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United States v. Berger ( 2023 )


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  • Case: 22-10431        Document: 00516677742             Page: 1      Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10431
Summary Calendar                                 FILED
____________                                March 15, 2023
Lyle W. Cayce
United States of America,                                                         Clerk
Plaintiff—Appellee,
versus
Andrew Berger,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-479-2
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Andrew Berger pled guilty to conspiracy to acquire firearms
fraudulently. The district court sentenced Berger to the statutory maximum
of 60 months. On appeal, Berger argues his sentence is substantively
unreasonable.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10431        Document: 00516677742           Page: 2   Date Filed: 03/15/2023
No. 22-10431
During sentencing, the district court must “impose a sentence
sufficient, but not greater than necessary, to accomplish the goals of
sentencing, including to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to afford
adequate deterrence to criminal conduct, and to protect the public from
further crimes of the defendant.” Kimbrough v. United States,
    552 U.S. 85
    ,
101 (2007) (quotations marks omitted) (citing
    18 U.S.C. § 3553
    (a)). The
district court must begin its analysis by reviewing the advisory United States
Sentencing Guidelines. See Gall v. United States,
    552 U.S. 38
    , 46 (2007).
Berger contests the substantive reasonableness of his sentence. This
court reviews “an appellant’s claim that [a] sentence is substantively
unreasonable for abuse of discretion. This review is highly deferential,
because the sentencing court is in a better position to find facts and judge
their import under the § 3553(a) factors with respect to a particular
defendant.” United States v. Hernandez,
    876 F.3d 161
    , 166 (5th Cir. 2017)
(quotation marks and citations omitted). The court may, in its discretion,
vary above or below the Guidelines range if it stays within the statutory
sentencing range and fully considers the Section 3553(a) factors. See United
States v. Smith,
    440 F.3d 704
    , 707 (5th Cir. 2006). “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing factors where
it (1) does not account for a factor that should have received significant
weight, (2) gives significant weight to an irrelevant or improper factor, or (3)
represents a clear error of judgment in balancing the sentencing factors.”
    Id. at 708
    .
First, Berger argues that the district court did not adequately account
for his age, upbringing, lack of criminal history, and mental health. The
district court did, however, consider all of these things, in part based on
Berger’s own testimony and admissions. Specifically, the court weighed his
mental health and youth against the significant threat to the public his
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Case: 22-10431        Document: 00516677742         Page: 3   Date Filed: 03/15/2023
No. 22-10431
repeated conduct posed and the need to deter others from engaging in similar
conduct. Thus, we defer to the district court’s findings and weighing of the
factors. See
    id.
    Second, Berger argues that there is an unreasonably and inexplicably
broad disparity between his sentence and his co-conspirators’ sentences.
“However, this disparity factor requires the district court to avoid only
unwarranted disparities between similarly situated defendants nationwide,
and it does not require the district court to avoid sentencing disparities
between co-defendants who might not be similarly situated.” United States
v. Guillermo Balleza,
    613 F.3d 432
    , 435 (5th Cir. 2010). In explaining its
sentence, the district court pointed to: Berger’s involvement in two
shootings; the presence of a firearm he sold at the site of another shooting;
Berger’s role as the organizer and leader of the conspiracy; and Berger’s
repeated illegal purchases of firearms. These factors do not apply to his co-
defendants. Thus, Berger has not shown that his greater sentence created an
unwarranted disparity. See United States v. Ives,
    984 F.2d 649
    , 650 (5th Cir.
1993).
AFFIRMED.
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