# United States v. Damon Amedeo

> Court of Appeals for the Eleventh Circuit · May 24, 2007 · 487 F.3d 823

URL: https://www.frixlaw.com/law-library/cases/77676

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Damon AMEDEO, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 24, 2007
- **Citations:** 487 F.3d 823
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Black, Barkett, Kravitch
- **Cited by:** 599 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/77676

## How later opinions describe it (automated extraction)

- explaining that the district court’s failure to discuss the defendant’s mitigating evidence does not “mean[] that the court USCA11 Case: 22-11939 Document: 31-1 Date Filed: 06/27/2023 Page: 25 of 27 22-11939 Opinion of the Court 25 erroneously ‘ignored’ or failed to consider t…
- stating that, although the district court did not specifically mention mitigating evidence, “we cannot say that the court’s failure to discuss this ‘mitigating 1 evidence means that the court erroneously ‘ignored’ or failed to consider this evidence in determining [the defenda…
- stating that the defendant could point to no authority that deemed it impermissible for the sentencing court to consider conduct already considered in calculating the guidelines range and affirming the court’s use of such conduct to impose an upward variance pursuant to § 3553(a)
- reasoning that even though the district court’s sentencing order did not mention arguably mitigating evidence, the reviewing court could not say that the district court’s failure to discuss that evidence meant that the court erroneously ignored or failed to consider it
- stating that the weight given to a particular sentencing factor “is a matter committed to the sound discretion of the district court” and that the district court need not address explicitly each section 3553(a) factor or all miti- gating evidence

## Opinion text

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 24, 2007
No. 05-11806 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-80050-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMON AMEDEO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 24, 2007)

Before BLACK, BARKETT, and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Damon Amedeo appeals his 120-month sentence following a guilty plea to

one count of cocaine distribution on the grounds that (1) the district court should
have recused itself from his resentencing; (2) the sentence violated the mandate

rule; (3) the sentence violated 18 U.S.C. § 3742(g); (4) his due process rights were

violated by the retroactive application of Booker; and (5) the sentence was

unreasonable. For the reasons that follow, we affirm.

I. Background

On February 7, 2002, Amedeo was arrested in connection with the death of

Douglas Rozelle III.1 He was later charged in a nine-count superceding indictment

with one count each of unlawful drug use while in possession of a firearm, 18

U.S.C. § 922(g)(3); distribution of cocaine to a minor, 18 U.S.C. § 859; cocaine

distribution, 21 U.S.C. § 841; possession with intent to distribute marijuana, 21

U.S.C. § 841; and five counts of distribution of marijuana to a minor, 21 U.S.C.

§ 859. Pursuant to a plea agreement, Amedeo pleaded guilty to the count of

distributing cocaine to a minor, 21 U.S.C. § 859(a), and the Government dropped

the remaining charges.

After the sentencing hearing on February 13, 2003, the district court

sentenced Amedeo to 216 months’ imprisonment and eight years of supervised

release, based on an offense level of 37; a criminal history category of I; and

enhancements for vulnerable victim, U.S.S.G. § 3A1.1, abuse of trust, § 3B1.3, and

1
The underlying facts are set forth in our prior opinion in United States v. Amedeo, 370
F.3d 1305 (11th Cir. 2004) (“Amedeo I”), and we do not recount them here. See id. at 1308-11.

2
obstruction of justice, § 3C1.1. The sentence also included upward departures on

the grounds that: (1) Amedeo committed the offense to facilitate a sexual assault

on Rozelle, § 5K2.9; (2) Amedeo’s offense resulted in Rozelle’s death, § 5K2.1;

(3) Amedeo engaged in extreme conduct by failing to seek medical help for

Rozelle and by having unprotected sex with Rozelle despite being infected with

hepatitis C, § 5K2.8; and (4) Amedeo distributed drugs to multiple minors,

§ 5K2.0. The district court denied Amedeo’s request for a reduction based on

acceptance of responsibility pursuant to § 3E1.1(a).

Amedeo appealed the sentence to this court, and on May 28, 2004, this court

affirmed in part, vacated in part, and remanded for further proceedings. United

States v. Amedeo, 370 F.3d 1305, 1325 (11th Cir. 2004) (“Amedeo I”).

Specifically, this court affirmed all of the enhancements and the denial of the

acceptance-of-responsibility reduction. Id. at 1316-21. This court vacated the

upward departures under §§ 5K2.0, 5K2.1, 5K2.8,2 and 5K2.9, on the grounds that:

Amedeo’s November 2001 sexual assault on Rozelle, his drug use with minors

other than Rozelle, his January 2002 sexual encounters with Rozelle, and Rozelle’s

death were beyond the scope of “relevant conduct” for purposes of § 1B1.3, as

2
This court vacated the § 5K2.8 departure (extreme conduct) based on Amedeo’s
engaging in unprotected sex with Rozelle despite being infected with hepatitis C. But this court
affirmed the alternative ground for this departure—Amedeo’s failure to call 911 after Rozelle
was unconscious—because Amedeo failed to appeal it. Amedeo I, 370 F.3d at 1324 n.18.

3
these incidents did not constitute a “common scheme or plan” in connection with

Amedeo’s offense of conviction. Amedeo I, 370 F.3d at 1313-24.

On August 2, 2004, the district court issued a Burns3 notice indicating its

intention to consider on remand a departure under U.S.S.G. § 4A1.3

(underrepresentation of criminal history). Anticipating a forthcoming decision by

the Supreme Court addressing the applicability of Blakely 4 to the Sentencing

Guidelines, Amedeo filed a motion for a continuance, which the district court

granted.

On January 12, 2005, the Supreme Court issued its opinion in United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held, inter

alia, that the Sentencing Guidelines could not be imposed in a mandatory manner,

but that sentencing courts were required to consider the Guidelines along with

other statutorily relevant factors. Id. at 258-67, 125 S.Ct. at 764-69. The

Booker Court also held that this remedial holding was to be applied to cases

pending on direct review. Id. at 268, 125 S.Ct. at 769. On February 1, 2005, the

district court issued an amended notice of its intent to consider a departure under

§ 4A1.3 based on Amedeo’s sexual contact with Rozelle. Prior to the resentencing

3
Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).
4
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

4
hearing, Amedeo filed a motion requesting that the district judge recuse himself,

which the court denied.

At the resentencing hearing on March 11, 2005, the district court calculated

the Guidelines range at 37-46 months, decided not to impose an upward departure,

and found that the Guidelines range did not reflect the seriousness of the crime in

light of 18 U.S.C. § 3553(a). The court held that Booker constituted an exception

to the mandate rule, as it was an intervening “radical change in the law governing

sentencing guideline applications” that required the court to apply the Guidelines

in an advisory manner by imposing a reasonable sentence in light of § 3553(a).

The court then imposed a sentence of 120 months’ imprisonment.

II. Discussion

A. Recusal from Resentencing

On appeal, Amedeo argues that the district court erred in failing to recuse

itself for his resentencing. We review a judge’s decision not to recuse for an abuse

of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004).

Section 455 of Title 28 of the U.S. Code creates two conditions for recusal.

United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003). First, § 455(a)

provides that a judge shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Under § 455(a),

5
recusal is appropriate only if “an objective, disinterested, lay observer fully

informed of the facts underlying the grounds on which recusal was sought would

entertain a significant doubt about the judge’s impartiality.” Patti, 337 F.3d at

1321 (citation omitted). And “judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555,

113 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (citation omitted).

Second, § 455(b) provides that a judge also shall disqualify himself where,

inter alia, he actually “has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the proceeding.” 28

U.S.C. § 455(b)(1) (emphasis added). The bias or prejudice “must be personal and

extrajudicial; it must derive from something other than that which the judge

learned by participating in the case.” McWhorter v. City of Birmingham, 906 F.2d

674, 678 (11th Cir. 1990) (citation omitted). “[O]pinions held by judges as a result

of what they learned in earlier proceedings” do not constitute bias or prejudice.

Liteky, 510 U.S. at 551, 114 S.Ct. at 1155. Thus, “[i]t has long been regarded as

normal and proper for a judge to sit in the same case upon remand, and to sit in

successive trials involving the same defendant.” Id.

Here, Amedeo asserts both that there was an appearance of impartiality and

that there was actual bias on the part of the district court. He argues that a fully-

6
informed lay observer might reasonably conclude that the district court intended to

sentence him above his Guidelines range without regard to what was authorized by

law, as evidenced by, inter alia, (1) the public nature of the initial sentencing,

(2) this court’s rejection of two of the district court’s upward departures, (3) the

district court’s consideration on remand of new upward departures, and (4) the

district court’s use of § 3553(a) to impose an upward variance on the same factual

bases it had used to support the upward departures this court had rejected in

Amedeo I. He also contends that the district court’s use of § 3553(a) at

resentencing was a pretextual means of sentencing him above the Guidelines range,

thereby demonstrating the district court’s bias. We disagree.

First, regarding Amedeo’s initial sentencing, this court observed that “[i]t is

clear the district court conducted the [original] sentencing proceedings with the

utmost care and sensitivity to the parties, and grappled rigorously and

conscientiously with the challenging issues presented.” Amedeo I, 370 F.3d at

1325. And although both Amedeo’s initial sentence and this court’s overturning of

that sentence were “public events,” nearly all federal judicial proceedings are

public and most district courts have some of their rulings overturned on appeal.

The fact that the district court on remand continued to view Amedeo’s conduct as

sufficiently serious to warrant a sentence above the Guidelines range was not

7
improper. Indeed, “[i]f the judge did not form judgments of the actors in those

court-house dramas called trials, he could never render decisions.” Liteky, 510

U.S. at 551, 114 S.Ct. at 1155. Again, “opinions held by judges as a result of what

they learned in earlier proceedings” do not constitute bias or prejudice. Id.

Nothing in the record demonstrates that the district court had developed a personal

or extrajudicial bias against Amedeo (pursuant to § 455(b)(1)), see McWhorter,

906 F.2d at 678, or that a fully-informed lay observer would entertain a significant

doubt about the district judge’s impartiality (pursuant to § 455(a)), see Patti, 337

F.3d at 1321. Accordingly, we conclude that the district judge’s decision not to

recuse himself was not an abuse of discretion.

B. The Mandate Rule

Amedeo next argues that the district court’s imposition of a sentence above

the Guidelines range violated this court’s mandate in Amedeo I because the district

court considered conduct beyond the offense of conviction, namely Amedeo’s

November 2001 sexual assault on Rozelle, his drug use with minors other than

Rozelle, his January 2002 sexual encounters with Rozelle, and Rozelle’s death.

Whether the district court violated our mandate in Amedeo I is a question of law

that we review de novo. United States v. Tamayo, 80 F.3d 1514, 1518 (11th Cir.

1996).

8
“The law of the case doctrine, self-imposed by the courts, operates to create

efficiency, finality[,] and obedience within the judicial system” so that “[a]n

appellate decision binds all subsequent proceedings in the same case.” Id. at 1520

(citation omitted). “The mandate rule is simply an application of the law of the

case doctrine to a specific set of facts.” Id. (citation omitted). Accordingly, when

acting under an appellate court’s mandate, a district court “cannot vary it, or

examine it for any other purpose than execution; or give any other or further relief;

or review it, even for apparent error, upon a matter decided on appeal; or

intermeddle with it, further than to settle so much as has been remanded.” Id.

(quoting Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1510-11 (11th Cir.

1987)) (internal quotation marks omitted). The law of the case doctrine (and, by

implication, the mandate rule) applies to findings made under the Sentencing

Guidelines. See, e.g., United States v. Bordon, 421 F.3d 1202, 1207-08 (11th Cir.

2005) (declining to consider a challenge to a Guidelines calculation that was

previously reviewed and affirmed by this court).

This court has recognized three exceptions to the mandate rule: “(1) a

subsequent trial produces substantially different evidence, (2) controlling authority

has since made a contrary decision of law applicable to that issue, or (3) the prior

[appellate] decision was clearly erroneous and would work manifest injustice.”

9
United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).

On appeal, Amedeo contends that this court’s Amedeo I mandate not only

struck the upward departures, but also prohibited the district court from

considering the factual bases for these departures, namely, Amedeo’s drug use with

Rozelle and other minors, his sexual contact with Rozelle, and Rozelle’s death. He

also argues that the intervening decision in Booker does not qualify as a change in

controlling authority sufficient to allow this court’s mandate in Amedeo I to be

exceeded on remand because Booker “was not a change in controlling law which

made a contrary result applicable,” and this court’s original decision in Amedeo I

was not clearly erroneous.

We conclude that the second exception to the mandate rule applies in this

case, as Booker constituted an intervening change in the law of sentencing that

made a contrary decision of law applicable. We agree that imposing a Guidelines

departure based on acts that this court deemed beyond the scope of relevant

conduct under § 1B1.3 would have violated the Amedeo I mandate, as, indeed, the

official title of § 1B1.3 is “Relevant Conduct (Factors that Determine the Guideline

Range).” U.S.S.G. § 1B1.3 (emphasis added). But after Booker, which was

decided after Amedeo I, the district court on remand had the discretion to impose a

variance—a sentence outside the Guidelines range—based on the factors set forth

10
in § 3553(a), including the defendant’s history and characteristics, the Guidelines

range, affording adequate deterrence, and protecting the public from further crimes

of the defendant. United States v. McVay, 447 F.3d 1348, 1353 (11th Cir. 2006).

On remand, the district court did not impose an upward departure, rather, the

district court applied Booker, an intervening change in the law that made the

Guidelines advisory, and imposed a sentence based on its consideration of the

factors set forth in § 3553(a). Thus, we conclude that our “relevant conduct”

mandate in Amedeo I did not apply to the district court’s imposition of a variance

based on § 3553(a), and therefore, the district court did not violate our mandate.

C. 18 U.S.C. § 3742(g)

Amedeo also argues that the district court violated 18 U.S.C. § 3742(g)(2)

by imposing an above-the-Guidelines sentence on bases not considered in his

original sentence. We review de novo the district court’s interpretation and

application of the Sentencing Guidelines. United States v. Barakat, 130 F.3d 1448,

1452 (11th Cir. 1997).

Section 3742(g)(2) provides that, at resentencing,

[a district court] shall not impose a sentence outside the applicable
guidelines range except upon a ground that—(A) was specifically and
affirmatively included in the written statement of reasons required by
section 3553(c) in connection with the previous sentencing of the
defendant prior to the appeal; and (B) was held by the court of
appeals, in remanding the case, to be a permissible ground of

11
departure.

18 U.S.C. § 3742(g)(2). Amedeo’s original sentencing hearing was held on

February 13, 2003, and judgment was entered on March 5, 2003. Sections

3742(g)(2) and 3553(c) were enacted on April 30, 2003. See Prosecutorial

Remedies and Other Tools to End the Exploitation of Children Today Act of 2000,

(PROTECT Act), Pub. L. No. 108-21, Title IV, § 401, 117 Stat. 650, 669-71.

This court has not addressed whether and how § 3742(g)(2) applies to cases

where the original sentence was imposed before the current version of § 3742(g)(2)

was enacted. But circuits that have addressed this issue have held that

§ 3742(g)(2)(A)’s requirement regarding a written statement of reasons is

inapplicable in these circumstances. See United States v. Cole, 357 F.3d 780, 786

(8th Cir. 2004); United States v. Derbes, 369 F.3d 579, 583-84 (1st Cir. 2004);

United States v. Kostakis, 364 F.3d 45, 53 (2d Cir. 2004). For instance, in

Kostakis, the Second Circuit reasoned that “because such statutory limitations did

not exist at the time of” the defendant’s initial sentencing, “neither [the defendant]

nor the sentencing court were aware that these grounds could be precluded on

remand.” Kostakis, 364 F.3d at 53.

Regarding the applicability of § 3742(g)(2), we join our sister circuits and

hold that this provision does not apply to sentences imposed before § 3742(g)(2)

12
was enacted. We therefore conclude that Amedeo’s sentence on remand did not

violate § 3742(g)(2).

D. Ex Post Facto Application of Booker at Resentencing

Amedeo also argues that the district court’s ex post facto application of

Booker to his detriment at resentencing violated his due process rights. “We

review de novo a defendant’s claim that his sentence violated ex post facto

principles.” United States v. Thomas, 446 F.3d 1348, 1350 (11th Cir. 2006).

As stated above, in Booker, the Supreme Court held that its remedial

holding, making the Guidelines advisory, was to be applied to cases pending on

direct review. Booker, 543 U.S. at 268, 125 S.Ct. at 769. In United States v.

Duncan, 400 F.3d 1297, 1306 (11th Cir.), cert. denied, 126 S.Ct. 432 (2005), this

court rejected the defendant’s argument that the retroactive application of Booker

to his case would increase his sentence beyond that authorized by the jury’s

verdict, thereby operating as an ex post facto law in violation of his due process

rights. Duncan, 400 F.3d at 1307. We reasoned that although mandatory

Guidelines were in place at the time of the defendant’s criminal conduct, “the law

of this Circuit then recognized the U.S. Code as the source of the maximum

sentence.” Id. at 1308 (citations omitted). As such, this court held that the

defendant “had sufficient warning to satisfy” due process concerns. Id.

13
Here, Amedeo contends that Duncan is not controlling because he preserved

his objection below, entitling him to de novo review, whereas in Duncan, the issue

was considered on plain error review. He also argues that this court’s Amedeo I

mandate left the district court with an exact Guidelines calculation that it should

have imposed and that Booker was applied to his detriment. He further argues that

because he pleaded guilty, he did not have any realistic notice or expectation that

he could be sentenced to 10 years. We are unpersuaded.

First, Amedeo’s attempt to distinguish Duncan as a “plain error case” is

misplaced, as it relies on a portion of the Duncan opinion regarding the sentencing

court’s constitutional error of applying the Guidelines in a mandatory fashion

based on judicial factfinding. See Duncan, 400 F.3d at 1299, 1304. The portion of

the opinion rejecting the defendant’s ex post facto claim held that there was no ex

post facto/due process violation, and thus, no error in this regard. Id. at 1307-08.

Moreover, we have applied both the reasoning and holding of Duncan in cases

where the fair warning/due process issue was not before us on plain error review.

See, e.g., Thomas, 446 F.3d at 1354-55. Next, as discussed above, Booker was an

intervening change in the law making mandatory application of the Guidelines

unlawful. Finally, the terms of Amedeo’s plea deal made clear that the district

court had the authority to impose a sentence up to the statutory maximum of 40

14
years. Thus, Amedeo had sufficient warning to satisfy ex post facto and due

process concerns. See Duncan, 400 F.3d at 1308. We therefore conclude that the

retroactive application of Booker to Amedeo’s case did not violate his rights.

E. Reasonableness of the Sentence

Finally, Amedeo argues that his sentence of 120 months’ imprisonment was

unreasonable. We review the sentence imposed for reasonableness. United States

v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006).

After correctly calculating the advisory Guidelines range, “[a] district court

may impose a sentence that is either more severe or lenient than the sentence [this

court] would have imposed, but that sentence must still be reasonable.” United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Our “[r]eview for

reasonableness is deferential,” and “the party who challenges the sentence bears

the burden of establishing that the sentence is unreasonable in the light of both

[the] record and the factors in section 3553(a).” Id. “The weight to be accorded

any given § 3553(a) factor is a matter committed to the sound discretion of the

district court[,]” and “[w]e will not substitute our judgment in weighing the

relevant factors.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006)

(citations omitted). “Although sentencing courts must be guided by these factors,

nothing in Booker or elsewhere requires the district court to state on the record that

15
it has explicitly considered each of the § 3553(a) factors or to discuss each of the

§ 3553(a) factors.” Thomas, 446 F.3d at 1357 (citations omitted) (emphasis in

original). “Rather, an acknowledgment by the district judge that he or she has

considered the § 3553(a) factors will suffice.” United States v. Turner, 474 F.3d

1265, 1281 (11th Cir. 2007). Nonetheless, “[t]he reasons given by the district

court for its selection of a sentence are important to assessing reasonableness.”

Williams, 456 F.3d at 1361. “A sentence based on an improper factor fails to

achieve the purposes of § 3553(a) and may be unreasonable, regardless of length.”

Id.

Regarding the factors that may be considered in fashioning a reasonable

sentence, 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.

And after Booker, “courts may still consider relevant facts concerning a

defendant’s background, character, and conduct” when imposing a reasonable

sentence. United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (internal

quotation omitted).

Amedeo contends that his sentence is unreasonable because (1) it was

16
substantially greater than necessary to meet the goals of punishment set forth in

§ 3553(a); (2) the district court improperly ignored mitigating factors such as his

first-offender status, his voluntary surrender of his law license, his incident-free

incarceration history, and his history of public service; and (3) the district court

improperly relied on factual findings that had either been “built into” the

enhancements sustained on appeal, or reversed as inappropriate sentencing

considerations. We disagree.

Here, the district court correctly calculated the Guidelines range, and the

court’s statements during the resentencing hearing and in its resentencing order

show that it considered the factors set forth in § 3553(a). For example, during the

hearing, the court emphasized its “responsibility to impose no greater sentence than

is required by the factors set forth in the guidelines and in Title 18, Section

3553(a).” And in the sentencing order, the court stated that it had considered “the

particular historical circumstances and characteristics of the defendant[,

§ 3553(a)(1),]” that it imposed a sentence to “satisfy the dictates of 18 U.S.C.

§ 3553(a)[,]” and that it found “[Amedeo’s] sentence to be reasonable and

necessary to protect the public from further crimes of the defendant[,

§ 3553(a)(2)(C)], to reflect the seriousness of the offense[, § 3553(a)(2)(A)], to

afford an adequate level of deterrence to criminal conduct[, § 3553(a)(2)(B)], and

17
to promote respect for the law[, § 3553(a)(2)(A)].” As stated above, in imposing a

reasonable sentence, the district court need only “acknowledge” that it “considered

the § 3553(a) factors[,]” Turner, 474 F.3d at 1281, and need not discuss each of

these factors in either the sentencing hearing or in the sentencing order, see

Thomas, 446 F.3d at 1357. Thus, although the district court’s sentencing order

made no mention of evidence that arguably mitigated in Amedeo’s favor under

§ 3553(a), we cannot say that the court’s failure to discuss this “mitigating”

evidence means that the court erroneously “ignored” or failed to consider this

evidence in determining Amedeo’s sentence. More important, Amedeo has not

persuaded us that the resulting sentence was unreasonable in light of the

particularly egregious circumstances of this case and the limited mitigating value

of the evidence he presented. Additionally, as discussed above, we conclude that

this court’s mandate in Amedeo I did not prohibit the district court from

considering conduct such as Amedeo’s drug use with other minors, his sexual

contact with Rozelle, and Rozelle’s death in imposing a variance based on the

§ 3553(a) factors. And as for Amedeo’s argument that certain aspects of his

conduct (such as the abuse of the attorney-client relationship) had already been

considered in imposing an enhancement under U.S.S.G. § 3B1.3, Amedeo points to

no authority that deems it impermissible for the district court to also have

18
considered this conduct in imposing a variance in light of the factors set forth in

§ 3553(a). In our view, based on the extraordinary circumstances of this case, it

was reasonable for the district court to rely on certain aspects of Amedeo’s

conduct, particularly his abuse of the attorney-client relationship, that it had

already considered in imposing an enhancement. We therefore conclude that

Amedeo’s sentence was reasonable.

III. Conclusion

For the foregoing reasons, we AFFIRM.

19
BARKETT, Circuit Judge, specially concurring:

I agree that the sentence in this case is reasonable under the especially

egregious facts of this case. I do not agree with Amedeo that the district court

relied on Rozelle’s death in fashioning Amedeo’s sentence.1 Had the court relied

on the death, I would have found this to be an impermissible factor.2

Moreover, although the district court’s sentencing order made no mention of

evidence that mitigated in favor of Amedeo with respect to the § 3553(a) factors

(namely evidence pertaining to his history and characteristics), the record clearly

shows that the district judge solicited input from defense counsel and heard

extensive argument on the mitigating evidence. The record does not support

Amedeo’s claim that the district court did not consider mitigating evidence or that

the resulting sentence was unreasonable in light of the particularly egregious

circumstances of this case and the limited mitigating value of the evidence he

1
The district court’s order makes no mention of the death as having been among the
factors upon which it relied to impose an above-Guidelines sentence on remand. Although the
judge acknowledged the fact that Rozelle had died, he expressly recognized that the death was
not a part of the offense of conviction, as we held in Amedeo I. 370 F.3d at 1323 (11th Cir.
2006). Moreover, when the judge discussed the events that he did consider in fashioning the
sentence, he made no mention of Rozelle’s death.
2
In Amedeo I, we observed that, while it was possible that Amedeo could be separately
charged with Rozelle’s death, his offense of conviction did not encompass Amedeo’s death for
sentencing purposes. Id. On remand, the district judge did not make any finding that Amedeo
was responsible for Rozelle’s death, even though he of course acknowledged the tragedy of the
death at the sentencing hearing. Therefore, I do not believe that Rozelle’s death would have
been a permissible factor under § 3553(a) for distributing cocaine to a minor.

20
presented.

While we will give due deference to the district court’s weighing of the

relevant factors under § 3553(a), a discussion by the district court of the factors

being weighed and considered significantly aids appellate review as “[t]he reasons

given by the district court for its selection of a sentence are important to assessing

reasonableness.” United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006).

I find that, in this case, the district court did adequately set forth the factors

weighed and considered.

Therefore, I concur.

21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/77676. Public record. Not legal advice.