Case: 19-13748 Date Filed: 08/18/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13748
Non-Argument Calendar
________________________
D.C. Docket No. 1:19-cr-20137-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDOLPH ALVIN,
a.k.a. The President of Liberty Square,
a.k.a. Project Stacks,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 18, 2020)
Case: 19-13748 Date Filed: 08/18/2020 Page: 2 of 8
Before GRANT, LAGOA, and EDMONDSON, Circuit Judges.
PER CURIAM:
Randolph Alvin appeals his 188-month sentence, imposed after he pleaded
guilty to conspiracy to possess with intent to distribute a controlled substance: a
violation of 21 U.S.C. § 846. No reversible error has been shown; we affirm.
On appeal, Alvin contends that the district court applied incorrectly two
sentencing enhancements and, thus, erred in calculating his advisory guidelines
range. First, Alvin challenges the district court’s finding that the charged
conspiracy began before 26 January 2016: a finding that resulted in Alvin’s 25
January 2006 drug conviction qualifying as a prior felony for purposes of a career
offender enhancement under U.S.S.G. § 4B1.1. Next, Alvin argues that the district
court erred in finding that Alvin was subject to a four-level enhancement -- under
U.S.S.G. § 3B1.1(a) -- as the leader of a drug conspiracy that involved at least five
participants and was otherwise extensive. 1
After applying the challenged sentencing enhancements, the district court
determined that Alvin’s total offense level was 31. Given Alvin’s criminal history
1
Alvin raises no challenge to the district court’s application of a 2-level enhancement -- pursuant
to U.S.S.G. § 2D1.1(b)(1) --for possessing a firearm.
2
Case: 19-13748 Date Filed: 08/18/2020 Page: 3 of 8
category of VI, the district court calculated Alvin’s guideline range as between 188
and 235 months. The district court then imposed a sentence of 188 months’
imprisonment.
At sentencing, the district court also said explicitly that -- even absent
application of the career-offender and aggravating-role enhancements -- the court
would have imposed the same 188-month sentence as a reasonable post-Booker2
sentence under the 18 U.S.C. § 3553(a) factors.3
2
United States v. Booker,
543 U.S. 220 (2005).
3
On appeal, Alvin contends that the district court endorsed improperly two different and
incompatible sentences under the section 3553(a) factors. We disagree. After the district court
ruled that Alvin was subject to an aggravated-role enhancement, the district judge said these
words:
I’ll make one other point, and I’ll leave it to the Government to remind me at the
time of sentencing, that in the event that the Court’s determination on this
enhancement is appealed, that I would nonetheless impose or consider imposing
an upward variance based on the nature of the criminal activity as a reasonable
sentence post-Booker. So I want to make sure that the record reflects that there is
both a guideline sentence and a post-Booker reasonable sentence, so that the
Appellate Court has the benefit of knowing what the Court’s sentencing
determination would be in the event that the Court made an error on this
determination.
Later, after the district court calculated Alvin’s advisory guideline range between 188 and 235
months (applying both the aggravated-role and career-offender enhancements) and imposed a
low-end guidelines sentence of 188 months, the district judge made this pronouncement:
Mentioned earlier in these proceedings, that having ruled on the objections in the -
- to the PSI -- that I would also impose a sentence in the alternative, as a post-
Booker sentence, with the 188 months being a reasonable sentence, in the event
any of the objections are appealed and the Court [is] determined to have made an
incorrect calculation of 188 months under the guidelines or as a reasonable
sentence.
3
Case: 19-13748 Date Filed: 08/18/2020 Page: 4 of 8
“We review the district court’s interpretation of the Sentencing Guidelines
de novo and accept its factual findings unless clearly erroneous.” United States v.
Barner,
572 F.3d 1239, 1247 (11th Cir. 2009).
Where -- as in this case -- the district court says that it would have imposed
the same sentence independent of the disputed guideline calculation, we need not
resolve the guideline issue if the sentence imposed is substantively reasonable. See
United States v. Keene,
470 F.3d 1347, 1349 (11th Cir. 2006). In determining the
reasonableness of the sentence, “we must assume that there was guidelines error --
that the guidelines issue should have been decided in the way the defendant argued
and the advisory range reduced accordingly -- and then ask whether the final
sentence resulting from consideration of the § 3553(a) factors would still be
reasonable.”
Id.
In this case, had the district court decided both challenged sentencing
enhancement issues in Alvin’s favor, Alvin’s advisory guidelines range would
have been 57 to 71 months,4 subject to a statutory mandatory 60-month minimum
Contrary to Alvin’s characterization, we read these two statements as showing the same
principles of thought and as reflecting that the district court imposed, at the time of sentencing, a
single post-Booker sentence of 188 months.
4
This assumed advisory guidelines range is based on a revised total offense level of 23: the
combination of a base offense level of 24, a 2-level enhancement for possession of a firearm
under section 2D1.1(b)(1), and a 3-level reduction for acceptance of responsibility. With a non-
career-offender criminal history category of III, this calculation results in a guidelines range of
57 to 71 months. See U.S.S.G. Sentencing Table, Ch. 5, Pt. A.
4
Case: 19-13748 Date Filed: 08/18/2020 Page: 5 of 8
sentence under 21 U.S.C. § 841(b)(1)(B)(iii). Thus, we must determine whether
the sentence imposed was reasonable, “assuming exactly the same conduct and
other factors in the case,” but with a guidelines range of 60 to 71 months, instead
of 188 to 235 months.5 See
Keene, 470 F.3d at 1350.
We evaluate the substantive reasonableness of a sentence -- whether inside
or outside the guidelines range -- under a deferential abuse-of-discretion standard.
Gall v. United States,
552 U.S. 38, 51 (2007). In reviewing the substantive
reasonableness of a sentence, we consider the totality of the circumstances and
whether the sentence achieves the purposes of sentencing stated in section 3553(a).
United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
The purposes of sentencing include promoting respect for the law, providing
just punishment, deterring criminal conduct, and protecting the public from further
crimes. 18 U.S.C. § 3553(a)(2). A sentencing court should also consider the
nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the Guidelines range, policy statements
of the Sentencing Commission, and the need to avoid unwarranted sentencing
disparities. 18 U.S.C. § 3553(a)(1), (3)-(7).
5
On appeal, Alvin never contends that his sentence is substantively unreasonable in the light of
the section 3553(a) factors. Alvin’s reasonableness argument is limited to his portraying the
district judge’s words as self-contradictory and as endorsing two conflicting -- and, thus,
unreasonable -- post-Booker sentences.
5
Case: 19-13748 Date Filed: 08/18/2020 Page: 6 of 8
When a sentence is above the guidelines range, we “may consider the
deviation, ‘but must give due deference to the district court’s decision that the §
3553(a) factors, on a whole, justify the extent of the variance.’” United States v.
Williams,
526 F.3d 1312, 1322 (11th Cir. 2008). “We may vacate a sentence
because of the variance 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.’” United States v. Shaw,
560 F.3d
1230, 1238 (11th Cir. 2009). The party challenging the sentence bears the burden
of establishing that the sentence is unreasonable in the light of both the record and
the section 3553(a) factors. United States v. Talley,
431 F.3d 784, 788 (11th Cir.
2005).
Given the totality of the circumstances and the section 3553(a) factors,
Alvin’s sentence of 188 months is reasonable. At the sentencing hearing, the
district court discussed Alvin’s criminal history, which began at the age of 10 and
which included 15 prior convictions and 7 other arrests. Five of Alvin’s
convictions were for drug offenses, three were for resisting arrest, and one
conviction involved the unlawful carrying of a concealed firearm.
As a result of the firearm offense and two of the drug offenses, Alvin in the
past was sentenced to 366 days’ imprisonment. The remaining convictions
6
Case: 19-13748 Date Filed: 08/18/2020 Page: 7 of 8
resulted in no sentence or sentences of merely one to three days’ time served.
After reviewing Alvin’s criminal history, the district judge remarked that Alvin
had “little, if any, respect for the law and that a term of imprisonment is necessary
and justified in order to deter him from continued criminal conduct.”
In keeping with Alvin’s pattern of criminal activity, the undisputed facts in
this case show that Alvin participated actively -- for over two and a half years -- in
a high-volume drug distribution conspiracy in which Alvin used local
neighborhood stores for the storage and sale of narcotics.
In the light of Alvin’s criminal history and the circumstances of this offense,
the district court determined reasonably that a sentence of 188 months was
necessary to reflect the seriousness of the offense, to promote respect for the law,
to provide just punishment, to provide adequate deterrence, and to protect the
public. We have affirmed as reasonable significant upward variances in cases that
involve extensive ongoing criminal activity or a lengthy criminal record or both –
like this case. See
Shaw, 560 F.3d at 1239-41 (affirming as reasonable a 120-
month sentence -- an upward variance over 3 times the applicable guideline range
of 30 to 37 months -- based chiefly on the defendant’s criminal history and
recidivism); United States v. Lozano,
490 F.3d 1317, 1324-25 (11th Cir. 2007)
(applying the Keene analysis and concluding that a sentence of 72 months (an
upward variance from the advisory guidelines range of 21 to 27 months) was
7
Case: 19-13748 Date Filed: 08/18/2020 Page: 8 of 8
reasonable given defendants’ involvement for over 5 years in an extensive and
elaborate counterfeiting scheme). That the sentence imposed in this case is well
below the statutory maximum sentence of 40 years also supports our conclusion on
reasonableness. See
Gonzalez, 550 F.3d at 1324.
AFFIRMED.
8
