USCA11 Case: 22-13368 Document: 25-1 Date Filed: 08/21/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13368
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH SIZEMORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cr-00035-TKW-MJF-2
____________________
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2 Opinion of the Court 22-13368
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Kenneth Sizemore appeals his 120-month total sentence for
one count of conspiracy to possess with intent to distribute meth-
amphetamine and oxycodone and one count of distribution of
methamphetamine. Sizemore challenges his total sentence as sub-
stantively unreasonable because the district court gave excessive
weight to the seriousness of the offense conduct, considered a
codefendant’s assumed Guidelines range, and denied his request
for a further downward variance. After review, we affirm
Sizemore’s sentence.
We review the substantive reasonableness of a sentence un-
der a deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). A district court abuses its discretion when it
“(1) fails to afford consideration to relevant 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 con-
sidering the [
18 U.S.C. § 3553(a) 1] factors.” United States v. Irey,
612
F.3d 1160, 1189 (11th Cir. 2010) (en banc).
1 The § 3553(a) factors include (1) the nature and circumstances of the offense
conduct and the history and characteristics of the defendant; (2) the need for
the sentence imposed to reflect the seriousness of the offense; (3) the need of
the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or voca-
tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
tencing Guidelines range; (8) the pertinent policy statements of the Sentencing
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22-13368 Opinion of the Court 3
Sizemore has not met his burden to show his 120-month to-
tal sentence is substantively unreasonable. See United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010) (explaining the party challeng-
ing the sentence bears the burden of proving that it is unreasonable
based on the facts of the case and the § 3553(a) factors). The district
court was within its discretion to weigh the seriousness of the of-
fense conduct more heavily than his mitigating factors. See United
States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015) (stating
a district court must consider all
18 U.S.C. § 3553(a) factors but is
not required to give all factors equal weight and the decision about
how much weight to assign a particular sentencing factor is com-
mitted to the sound discretion of the district court). The district
court considered Sizemore’s age, remorse, prior criminal history,
and substantial assistance to the Government in granting him a sen-
tence below the Guidelines range. See United States v. Hunt,
526 F.3d
739, 746 (11th Cir. 2008) (stating we expect a sentence within a de-
fendant’s Guidelines range to be reasonable).
The district court stated it considered the § 3553(a) factors
and proceeded to discuss the factors in relation to Sizemore. It de-
scribed the harm of opioids and the large quantity of drugs distrib-
uted by Sizemore in analyzing the severity of the offense conduct.
The district court was permitted to compare Sizemore and his
Guidelines range to his codefendants, including Johnny Carr, given
that the § 3553(a) factors include the need to prevent sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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4 Opinion of the Court 22-13368
disparities. Rosales-Bruno,
789 F.3d at 1254;
18 U.S.C. § 3553(a). It
used the Guidelines range of Carr as its “starting point” in calculat-
ing Sizemore’s sentence to prevent sentencing disparities, but then
clarified that it was doing so with respect to where Sizemore would
have been, sentence-wise, except for the substantial assistance that
Sizemore provided.
The district court did not abuse its discretion in weighing the
aggravating and mitigating factors including the seriousness of the
crimes and the Guidelines range of a similarly situated codefend-
ant. Sizemore’s total sentence was not substantively unreasonable.
Thus, we affirm.
AFFIRMED.
