United States v. Alexandre Ovadia

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-14255

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXANDRE OVADIA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:24-cr-20164-DPG-1

____________________

Before JORDAN, KIDD, and HULL, Circuit Judges.

PER CURIAM:

After a guilty plea, Alexandre Ovadia appeals his

thirty-month prison sentence on his cyber harassment conviction

under 18 U.S.C. § 2261A(2)(B). Particularly, Ovadia argues that the

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evidence at his sentencing does not support the district court’s

finding that Ovadia used “credible threats of violence.” That

finding made Ovadia ineligible for a two-level reduction to his

offense level under U.S.S.G. § 4C1.1, a provision for offenders with

no criminal history points (the “zero-point offender reduction”).

After careful review, we affirm Ovadia’s sentence because

the district court did not err in finding that Ovadia made credible

threats of violence, thereby rendering him ineligible for the

zero-point offender reduction. Alternatively, any error in not

applying a two-level reduction under § 4C1.1 was harmless because

(1) the district court made a Keene1 statement that indicated he

would have imposed a thirty-month prison sentence even with that

§ 4C1.1 reduction; and (2) Ovadia has not shown his thirty-month

prison sentence was unreasonable under his lowered advisory

guidelines range.2

I. FACTUAL BACKGROUND

From November 2022 to March 2024, Ovadia sent at least

217 threatening emails to various individuals. As Ovadia described

to FBI agents, he sent the emails to combat a freemason-backed

pedophilia ring that had infected the United States government.

1United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).

2As detailed later, the § 4C1.1 reduction would have lowered Ovadia’s

advisory guideline range from 24-30 months imprisonment to 18-24 months

imprisonment.

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Ovadia sent emails to people he knew, including business

associates and family members.

Ovadia’s former business partner, “R.M.,” who lived in

Miami, Florida, was the target of numerous emails. Ovadia

previously resided in Miami, but he sent these emails from Israel

and Colorado.

Ovadia’s emails were unhinged, often consisting of

slur-ridden threats typed in all capital letters with numerous

misspellings or non sequiturs. For example, Ovadia sent one email

to R.M. that referred to R.M. as a homophobic slur and had a

subject line stating, “I AM GOING TO KILL YOU.” Another email

to R.M. stated, “IM GOING TO DRILL HOLES THROUGH

YOUR SKULL” and “IM GOING TO EAT YOUR FACE.”

Several of Ovadia’s emails suggest he knew the locations of

the targets of his threats. First, in one particularly gruesome email

sent to R.M., Ovadia threatened to rape R.M. and referenced

R.M.’s residence in Miami, Florida, by writing, “[R.M.] local miami

gay found in pieces in Biscayne bay . . . Police have no suspects.”

Second, Ovadia sent an email to R.M. suggesting Ovadia tracked

or “logged” R.M., saying: “I’m going to kill you //

ahahahHJJHHHahahhHHHHJ guess who hasn’t moved from that

shack in Normandy[, Florida] // AGHHH huess who still lives in

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that revitz apt // Ahhahahah // Ur movements I have u logged //

Looks like u don’t make ur decisions // Ur just a pawn.” 3

Law enforcement traced back to Ovadia each email account

used to send the threatening messages. Among other things, law

enforcement subpoenaed Google and internet-service providers

for account owner information and IP addresses.

In April 2024, when FBI agents intercepted Ovadia in the

Miami airport upon his return from a trip to Israel, Ovadia

admitted that he created two of the email addresses used to send

the messages in this case. Ovadia further admitted that he sent an

estimated 1,000 threatening emails to different people whom he

believed to be pedophiles. Ovadia claimed that his threats were in

response to threats he received from members of the pedophile

ring, with Ovadia’s goal being to “get on their level to be heard.”

Ovadia, however, did not provide the agents any proof that he had

received any threats.

II. PROCEDURAL HISTORY

A. Indictment and Guilty Plea

In April 2024, a grand jury in the Southern District of Florida

returned an indictment charging Ovadia with two counts of cyber

3This small sample of Ovadia’s messages omits some of his more offensive

language; we hesitate to commit his other vulgarities to paper. And it is

unnecessary to do so to resolve the issues in this appeal.

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harassment in violation of 18 U.S.C. § 2261A(2)(B). 4 Count 1 related

to Ovadia’s communications sent between November 2022 and

March 2024 to one victim, R.M. Count 2 related to Ovadia’s

communications sent between September 2023 and March 2024 to

another victim, M.K.

In September 2024, pursuant to a plea agreement, Ovadia

pled guilty to Count 1. The government agreed to, and the district

court later did, dismiss Count 2 of the indictment. Ovadia agreed

to a factual proffer statement, wherein he stipulated that the facts

were sufficient to prove the crime charged in Count 1 under 18

U.S.C. § 2261A(2)(B).

B. Presentence Investigation Report

A probation officer prepared a presentence investigation

report (“PSI”) using the 2024 Sentencing Guidelines manual. For

Ovadia’s conviction on Count 1, the PSI calculated a total offense

level of 19, consisting of: (1) a base offense level of 18 pursuant to

U.S.S.G. § 2A6.2(a); (2) a four-level increase because the offense

involved “a pattern of activity involving stalking, threatening,

418 U.S.C. § 2261A(2)(B) makes it unlawful for any person to “with the intent

to kill, injure, harass, intimidate, or place under surveillance with intent to kill,

injure, harass, or intimidate another person, use[] the mail, any interactive

computer service or electronic communication service or electronic

communication system of interstate commerce, or any other facility of

interstate or foreign commerce to engage in a course of conduct

that . . . causes, attempts to cause, or would be reasonably expected to cause

substantial emotional distress to a person described in clause (i), (ii), or (iii) of

paragraph (1)(A).”

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harassing, or assaulting the same victim,” pursuant to

U.S.S.G. § 2A6.2(b)(1); (3) a two-level decrease for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a); and (4) an additional

one-level decrease for Ovadia timely notifying the government of

his intent to plead guilty, pursuant to U.S.S.G. § 3E1.1(b).

With a total offense level of 19 and a criminal history

category of I, the PSI calculated Ovadia’s advisory guidelines range

on Count 1 to be 30 to 37 months of imprisonment.

C. Ovadia’s Criminal History

Although the PSI assigned Ovadia zero criminal history

points, it listed other arrests and pending charges involving Ovadia.

Several of these matters involved Ovadia engaging in threatening

and aggressive conduct. For example, in 2021, Ovadia was arrested

for battery on a law enforcement officer in Hollywood, Florida. See

Fla. Stat. § 784.07. In 2023, Ovadia was arrested in Summit County,

Colorado, on charges of committing (1) felony menacing, (2) a bias

motivated crime, and (3) harassment by striking, kicking, or

shoving. See Colo. Rev. Stat. §§ 18-3-206, 18-9-121, 18-9-111. Both

of these criminal matters remained pending as of the PSI’s

preparation date. 5

5Relatedly, a civil action was filed against Ovadia in 2021, and the petitioner

sought a domestic violence injunction against Ovadia for conduct involving

stalking. That civil case has been closed, and the PSI does not disclose the

outcome of the litigation.

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As relevant here, the PSI disclosed that Ovadia had an

additional run-in with law enforcement—this time initiated by

Ovadia. In August 2023, Ovadia went to an FBI office in Denver,

Colorado. There, Ovadia (1) complained agents were not doing

enough to address the hacking of his cell phone, and (2) requested

an FBI badge and gun so he could handle the matter himself. When

his request was denied, Ovadia became verbally abusive and, using

vulgar language, accused the FBI agent of being a pedophile.

Ovadia complied when asked to leave, but he continued to use

offensive language as he departed the FBI office.

The PSI also included descriptions of four disciplinary

infractions committed by Ovadia while in federal custody.

According to Federal Bureau of Prisons (“BOP”) records, Ovadia

was sanctioned, convicted, and punished for various instances of

refusing to obey orders, being insolent to staff members, refusing

to stand for count, and telephone abuse.

D. Ovadia’s Objections to the PSI

Ovadia made two guidelines objections to the PSI. 6

1. U.S.S.G. § 2A6.2(b)(1)—Pattern of Harassing Same

Victim

Ovadia argued he should receive only a two-level increase

to his offense level under U.S.S.G. § 2A6.2(b)(1), rather than the

6Ovadia made several objections to the facts and the recommended special

conditions of supervised release included in the PSI. On appeal, no party raises

any issues relating to these objections.

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four-level increase included in the PSI. Section 2A6.2(b)(1) includes

five categories of aggravating factors and requires (1) a two-level

increase if the offense involves one category, or (2) a four-level

increase if the offense involves two or more categories. Ovadia

highlighted that the PSI included only one aggravating factor, to

wit: a pattern of criminal activity involving the same victim. Thus,

Ovadia argued this meant that his offense level should have been

increased by only two levels, not four levels under § 2A6.2(b)(1).

The government also objected to the PSI’s treatment of

U.S.S.G. § 2A6.2(b)(1). The government pointed out that the PSI

failed to include a description of a second aggravating factor when

applying the four-level increase under § 2A6.2(b)(1). The

government argued that two aggravating factors applied to

Ovadia’s conduct because Ovadia, in addition to engaging in a

pattern of harassing or threatening the same victim, also

threatened to use a dangerous weapon when Ovadia said that

(1) he would drill holes in a victim’s skull; and (2) the victim’s body

would be found in pieces in the Biscayne Bay. See U.S.S.G.

§ 2A6.2(b)(1)(D) (including “possession, or threatened use, of a

dangerous weapon” as an aggravating factor). Thus, the

government contended a four-level increase should still apply.

2. U.S.S.G. § 4C1.1—Zero-Point Offender Reduction

More importantly to this appeal, Ovadia argued he should

receive a two-level reduction to his offense level under U.S.S.G.

§ 4C1.1, which provides a potential reduction for offenders with

zero criminal history points. The PSI did not mention § 4C1.1 or

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explain why Ovadia, who had zero criminal history points, was

ineligible for the zero-point offender reduction in § 4C1.1.

E. Sentencing Hearing—Guidelines Objections

1. U.S.S.G. § 2A6.2(b)(1)

At Ovadia’s December 2024 sentencing hearing, the district

court began by addressing whether Ovadia’s conduct involved two

or more aggravating factors such that a four-level increase was

required under U.S.S.G. § 2A6.2(b)(1). The district court found the

record, including the PSI’s sample of Ovadia’s messages, did not

contain any explicit reference to a dangerous weapon sufficient to

establish a second aggravating factor under § 2A6.2(b)(1)(D). 7

Therefore, the district court sustained Ovadia’s first objection,

overruled the government’s objection, and stated it would impose

a two-level increase under § 2A6.2(b)(1) rather than the four-level

increase included in the PSI. The government does not appeal this

ruling.

2. U.S.S.G. § 4C1.1(a)(3)

The district court also elicited the government’s position on

Ovadia’s second objection as to § 4C1.1. The government stated

that it did not believe the zero-point offender reduction should

7Additionally, the district court declined to consider an email included in an

addendum to the PSI wherein Ovadia wrote, “LOL IM COMING TO MIAMI

WITH GERNAADES AND I HAVE ADDRESSES

SHAHAHAHHAHAHAHA AAIM GOING TO BOMB YOU ALL.” The dis-

trict court reasoned that the threat did not relate to a victim identified in the

indictment or PSI.

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apply because Ovadia made “credible threats of violence” against

the victims. U.S.S.G. § 4C1.1(a)(3).

Ovadia responded that his threats were not credible, in part

because nothing in the PSI suggested Ovadia took any steps to

carry out the threats he made via email. In response, the

government highlighted messages that suggested Ovadia knew

where his victims resided. Particularly, the government quoted the

email wherein Ovadia, in part, said: “[G]uess who hasn’t moved

from that shack in Normandy? . . . Ur movements I have u logged.”

The government provided some details, not found in the PSI

or factual proffer, when it explained that the “shack in Normandy”

email demonstrated that Ovadia knew where the targets of his

threats resided. For example, the prosecutor represented that R.M.

lived in Normandy: “From this, it’s clear that the defendant knows

where this victim lives, and this victim, who is the named victim in

this indictment . . . actually did live in Normandy at that time.” Isle

of Normandy is a neighborhood of Miami Beach, Florida. Ovadia

did not object to the prosecutor’s representations regarding R.M.’s

residence.

The prosecutor continued to add: “At the time that this

particular e-mail was sent, the defendant was actually still located

in Miami. He was not in Israel or Colorado like [when] some of the

other threatening emails . . . were sent.” Counsel for Ovadia

immediately corrected the prosecutor’s statement and pointed out

Ovadia was in Israel on February 19, 2024, when the “shack in

Normandy” email was sent. It is not disputed, however, that

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Ovadia was originally from Miami and, indeed, was arrested at the

Miami airport upon return from Israel in April 2024.

The district court overruled Ovadia’s objection and found

Ovadia was disqualified for the § 4C1.1 zero-point offender

reduction because he had made credible threats of violence in

connection with the offense. The district court found that a

reasonable person would find Ovadia’s threats to be credible

considering the totality of the circumstances, including “the

volume and frequency of the threats, the fact that the defendant

was very familiar with the victims and their whereabouts, and in

specifically identifying the victim’s current location.” After

Ovadia’s counsel contended that a determination of credibility

from a victim’s subjective viewpoint was inappropriate, the district

court reiterated that it was making an objective determination of

credibility. Ultimately, the district court did not reduce Ovadia’s

offense level by two levels pursuant to the zero-point offender

adjustment in § 4C1.1.

F. Recalculated Advisory Guidelines Range

After the district court’s rulings on the guidelines objections,

Ovadia’s recalculated total offense level was 17—two levels lower

than the offense level in the PSI—due to the application of a

two-level, rather than a four-level, “pattern of activity” increase

pursuant to U.S.S.G. § 2A6.2(b)(1). Ovadia’s total offense level of

17 and a criminal history category of I yielded a recalculated

advisory guidelines range of 24 to 30 months of imprisonment.

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G. Arguments and Allocution

The government requested that Ovadia be sentenced to

thirty months of imprisonment, the top of the recalculated

guidelines range. After briefly summarizing the nature and

circumstances of Ovadia’s offense, the government read victim

statements from R.M. and M.K. Both victims described needing

therapy to cope with Ovadia’s emotionally distressing messages.

Both victims suggested Ovadia’s threats led to strained

relationships with business partners who either became aware of

Ovadia’s messages or themselves received threats from Ovadia.

Lastly, the government described the incident leading to Ovadia’s

criminal charges in Colorado, which it said showed Ovadia

“actually does move forward and try to accomplish the threats that

he makes to his victims . . . if they are in his face.” 8

Ovadia requested an eighteen-month, below-guidelines

sentence. Ovadia’s counsel justified the request by highlighting

that Ovadia (1) was “struggling with intense drug addiction,”

(2) had no prior criminal convictions, (3) made no attempt to carry

out his threats, and (4) accepted responsibility for his conduct from

the moment of his arrest in the Miami airport. The district court

asked Ovadia’s counsel what it should make of Ovadia’s multiple

8At the sentencing hearing, Ovadia, through counsel, “denie[d] the allega-

tions” relating to his Colorado arrest and questioned the credibility of the in-

cident report. Ovadia clarified that he “object[ed] . . . to the information alleg-

ing that he committed a crime in connection with this pending [Colorado]

case.”

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disciplinary sanctions from the BOP, something the district court

found “rare” and “unusual” to see in a PSI. Ovadia’s counsel

described the incidents as “minor disciplinary incidents” that were

“reflective of someone that’s never been in jail before.”

Ovadia briefly allocuted. Ovadia attributed his conduct to

his having “overexerted [his] freedom of speech.” Ovadia stated

that he was the first person to go to the FBI to report R.M. When

the district court asked why Ovadia reported R.M. to the FBI,

Ovadia responded, “Well, Your Honor, I was being hacked.”

H. District Court’s Imposition of Sentence

The district court sentenced Ovadia to thirty-months

imprisonment, followed by three years of supervised release.

Ovadia objected to the denial of the § 4C1.1 zero-point offender

reduction and the district court’s finding that his threats were

credible. The district court responded in effect that, even with the

zero-point offender reduction, the sentence would not be less than

thirty months. In full, the district court said:

Okay. Your objections are noted but I will say, even

if I had given the defendant that reduction, I think I

am pretty confident that I would end up back in the

same place as far as the 30-month sentence. Had

he -- even if he qualified for the four-level

enhancement, I was prepared to sentence him higher

than the 30 months. I lowered that having considered

the fact that I felt that only a two-level reduction

should have been given, but having considered all the

3553(a) factors and the circumstances here, I just can’t

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imagine a scenario where less than the 30 months is

warranted but your objections are noted.

Ovadia timely appealed.

III. STANDARD OF REVIEW

“We review de novo the interpretation and application of the

Sentencing Guidelines.” United States v. Kluge, 147 F.4th 1291, 1296

(11th Cir. 2025) (quoting United States v. Dupree, 57 F.4th 1269, 1272

(11th Cir. 2023) (en banc)). The district court’s factual findings at

sentencing, however, are reviewed under the clearly erroneous

standard. United States v. Bergman, 852 F.3d 1046, 1070 (11th Cir.

2017) (citations omitted).

We will reverse a sentence as “substantively unreasonable”

only if the district court committed an abuse of discretion in

imposing the sentence. United States v. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008).

IV. DISCUSSION

A. U.S.S.G. § 4C1.1—Zero-Point Offender Reduction

On appeal, Ovadia argues that the district court erroneously

found him ineligible for a zero-point offender reduction under

U.S.S.G. § 4C1.1. Ovadia contends that no evidence supported the

district court’s finding that he made credible threats of violence in

connection with his offense.

As background, U.S.S.G. § 4C1.1 requires that the

defendant’s offense level be decreased by two levels if the

defendant (1) “did not receive any criminal history points”; and

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(2) meets ten other criteria enumerated in § 4C1.1(a). U.S.S.G.

§ 4C1.1(a)(1)-(11). As relevant here, one of the ten remaining

criteria to receive a § 4C1.1 reduction is that “the defendant did not

use violence or credible threats of violence in connection with the

offense.” U.S.S.G. § 4C1.1(a)(3) (emphasis added). 9

A defendant bears the burden of showing a sentence

reduction is required under § 4C1.1. See United States v. Wilson, 884

F.2d 1355, 1356 (11th Cir. 1989) (“The guidelines contemplate that

. . . the defendant has the burden of proving the applicability of

guideline sections which would reduce the offense level.”).

B. “Credible Threats of Violence”

The phrase “credible threats of violence” or nearly identical

language appears in the text of the Sentencing Guidelines several

times, but never receives a definition from the Guidelines’ text or

commentary. See U.S.S.G. §§ 2D1.1(b)(2), 4C1.1(a)(3), 5C1.2(a)(2).

It also does not appear that any circuit has undertaken to define the

phrase in any detail.

No matter, because “[t]he language of the Sentencing

Guidelines, like the language of a statute, must be given its plain

and ordinary meaning.” United States v. Rogers, 989 F.3d 1255, 1261

(11th Cir. 2021) (quotations omitted). Dictionary definitions can

provide guidance to understanding a term’s ordinary meaning.

Kluge, 147 F.4th at 1298.

9On appeal, the government does not contend any other provision in

§ 4C1.1(a) bars Ovadia from receiving the zero-point offender reduction.

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“Credible” is an adjective defined as “offering reasonable

grounds for being believed or trusted.” Merriam-Webster,

https://perma.cc/AP7R-258Y (last visited Nov. 5, 2025). Black’s

Law Dictionary defines “threat” as a “communicated intent to

inflict harm or loss on another or on another’s property.” Threat,

Black’s Law Dictionary (12th ed. 2024). Thus, a combination of the

two definitions means a “credible threat” is a reasonably believable

communication of an intent to inflict harm.

Ovadia has not shown there was no evidence to support the

district court’s finding that his threats were credible.

Instead, the undisputed facts in the PSI and factual proffer

statement provided sufficient evidentiary support for the district

court’s finding that Ovadia’s emails were reasonably believable

communications of an intent to inflict harm. No one disputes that

Ovadia’s messages, which described the graphic killing, rape, and

torture of the recipients, expressed an intent to inflict harm

through violence. Ovadia’s threats were reasonably believable too.

This is not a case where the harasser did not actually know his

victims. Rather, Ovadia obsessively sent hundreds of emails to

former business partners and family members he personally knew

and claimed to be tracking. Given his personal relationships with

the recipients, he believably claimed to know where the threatened

victims lived.

Ovadia argues his messages were not “credible” threats

because he sent the messages from Colorado or Israel and lacked

immediate physical proximity to the victims located in Florida. But

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Ovadia ignores evidence that he had lived in Florida and was even

arrested in the Miami Airport upon his return from Israel. It is

reasonable to believe an individual capable of such repeated,

obsessive behavior of sending 217 threatening emails would travel

to his former home state and act on his threats made to one or

more of his former business partners or family members. That

Ovadia later told FBI agents he was only responding to threats sent

to him so that he could be “heard” does not change that his

outward manifestations made his threats believable.

Ovadia’s argument that the district court improperly relied

on unsupported factual proffers made by the government at the

sentencing hearing lacks merit. The district court found Ovadia’s

conduct involved “specifically identifying the victim’s current

location.” Ovadia contends the district court improperly relied on

the prosecutor’s statement that R.M. lived in Normandy—a

neighborhood in Miami Beach referenced in an email to R.M. It is

true that “absent a stipulation or agreement between the parties,

an attorney’s factual assertions at a sentencing hearing do not

constitute evidence that a district court can rely on.” United States

v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (citations

omitted). Ovadia, however, did not object during sentencing to the

prosecutor’s representation that R.M. lived in Normandy.

Even setting the Normandy representation aside, the PSI

disclosed that (1) R.M. lived in Miami; (2) Ovadia indicated in at

least one email that he knew R.M. lived in Miami; and (3) Ovadia

stated that he had R.M. “logged.”

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At bottom, we conclude that Ovadia has shown no error in

the district court’s finding that Ovadia made “credible threats of

violence” such that he was ineligible for a zero-point offender

reduction to his offense level under § 4C1.1(a)(3). 10

C. Assumed Error Harmlessness

Even if the district court had erred by failing to reduce

Ovadia’s offense level by two levels based on the zero-point

offender reduction under § 4C1.1, we would not vacate Ovadia’s

sentence and remand for resentencing. That is because (1) the

district court stated, in effect, that it would have imposed a

thirty-month prison sentence regardless of its resolution of the

§ 4C1.1 issue; and (2) Ovadia has not shown his thirty-month

prison sentence is substantively unreasonable under the totality of

the circumstances here.

“Under our precedent, we need not review a sentencing

issue when (1) the district court states it would have imposed the

same sentence, even absent an alleged error, and (2) the sentence

10We do not consider Ovadia’s undeveloped argument—raised for the first

time in his Reply Brief—that the district court applied the wrong legal standard

when it determined whether Ovadia’s threats were credible by using a

reasonable person test. See Nat’l Mining Ass’n v. United Steel Workers, 985 F.3d

1309, 1326 n.15 (11th Cir. 2021) (“[W]e do not consider arguments fairly raised

for the first time in reply briefs.”). Even so, we note that Ovadia’s argument

on this point is dubious. As we have explained, whether a credible threat of

violence was made involves examining from an objective viewpoint whether

the threats were reasonably believable. The district court applied this objective

standard, finding “objectively, anyone under those circumstances would

believe that these threats of violence were credible.”

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is substantively reasonable.” United States v. Grushko, 50 F.4th 1, 18

(11th Cir. 2022) (citation modified). A district court’s choice to

make a so-called “Keene statement,” therefore, can trigger an

“assumed error harmlessness inquiry.” United States v. Keene, 470

F.3d 1347, 1349 (11th Cir. 2006). We undertake that assumed error

inquiry.

1. Keene Statement

Ovadia first argues the district court did not make a

sufficiently clear Keene statement. We disagree.

The district court did begin in an equivocal manner by

saying, “[E]ven if I had given the defendant that reduction, I think

I am pretty confident that I would end up back in the same place as

far as the 30-month sentence.” But the district court further

clarified that a thirty-month sentence would have been imposed

regardless of the § 4C1.1 issue by saying, “[H]aving considered all

the 3553(a) factors and the circumstances here, I just can’t imagine

a scenario where less than the 30 months is warranted but your

objections are noted.”

While not perfect, the district court’s Keene statement was

adequate because it (1) was made just after pronouncing the

sentence; and (2) indicated the district court would reach the same

sentence regardless of its resolution of the § 4C1.1 guideline issue.

See United States v. Delgado, 981 F.3d 889, 900 n.8 (11th Cir. 2020)

(noting for Keene statements that district courts should “make clear

at the time of pronouncing the sentence that it would reach the

same sentence regardless of the Guidelines range”).

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2. Substantive Reasonableness

Even if the Keene statement was adequate, Ovadia next

argues his thirty-month prison sentence was substantively

unreasonable under his lowered advisory guidelines range. If

Ovadia had received a two-level reduction to his offense level

under § 4C1.1, his total offense level would have been 15, rather

than 17. With a total offense level of 15 and a criminal history

category of I, Ovadia’s advisory guidelines range would have been

lowered to 18 to 24 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing

Table).

Determining the substantive reasonableness of a sentence

requires us to look at the “totality of the circumstances.” Grushko,

50 F.4th at 19 (citing Pugh, 515 F.3d at 1190). In imposing a

sentence, the district court must consider all the factors set forth in

18 U.S.C. § 3553(a), “but it may give greater weight to some factors

over others or even attach great weight to a single factor.” Id.

(citing United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.

2015)). 11 The defendant bears the burden to prove his sentence is

unreasonable. Id. at 18 (citations omitted).

11 The § 3553(a) factors include: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the sen-

tence to reflect the seriousness of the offense, promote respect for the law, and

provide just punishment for the offense; (3) the need for deterrence; (4) the

need to protect the public; (5) the need to provide the defendant with needed

education or vocational training or medical care; (6) the kinds of sentences

available; (7) the sentencing guidelines range; (8) pertinent policy statements

of the sentencing commission; (9) the need to avoid unwarranted sentencing

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While “the district court has discretion to impose a sentence

outside of the guidelines range, a major variance requires a more

significant justification than a minor one.” Id. at 20 (citations

omitted). “We will vacate a sentence 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.” Id.

(citations omitted). And we do not presume a sentence outside the

guidelines range is unreasonable. Id. (citation omitted).

Given the lowered guidelines range of 18 to 24 months, the

§ 3553(a) factors, and the totality of the circumstances, Ovadia still

has not shown his thirty-month prison sentence is substantively

unreasonable. We recognize that a thirty-month prison sentence is

a six-month upward variance from the top of the lowered

guidelines range. But in imposing that sentence, the district court

stated that it considered the PSI, statements of the parties, and the

§ 3553(a) factors. The district court had before it evidence that

(1) Ovadia sent emails that were rife with offensive slurs and

threatened to rape, torture, and kill his victims in graphic detail;

(2) both victims named in the indictment sought therapy due to

Ovadia’s threats; (3) Ovadia expressed no remorse and seemed to

begin to deny culpability for the threats, saying he was “hacked”;

(4) Ovadia had two pending criminal cases involving aggressive or

threatening conduct; and (5) Ovadia had four disciplinary sanctions

while in federal custody. Under these circumstances, we cannot say

disparities; and (10) the need to provide restitution to victims. 18 U.S.C.

§ 3553(a).

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a decision to vary upwards by six months from the lowered

guidelines range was substantively unreasonable. Lastly, we note

that Ovadia’s thirty-month prison sentence is only half of the

sixty-month statutory maximum for a cyber harassment

conviction, another indication his sentence is reasonable. See

Grushko, 50 F.4th at 20 (“[A] sentence imposed below the statutory

maximum penalty is an indicator of a reasonable sentence.”); 18

U.S.C. § 2261(b)(5) (providing statutory maximum).

Ultimately, even if the district court erred by not reducing

Ovadia’s offense level pursuant to § 4C1.1, any error was harmless

because the district court would have still sentenced Ovadia to

thirty-months imprisonment, which is a substantively reasonable

sentence under Ovadia’s lowered advisory guidelines range.

V. CONCLUSION

For the foregoing reasons, we AFFIRM Ovadia’s

thirty-month sentence of imprisonment, followed by three years of

supervised release.

AFFIRMED.