USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-10761 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENYATTA ANDERSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cr-00081-WFJ-JSS-1 ____________________ USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 2 of 6

2 Opinion of the Court 22-10761

Before WILSON, ROSENBAUM, and GRANT, Circuit Judges. PER CURIAM: Kenyatta Anderson appeals his sentence of 60 months’ incar- ceration as substantively unreasonable. For the reasons below, we AFFIRM his sentence. I. A grand jury in the Middle District of Florida charged Ken- yatta Anderson with one count of conspiring to possess cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. § 846. Testifying in his own defense, Anderson admitted to engaging in other illegal conduct while trafficking marijuana; however, he de- nied trafficking cocaine. A jury subsequently convicted Anderson but found the conspiracy only involved marijuana. The probation office drafted a Presentence Investigation Re- port for the sentencing hearing. The probation officer attributed to Anderson one kilogram of cocaine and 200 pounds of marijuana, which resulted in a total offense level of 24. Additionally, a prior conviction for armed cocaine trafficking, possession of marijuana, and carrying a concealed firearm produced a criminal history cate- gory of II. Prior to sentencing, the district court circulated a memoran- dum outlining concerns that might warrant an upward variance. The court cited illegal activities that Anderson admitted were a part of his conspiracy. These included (among others) defrauding his USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 3 of 6

22-10761 Opinion of the Court 3

codefendant, mailing narcotics, and laundering money. The dis- trict court also highlighted Anderson’s general reliance on criminal conduct for his livelihood. The court asked the parties to address these points during the sentencing hearing. At the hearing, the district court reduced Anderson’s offense level to 20, noting that he accepted responsibility, and the conspir- acy did not involve cocaine. This produced a guideline range of 37–46 months. The district court also stated it would not adopt anything from its memorandum in the sentencing. Yet, the district court imposed the statutory maximum of 60 months’ incarceration, varying upwards from the guidelines by 14 months. Explaining its reasoning, the district court opined that An- derson’s criminal history and character weighed in favor of an up- ward variance given his 1) extensive background in trafficking large volumes of marijuana and 2) failure to reform after his first drug trafficking conviction. Largely for the same reasons, the district court found the need to promote respect for the law, deter illegal conduct, and protect the public from crimes all weighed in favor of the variance Anderson appeals his sentence as substantively unreasona- ble. In support, he points out that the government only requested a sentence of 46 months’ imprisonment. Further, Anderson argues that he should not have been faulted so heavily for activities under- lying his conspiracy, since much of that activity is inherent in any drug trafficking offense. In his view, considering these activities would make nearly every drug trafficking conviction eligible for an USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 4 of 6

4 Opinion of the Court 22-10761

upward variance. Finally, citing Rita v. United States, 551 U.S. 338 (2007), Anderson argues that “a reasonable sentence begins some- where within the applicable range,” and here, a “guideline sentence somewhere between 37 and 46 months would satisfy the ‘needs of justice.’” II. We review the substantive reasonableness of a sentence un- der an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The district court abuses its discretion if it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant fac- tor, or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). Sentences outside the guideline range are not presumptively unreasonable. Gall, 552 U.S. at 51. District courts must consider multiple factors to create “individualized assessment[s] based on the facts presented.” Id. at 50. Indeed, a defendant’s history and characteristics; the need to promote respect for the law, provide deterrence, and protect the public; and other illicit conduct ger- mane to the 18 U.S.C. § 3553(a) factors can all weigh into decisions to make upward variations. See United States v. Overstreet, 713 F.3d 627, 637–38 (11th Cir. 2013); 18 U.S.C. § 3553(a)(1)–(2). That the prosecuting office or this court believes a different sentence would be more appropriate is of no consequence. See United States v. Early, 686 F.3d 1219, 1223 (11th Cir. 2012); Irey, 612 F.3d USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 5 of 6

22-10761 Opinion of the Court 5

at 1189. Provided the district court gives an adequate justification for an out-of-guidelines sentence, Gall, 552 U.S. at 50, we will not set the decision aside unless it “truly is unreasonable.” Irey, 612 F.3d at 1191. III. The district court did not abuse its discretion. Rather, it properly rooted its sentencing justifications in the relevant § 3553(a)(1)–(2) factors. The district court described its concerns regarding Anderson, including his history of trafficking large vol- umes of marijuana, his decision to immediately reenter the illegal drug trade after his first three-year sentence, and his heavy depend- ence on criminal activity for his livelihood. The district court went on to explain how applying these facts to the § 3553(a)(1)–(2) fac- tors justified a 14-month upward variance. Reviewing this analysis, and recognizing the deference we are required to give the district court, we do not find the sentence “truly is unreasonable.” Irey, 612 F.3d at 1191. That the district court did not accept the United States’ re- quest for 46 months’ incarceration has no bearing on our conclu- sion. While the United States argued for a 46-month sentence, this did not cap the permissible extent of the district court’s discretion. United States v. Johnson, 132 F.3d 628, 630 (11th Cir. 1998). Nor does the district court’s references to Anderson’s con- duct during the conspiracy alter our decision. To start, district courts are not barred from considering conduct relevant to the USCA11 Case: 22-10761 Date Filed: 11/15/2022 Page: 6 of 6

6 Opinion of the Court 22-10761

§ 3553(a) factors when determining whether a variance is war- ranted. See Overstreet, 713 F.3d at 637–38. Even so, the district court clearly stated that it did not adopt the reasoning from its cir- culated memorandum as grounds for Anderson’s sentence. We see no reason—and Anderson does not provide any—why we should not take the district court at its word. And to the extent the district court mentioned other activities that were part of Anderson’s con- spiracy, the record does not demonstrate that the court placed im- proper weight on them. Irey, 612 F.3d at 1189. IV. The success of Anderson’s appeal does not hinge on this court disagreeing with the sentence imposed. Rather, his appeal hinges on a determination that the district court abused its discre- tion. Concluding it did not, we find Anderson’s sentence is not substantively unreasonable. We therefore AFFIRM his sentence. AFFIRMED.