USCA11 Case: 23-11317 Document: 33-1 Date Filed: 08/18/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11317
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE ANTHONY RICHARDS,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:23-cr-80005-AMC-1
____________________
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2 Opinion of the Court 23-11317
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Steve Anthony Richards appeals his sentence of 12 months
in prison for attempted illegal re-entry after deportation or re-
moval. We affirm.
I.
Richards argues that the district court violated his proce-
dural due process rights by considering information from a presen-
tence investigation report (PSR) prepared in 2000 for his prior ille-
gal re-entry case. He notes that the report from the earlier case—
like all such reports—was confidential and could not be accessed
by the parties without a court order, and he contends that the court
should have notified him in advance that it would take the older
report into account at sentencing.
To the extent that Richards argues that the district court
should not have reviewed materials from his prior federal criminal
case in preparation for sentencing, we disagree. By statute, district
courts may consider any “information concerning the background,
character, and conduct” of the defendant for sentencing purposes,
without limitation.
18 U.S.C. § 3661. A PSR from a prior similar
offense is a readily available source of such information, and the
district court did not err by reviewing it.
We are likewise unpersuaded by Richards’s argument that
due process required the district court to notify him before
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23-11317 Opinion of the Court 3
sentencing that it would consider the PSR from his prior case. The
only precedent Richards cites in support of his argument states that
as a matter of “[s]ound practice,” “judges in all cases should make
sure that the information provided to the parties in advance of the
hearing, and in the hearing itself, has given them an adequate op-
portunity to confront and debate the relevant issues.” Irizarry v.
United States,
553 U.S. 708, 715 (2008). Richards had that oppor-
tunity here. The probation officer notified him before sentencing
(by addendum to the 2023 PSR) that information from the 2000
PSR was used in the report prepared for his current case. The pro-
bation officer’s addendum also notified Richards that the circum-
stances of his prior offenses would be relevant to the court’s deter-
mination of his sentence, explaining that “if reliable information in-
dicates that the defendant’s criminal history category substantially
underrepresents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes, an
upward departure may be warranted.”
At sentencing, the district court notified Richards that it had
read the 2000 PSR. When defense counsel objected that she had
not been given a copy of the earlier report, the court provided a
copy and took a break so that counsel could review the report with
Richards. After the break, counsel confirmed that she had had an
opportunity to review the report, and neither she nor Richards
raised any further objections to it. To the contrary, counsel argued
that the 2000 PSR corroborated Richards’s position that his prior
illegal re-entry stemmed in part from his youth and lack of famili-
arity with his country of citizenship (Jamaica) at the time.
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4 Opinion of the Court 23-11317
Richards was provided adequate notice that information
from the 2000 PSR would be relevant at sentencing, and he was
given an opportunity to review and rebut, object to, or explain the
information before the district court imposed its sentence. Due
process was satisfied.
II.
Richards also argues that his 12-month sentence was
substantively unreasonable. He contends that his 20-year-old non-
violent drug and immigration offenses did not justify the upward
variance from the Guidelines range of zero to six months in prison.
He also argues that the district court failed to consider the reason
for his attempted illegal reentry—his concern for the safety of his
adult daughter, who is an American citizen—as a mitigating factor.
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). The defendant bears the burden of estab-
lishing that his sentence is unreasonable based on the facts of the
case and the
18 U.S.C. § 3553(a) sentencing factors. United States v.
Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). Those factors include
(among others) the nature and circumstances of the offense, the
defendant’s history and characteristics, and the need for the sen-
tence imposed to reflect the seriousness of the offense, promote
respect for the law, provide just punishment, and afford adequate
deterrence. See
18 U.S.C. § 3553(a). An above-Guidelines sentence
carries no presumption of unreasonableness, though we may con-
sider the extent of the variance in determining whether a sentence
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23-11317 Opinion of the Court 5
was reasonable. Gall,
552 U.S. at 51. We will vacate the sentence
imposed 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. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc) (quotation omitted).
That is not the case here. The district court considered Rich-
ards’s arguments, including his family ties in the United States, his
reasons for re-entering the country, and the length of time since his
prior offenses. But it also considered that Richards had been re-
moved from the United States twice before, and that his second
removal in 2004 stemmed from a prior illegal re-entry conviction.
Despite receiving a sentence of 46 months in prison for his first il-
legal re-entry offense, Richards nonetheless attempted to commit
the same crime again. The court explained that an upward vari-
ance to 12 months—far below the statutory maximum sentence of
20 years—was necessary and appropriate to deter Richards from
reoffending, to promote respect for the law, and to provide just
punishment. See United States v. Croteau,
819 F.3d 1293, 1309 (11th
Cir. 2016) (noting that a sentence well below the statutory maxi-
mum is an indicator of reasonableness). The court’s conclusion
was easily within its “considerable discretion” to decide whether
and how much to vary outside the Guidelines range.
Id.
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6 Opinion of the Court 23-11317
III.
The 12-month sentence imposed by the district court was
procedurally and substantively reasonable. We therefore affirm.
AFFIRMED.
