingly, based on the aforementioned reasons, we af- firm Humphrey's sentence.

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26-10768 Opinion of the Court 13

AFFIRMED.

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United States v. Rodriques Humphrey
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