United States v. Shamon D. Heatly

        USCA11 Case: 20-10372    Date Filed: 12/31/2020    Page: 1 of 7

                                                     [DO NOT PUBLISH]


                     FOR THE ELEVENTH CIRCUIT

                             No. 20-10372
                         Non-Argument Calendar

                D.C. Docket No. 8:19-cr-00212-CEH-JSS-1







                Appeal from the United States District Court
                    for the Middle District of Florida

                           (December 31, 2020)

Before JILL PRYOR, NEWSOM, and EDMONDSON, Circuit Judges.
           USCA11 Case: 20-10372      Date Filed: 12/31/2020    Page: 2 of 7


      Shamon Heatly appeals his 151-month sentence, imposed after he pleaded

guilty to distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). No reversible error has been shown; we affirm.

      The Presentence Investigation Report (“PSI”) calculated Heatly’s base

offense level as 12, based on the amount of cocaine involved in his offense. The

PSI, however, categorized Heatly as a career offender based on Heatly’s prior

convictions for aggravated assault on a law enforcement officer, resisting an

officer with violence, and delivery of cocaine. Applying both the career-offender

enhancement in U.S.S.G. § 4B1.1(b)(3), and a 3-level acceptance-of-responsibility

decrease under section 3E1.1(a)-(b), Heatly’s total offense level became 29. This

total offense level combined with Heatly’s criminal history category of VI resulted

in an advisory guidelines range of 151 to 188 months.

      Heatly objected to several portions of the PSI. At the sentencing hearing,

the district court overruled Heatly’s objections and adopted the PSI’s guidelines

calculation. The district court sentenced Heatly to 151 months’ imprisonment (to

run concurrent to his unrelated state sentence) followed by 3 years’ supervised


           USCA11 Case: 20-10372           Date Filed: 12/31/2020       Page: 3 of 7


       On appeal, Heatly challenges the inclusion of paragraphs 79 and 80 in the

PSI. The complained-of paragraphs -- located in the “Personal and Family Data”

section -- described two instances in which the mother of Heatly’s daughter

petitioned for an injunction against Heatly based on allegations of domestic abuse.

The state court issued a temporary injunction in 2009 and a permanent injunction

in 2014.

       On appeal, Heatly contends these two paragraphs constitute hearsay and lack

sufficient indicia of reliability and, thus, should not have been considered at

sentencing. Because Heatly raises this argument for the first time on appeal,* we

review only for plain error. See United States v. Johnson, 

694 F.3d 1192

, 1195

(11th Cir. 2012). Under the plain-error standard, Heatly must demonstrate (1) an

error, (2) “that is plain or obvious,” (3) that affected his substantial rights, and (4)

“that seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” See

id. * In the

district court, Heatly objected to paragraphs 79 and 80 only on relevancy grounds.
Because he made no objection based on hearsay or reliability, he failed to preserve properly the
issue for appeal. See United States v. Rodriguez, 

398 F.3d 1291

, 1298 (11th Cir. 2005).
            USCA11 Case: 20-10372      Date Filed: 12/31/2020    Page: 4 of 7

      “A district court has ‘wide latitude in the kinds of information it may

consider in the sentencing decision’ and may consider hearsay evidence as long as

‘the defendant has an opportunity to refute it and the evidence bears a minimal

indicia of reliability.’” United States v. Hall, 

965 F.3d 1281

, 1294 (11th Cir. 2020)

(alterations and emphasis omitted). “To prevail on a challenge to a sentence based

on the consideration of hearsay, a defendant must show (1) that the challenged

evidence is materially false or unreliable and (2) that it actually served as the basis

for the sentence.”

Id. (quotation and emphasis


      Never has Heatly contended that the allegations in paragraphs 79 and 80 are

in fact false. Nor has he demonstrated that the allegations -- which included dates

and state court docket numbers -- lacked sufficient indicia of reliability. Moreover,

nothing evidences that the allegations in paragraphs 79 and 80 played a role in the

district court’s determination of Heatly’s sentence, let alone “actually served as the

basis for the sentence.” On this record, the district court committed no error --

plain or otherwise -- declining to strike paragraphs 79 and 80 from the PSI.


      We next address Heatly’s challenge to the substantive reasonableness of his


          USCA11 Case: 20-10372        Date Filed: 12/31/2020   Page: 5 of 7

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. See Gall v. United States, 

552 U.S. 38

, 41 (2007). “The party

challenging a sentence has the burden of showing that the sentence is unreasonable

in light of the entire record, the § 3553(a) factors, and the substantial deference

afforded sentencing courts.” United States v. Rosales-Bruno, 

789 F.3d 1249

, 1256

(11th Cir. 2015). We may vacate a sentence “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. Pugh,

515 F.3d 1179

, 1191 (11th Cir. 2008).

      We evaluate a sentence’s substantive reasonableness by considering the

totality of the circumstances. See 

Gall, 552 U.S. at 51

. A sentence is substantively

unreasonable if it fails to “achieve the purposes of sentencing stated in section


Pugh, 515 F.3d at 1191

. Under section 3553(a), a district court should

consider the nature and circumstances of the offense, the history and characteristics

of the defendant, the need for the sentence to provide adequate deterrence, respect

for the law, and protection of the public, policy statements of the Sentencing

Commission, provision for the medical and educational needs of the defendant, and

the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1)-(7).

          USCA11 Case: 20-10372       Date Filed: 12/31/2020    Page: 6 of 7

The weight given to a specific section 3553(a) factor is a matter committed to the

sound discretion of the district court. United States v. Clay, 

483 F.3d 739

, 743

(11th Cir. 2007).

      Heatly has failed to demonstrate that his 151-month sentence is

substantively unreasonable. On appeal, Heatly contends that the district court

placed undue weight on his criminal history and failed to consider adequately the

“de miminis” nature of his offense, which involved the sale of 0.73 grams of

cocaine for $100.

      Heatly’s argument is plainly contradicted by the record. At the sentencing

hearing, the district court considered expressly -- and afforded significant weight to

-- evidence that Heatly’s instant offense involved a relatively minor drug

transaction. Based on the nature and circumstances of Heatly’s offense, the district

court explained both that it would impose a sentence at the low end of the

guidelines range and would run that sentence concurrent with the five-year

sentence Heatly was already serving for an unrelated state conviction.

      The district court, however, denied Heatly’s request for a below-guidelines

sentence of five years. After considering Heatly’s arguments and the section

3553(a) factors, the district court found that a sentence at the low end of the

guidelines range was “sufficient but not greater than necessary to comply with the

          USCA11 Case: 20-10372       Date Filed: 12/31/2020    Page: 7 of 7

statutory purposes of sentencing.” In imposing a within-guideline sentence, the

district court stressed that the advisory guidelines range -- which included Heatly’s

career-offender designation -- had been driven by Heatly’s extensive criminal

record. By age 37, Heatly had over 24 prior adult convictions, including

convictions for drug-related offenses, aggravated assault on a police officer,

resisting a police officer with violence, felony fleeing and eluding, assault, and

being a felon in possession of a firearm. Considering the totality of the

circumstances, the district court determined reasonably that a within-guidelines

sentence was necessary to promote respect for the law, to provide adequate

deterrence, and to protect the public from further crimes committed by Heatly.

That Heatly’s sentence is both within the applicable guidelines range and well

below the statutory maximum sentence (20 years) also supports a finding of

reasonableness. See United States v. Croteau, 

819 F.3d 1293

, 1310 (11th Cir.




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