United States v. Tavarra Japree Gissendanner

USCA11 Case: 21-11254 Date Filed: 09/28/2022 Page: 1 of 20

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11254

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TAVARA JAPREE GISSENDANNER,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:19-cr-00461-LSC-JHE-1

____________________

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2 Opinion of the Court 21-11254

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Tavara Gissendanner appeals his conviction and 480-month

sentence for conspiracy to possess with intent to distribute a

mixture containing methamphetamine and heroin. He argues that

the district court erred in finding that he did not make a prima facie

case that the government discriminatorily struck black jurors in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). He also argues

that his sentence was procedurally unreasonable because the

district court failed to adequately explain the sentence and failed to

consider his mitigation arguments. After review, we affirm.

I. Background

Gissendanner, along with several other individuals, was

charged in a superseding indictment with one count of conspiring

to possess with intent to distribute a mixture and substance

containing 500 grams or more of methamphetamine and a mixture

and substance containing one kilogram or more of heroin, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Importantly,

Gissendanner was incarcerated on other convictions at the time of

the conspiracy and arranged outside drug transactions and

shipments from inside the prison. Gissendanner pleaded not

guilty, and his case was set for a joint trial with codefendant Isiah

Thomas.

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(a) Voir Dire

Jury selection took place in August 2020. At the start of the

proceeding, Gissendanner moved the district court to treat any

objection made by either defendant as “made by both defendants

with equal applicability.” The court agreed but explained that

objections that were specific to one particular defendant would not

be attributed to the other defendant.

Before the venire was brought into the courtroom, the

district court noted the racial composition of the jury pool: 30% of

the potential jurors were black, 66% were white, 2% were Asian,

and 2% were unknown. Of this pool of potential jurors, a smaller

subset was randomly selected (by computer) as the venire to

participate in voir dire. Nine black jurors were in the subset of

jurors selected for the venire.

The district court requested that each juror provide personal

background information. As relevant to the issues on appeal, Juror

28, a black woman, stated that she was a probation officer for the

Jefferson County Family Court. She explained that she also

volunteered for the Alabama Justice Initiative, an organization that

advocates for prison reform. She added that she had a law degree

and a master’s degree in criminal justice. She confirmed that she

knew several members of the defense team “because of [her]

profession.” She also confirmed that her mother was a recovering

drug addict. The defense asked the venire if anyone was familiar

with Bullock Correctional Facility in Alabama, and she explained

that she knew of the facility because of her prison reform work.

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She stated that she had never been to the facility but that she had

received “numerous videos” about violent incidents taking place

inside the prison.

The district court explained to the venire that it anticipated

that there might be law enforcement witnesses who would testify

in the case, and it asked the venire if there was anyone who

“because of things you have heard, [or] experiences you have

had . . . [would] either believe automatically or disbelieve

[automatically]” a law enforcement witness’s testimony. The

court clarified that it needed to know whether just because a

witness was in law enforcement, “you are either going to believe

automatically or automatically disbelieve [the witness] without

applying the credibility standard.” In response, Juror 10 stated that

“as a black man living in the United States at this time,” he did not

know if he could give law enforcement “the benefit of the doubt.”

Later, the prosecutor, inquired of the venire whether “after

watching recent events that have occurred on television, has

anyone’s opinion been changed, whether positively or negatively,

as it relates to law enforcement? Has anyone had their opinion

changed over the past six months to a year as it relates to law

enforcement?” And Juror 10 responded that his “opinion was bad

and it just got worse[].”

During individual voir dire, the district court asked Juror 10

about his prior statement that he automatically would not believe

a law enforcement officer’s testimony, and Juror 10 confirmed he

would “not based on word alone,” and that he would need to “have

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21-11254 Opinion of the Court 5

body cam or something more than just word alone.” The district

court explained that he would “have to apply the same standards

of credibility to [a law enforcement] witness as [he] would any

other witness” and the court needed to know if Juror 10 could do

that. Juror 10 responded “I don’t know. I don’t know, your

Honor.” The following colloquy then occurred:

[Defense counsel]: [Juror 10], correct me if I am

misquoting you, but I believe you said during the

open session that you couldn’t give law enforcement

the benefit of the doubt. Is that how you put it?

[Juror 10]: Yes.

[Defense counsel]: Okay. So, . . . if you are told

you’re not supposed to give anybody the benefit of

the doubt and you are supposed to judge everyone

fairly, as the judge has explained, do you feel you

could do that, or is it just simply a matter of you can’t

give them the [benefit of] the doubt but you will hear

them out just like everybody else?

[Juror 10]: Basically[,] what I’m saying, I can’t give

them the benefit of the doubt just because they wear

the uniform. Not—

[Defense counsel]: Are you saying you’re not going

to give them extra credit because they’re law

enforcement?

[Juror 10]: Correct.

[Defense counsel]: But you will give them the same

credit as any other witness?

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[Juror 10]: I would do my best, yes.

[Defense counsel]: Okay.

The Court: I have to have it clearer than that.

Okay? . . . I need to either know you’re going to apply

the same standard of credibility or you’re not.

[Juror 10]: I will apply the same standard, your

Honor. Yes.

The Court: Being fair?

[Juror 10]: Yes.

Next, during individual voir dire, defense counsel

questioned Juror 28 about what she knew about the Bullock

Correctional Facility given her prior statement that she knew of

incidents at the facility from her prison reform work. She explained

she was aware that there was a lot of violence at the facility, both

inmate-on-inmate and officer-on-inmate, but she confirmed that

she would be able to set her knowledge aside and be “neutral and

unattached to parties.” She also confirmed that knowing members

of the defense team from her work as a probation officer would not

interfere with her ability to “be neutral and detached.”

Following the individual voir dire, the government moved

to strike only one of the venire for cause—Juror 10. The defense

objected, arguing that, by the end of the colloquy, Juror 10 had

indicated that he would judge and treat all witnesses the same and

would be fair and neutral. The district court noted that it was “a

close call,” but based on Juror 10’s answers to the court’s questions,

it would not strike him for cause.

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The district court then proceeded to address the parties’

peremptory strikes. The court explained that the defendants had a

total of 10 strikes combined, and the government had six. The

defense and the government also each had one peremptory

alternate strike. The defendants struck two of the nine prospective

black jurors. The government moved to strike four of the

prospective black jurors, including Juror 10 and 28.

Gissendanner raised a Batson challenge to the striking of

Juror 10, arguing that there was no valid basis for his exclusion

because by the end of voir dire, he stated that he could be impartial.

The following colloquy occurred:

The Court: You have not made a prima facie

showing of Batson because, obviously, he said that he

dislikes police, that he doesn’t give them the benefit

of the doubt. At first he said I wouldn’t believe them

because they were law enforcement, and then he

changed. And I basically allowed him to stay. But

then I knew the government would strike him. I

didn’t give them a challenge for cause. I almost did.

[Defense counsel]: Understood, your Honor. And

the prima facie case I would make is that what the

court referenced at the end, his ending statements, as

we discussed earlier. But I understand the court’s

ruling.

[The Court]: Even his ending statements, [counsel],

were not sufficient. Because his ending statements,

what he said at the end was derogatory toward law

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enforcement. He said, I haven’t changed my opinion

in the last, however many months, six months or

whatever one of y’all asked about.

And, I mean, it was like pulling teeth for y’all to

rehabilitate him. I think [you were] able to finally

rehabilitate him sufficiently to keep him from being

struck for cause.

But he absolutely, there was race neutral reasons,

several of them to strike him.

The district court explained that, unless the defense demonstrated

a prima facie case under Batson, it did not need to ask the

government to provide a race neutral reason for its strike.

Gissendanner’s codefendant raised a Batson challenge to the

striking of Juror 28, arguing that because the government had used

four of its six peremptory strikes against black jurors, there was a

“disparity” on the jury with regard to the proportion of black jurors

to other races. 1 Counsel requested that given the disparities, “the

venire and the remaining panel be tossed and we start over so we

can get a jury that is more representative of the community.”

Without asking the government for an explanation, the district

1 Defense counsel asserted in the district court that as a result of the

government’s strikes, there was only 1 black juror left, but the record confirms

that statement is incorrect. There were nine black jurors in the venire, the

defense struck two and the government struck four, which left three black

jurors in the venire that were ultimately seated on the jury. Indeed,

Gissendanner agrees in the initial appellate brief that two black jurors were

seated on the jury and one served as an alternate.

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court denied the challenge, noting that Juror 28 did volunteer

prison reform work and had indicated she was aware of “awful

stuff” happening at the prison facility.2 There were three black

jurors seated on the final jury, one of which served as an alternate.

At trial, the jury found Gissendanner and his codefendant

guilty as charged. The evidence showed that, while Gissendanner

was an inmate at Bullock Correctional Facility in Alabama, he

organized and facilitated drug transactions outside the prison.

(b) Sentencing Hearing

Before the sentencing hearing, Gissendanner filed a

sentencing memorandum setting forth various mitigating

circumstances, including that (A) he was 37 years old and faced a

statutory minimum sentence of 300 months’ imprisonment, which

meant that he would be in his 60s upon release and much less likely

to reoffend; and (B) he suffered from several mental health issues,

and he had a childhood characterized by abuse and neglect.

At sentencing, the district court concluded that

Gissendanner qualified as a career-offender based on his criminal

history and that the resulting guidelines range was 360 months to

life imprisonment. Gissendanner requested a sentence of 360

months’ imprisonment and reiterated his mitigation arguments

2 Additionally, a Batson challenge was raised to the striking of Juror 5. And

although Gissendanner discusses the striking of Juror 5 in his brief, he

affirmatively states that he is not appealing the denial of the Batson challenge

as to that juror.

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from the sentencing memorandum. The government asked the

court to consider “a mid to high end sentence up to and including

life,” which it argued was appropriate to protect the community

from Gissendanner’s future crimes, to reflect the seriousness of the

offense, and in light of Gissendanner’s lengthy criminal history3

and personal characteristics.

Gissendanner then made a statement explaining that “a lot

of that stuff [the government] said is on paper but it’s false.” He

averred that he had changed, and he “continue[s] to try to change

to be better.” He also maintained his innocence in the present case.

The district court sentenced Gissendanner to 480 months’

imprisonment followed by 20 years of supervised release.

Addressing Gissendanner, the district court explained that:

this is not a low end of the guideline range sentence

case. It’s just not. You were running this operation;

you were the leader of it. The fact that you sit there

and say with a straight face that you are not guilty and

all this stuff is false about you just demonstrates that

you have no remorse for what you have done and,

left to your own devices, you would continue to do

it.

3 The government noted that even without the career-offender enhancement,

Gissendanner would have the highest criminal history category of VI due to

his lengthy criminal history. Gissendanner’s presentence investigation report

documented 10 convictions dating back to 1999.

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The district court noted that the sentence imposed “strikes a good

balance when I consider the nature and circumstances of the

offense that you are convicted of as well as your characteristics and

the need to protect the public from your crimes as well.”

Gissendanner objected to the sentence “for the reasons stated

earlier.” This appeal followed.

II. Discussion

A. Batson Claim

Gissendanner argues that the district court misapplied

Batson and imposed an erroneously high standard for establishing

a prima facie Batson claim with regard to the striking of Jurors 10

and 28. He maintains that a prima facie Batson claim was

established due to the government’s pattern of striking almost half

the black jurors in the venire after it asked voir dire questions—and

elicited answers to those questions—that were “tinged by race.”

He argues that the district court failed to follow the proper three-

step inquiry for Batson challenges with regard to the striking of

Jurors 10 and 28 and erroneously proffered its own race-neutral

reasons for the strike without asking the government for its actual

reasons. Accordingly, he asserts that the case must be remanded

for further Batson proceedings and, if necessary, a new trial.

“The Supreme Court in Batson established the now-familiar

three-part inquiry for evaluating whether a peremptory strike was

motivated by racial or ethnic discrimination.” United States v.

Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005) (citing Batson,

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476 U.S. at 79). First, “the district court must determine whether

the party challenging the peremptory strikes has established a

prima facie case of discrimination by establishing facts sufficient to

support an inference of racial discrimination.” Id. (quotations

omitted). If the challenger has established a prima facie case, “the

burden then shifts at step two to the striker to articulate a race-

neutral explanation for the challenged strike.” Id. Finally, at step

three, the district court must determine whether the striker’s

“stated reasons were the actual reasons or instead were a pretext

for discrimination.” Flowers v. Mississippi, __ U.S. __, 139 S. Ct.

2228, 2241 (2019). Importantly, “the ultimate burden of persuasion

rests with, and never shifts from, the opponent of the strike.”

Ochoa-Vasquez, 428 F.3d at 1038 (quotations omitted).

“We review the district court’s resolution of a Batson

challenge under the clearly erroneous standard.” 4 Cent. Ala. Fair

Hous. Ctr. v. Lowder Realty, 236 F.3d 629, 635 (11th Cir. 2000).

“As part of that review, we give great deference to the district

court’s finding as to the existence of a prima facie case.” Id.

(internal quotation marks omitted); see also Ochoa-Vasquez, 428

4 The government asserts that the Batson challenge to the striking of Juror 28

was raised specifically on behalf of codefendant Thomas only, and we should

review Gissendanner’s Batson challenge as to Juror 28 for plain error only. We

disagree. As noted previously, at the beginning of the proceedings, the defense

requested that objections made by either defendant be treated as an objection

by both, and the district court agreed. Accordingly, Gissendanner’s Batson

challenge to Juror 28 was preserved.

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F.3d at 1039 (explaining that a district court’s findings as to whether

a prima facie case of discrimination has been established are

entitled to “great deference” and “[d]e novo review is

inappropriate.” (quotations omitted)).

“[T]he establishment of a prima facie case is an absolute

precondition to further inquiry into the motivation behind the

challenged strike.” Ochoa-Vasquez, 428 F.3d at 1038 (quotations

omitted); United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995)

(“No party challenging the . . . use of a peremptory strike—whether

that party be the government, a criminal defendant, or a civil

litigant—is entitled to an explanation for that strike, much less to

have it disallowed, unless and until a prima facie showing of racial

discrimination is made.”). “Accordingly, the threshold task in

considering a Batson challenge, for a district court as well as this

Court, is to determine whether a prima facie case was established.

If the answer is no, then the inquiry ceases, and the challenge

should be denied.” Lowder Realty, 236 F.3d at 636.

In establishing a prima facie case, “the defendant must point

to more than the bare fact of the removal of certain venirepersons

and the absence of an obvious valid reason for the removal.”

United States v. Allison, 908 F.2d 1531, 1538 (11th Cir. 1990)

(quotation omitted). Rather, the defendant must point to

circumstances that raise an inference that the government has

exercised peremptory strikes to remove from the venire members

of a particular racial group. Id. Relevant evidence that a defendant

may present to support a prima facie case of racial discrimination

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14 Opinion of the Court 21-11254

include, among other things, (1) the government’s pattern of

striking venire members of one race or (2) questions or statements

made during voir dire to members of a particular race that support

the inference of a discriminatory purpose. Flowers, __ U.S. at __,

139 S. Ct. at 2243; Batson, 476 U.S. at 97; United States v.

Robertson, 736 F.3d 1317, 1326 (11th Cir. 2013).

On appeal, Gissendanner argues that both a pattern of

strikes and the government’s use of discriminatory questions or

statements during voir dire establish a prima facie case. At trial,

however, Gissendanner’s challenge rested solely on allegations

that the government had engaged in a pattern of discriminatory

strikes because it used four of its six strikes against the nine black

members of the venire which created a racial “disparity” in the jury,

and that there was no obvious reason to remove those jurors.

Gissendanner never argued to the district court that questions

posed by the government during voir dire suggested a

discriminatory purpose. 5 Accordingly, in determining whether

5 Gissendanner argues for the first time in his reply brief that he was not

afforded an opportunity to argue in the district court proceedings that the

prosecutor’s alleged race-tinged questioning was a basis for the Batson

challenges. We disagree. Gissendanner’s trial took place in August 2020 and

Gissendanner acknowledges that during that time there was significant

“media coverage about police officers’ use of force against Black Americans.”

Reply Br. at 15. Gissendanner did not object to the alleged “race-tinged”

questioning during voir dire as to whether certain unspecified recent events

had impacted the venirepersons’ view of law enforcement. Gissendanner

states that he did not object because “the questioning was not objectionable”

and explored “a valid subject of inquiry during voir dire.” Nevertheless, he

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Gissendanner established a prima facie case, we will consider only

the grounds that he advanced below. See United States v.

Houston, 456 F.3d 1328, 1338 (11th Cir. 2006) (declining to address

an additional argument in support of Batson challenge raised for

the first time on appeal).

As a matter of law, the fact that the government used four

of its six peremptory strikes against black members of the venire

standing alone is inadequate to establish a prima facie case. Lowder

Realty, 236 F.3d at 636 (“To begin with, the mere fact of striking a

juror or a set of jurors of a particular race does not necessarily

create an inference of racial discrimination.”); see also Stewart, 65

F.3d at 925 (explaining that “no particular number of strikes” used

against a particular race or ethnic group “automatically indicates

the existence of a prima facie case”). Rather, “[t]he number of

persons of a particular race struck takes on meaning only when

coupled with other information such as the racial composition of

the venire, the race of others struck, or the voir dire answers of

those who were struck compared to the answers of those who

were not struck.” Lowder Realty, 236 F.3d at 636–37.

argues that permissible questions may help establish a prima facie case if the

questioning was designed to “arm[] a prosecutor with seemingly race-neutral

reasons to strike the prospective jurors of a particular race.” (quotations

omitted). However, even if that is true, Gissendanner and his codefendant

raised three separate Batson challenges, which were discussed at length in the

district court, and not once did either Gissendanner or his codefendant

mention the prosecutor’s alleged improper questioning during voir dire as a

basis for its prima facie case, despite having ample opportunity to do so.

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The district court concluded that Gissendanner failed to

establish a prima facie case. As the district court correctly

observed, our precedent requires more than pointing to the bare

fact of the removal of venirepersons of a certain race. Id. at 637

(“In making out a prima facie case, the defendant must point to

more than the bare fact of the removal of certain venire persons

and the absence of an obvious valid reason for the removal.”

(quotations omitted)). In rejecting Gissendanner’s challenge, the

district court considered the totality of the circumstances,

including the racial composition of the jury, the answers of the

struck jurors during voir dire which demonstrated an “obvious

valid reason” for removal, and that the defense failed to point to

any other facts or circumstances—other than bare numbers and no

valid reason for removal—to support an inference of improper

racial discrimination. Additionally, three black jurors, including

one alternate, were seated on Gissendanner’s jury, which further

undermines his prima facie case. Id. at 638 (holding that “the

unchallenged presence of jurors of a particular race on a jury

substantially weakens the basis for a prima facie case of

discrimination in the peremptory striking of jurors of that race”);

see also United States v. Hill, 643 F.3d 807, 838–39 (11th Cir. 2011)

(holding that there was a strong basis for finding no prima facia case

existed where the government used 64% of its strikes against black

jurors, but several unchallenged black jurors served on the

18-person jury).

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Accordingly, for the reasons stated above, Gissendanner has

not shown that the district court’s prima facie determination was

clearly erroneous, and our inquiry must end. See Hill, 643 F.3d at

837–38 (“[T]he trial court’s [prima facie] determination is entitled

to great deference, and must be sustained unless it is clearly

erroneous.” (quotations omitted)); Ochoa-Vasquez, 428 F.3d at

1039 (“We give great deference to a district court’s findings of

whether a prima facie case of impermissible discrimination has

been established” and “it will not be disturbed on appeal unless it

is clearly erroneous or appears to have been guided by improper

principles of law.” (quotations omitted)); Lowder Realty, 236 F.3d

at 636 (“[T]he threshold task in considering a Batson challenge, for

a district court as well as this Court, is to determine whether a

prima facie case was established. If the answer is no, then the

inquiry ceases, and the challenge should be denied.”).

B. Sentencing Claim

Gissendanner argues that his sentence is procedurally

unreasonable because the district court inadequately explained the

chosen sentence and failed to consider his mitigation evidence.

We review a sentence for both procedural and substantive

reasonableness under a deferential abuse of discretion standard.

See Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing a

sentence for procedural reasonableness, we “ensure that the

district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the

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§ 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quotations

omitted).

The district court must issue a sentence that is “sufficient,

but not greater than necessary” to comply with the purposes of 18

U.S.C. § 3553(a)(2), which include the need for a sentence to reflect

the seriousness of the offense, promote respect for the law, provide

just punishment, deter criminal conduct, and protect the public

from future criminal conduct. 18 U.S.C. § 3553(a). The court must

also consider the “nature and circumstances of the offense and the

history and characteristics of the defendant.” Id. § 3553(a)(1).

“[T]he district court need only ‘acknowledge’ that it considered the

§ 3553(a) factors, and need not discuss each of these factors . . . .”

United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007)

(quotation and internal citation omitted). Importantly, the weight

given to a particular § 3353(a) factor “is committed to the sound

discretion of the district court,” and the district court is not

required to give “equal weight” to the § 3553(a) factors. United

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015)

(quotation omitted). When explaining a sentence, the district court

judge must “set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007).

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Here, the district court adequately explained the reasons for

Gissendanner’s sentence, including that Gissendanner was a leader

and organizer of the drug operation, continued to maintain his

innocence, and had a lengthy criminal record. The district court

emphasized that the sentence imposed struck “a good balance”

between the nature and circumstances of the offense and

Gissendanner’s personal history and characteristics, and the need

to protect the public. The district court’s statements establish that

it considered the § 3553(a) factors and had a reasoned basis for its

sentencing decision. The fact that the district court did not address

Gissendanner’s mitigation arguments does not mean that the

district court failed to consider them. See Amedeo, 487 F.3d at 833.

Furthermore, we know that the district court considered

Gissendanner’s mitigation arguments because it heard his

counsel’s mitigation arguments at sentencing. 6 Accordingly, on

this record, we conclude there was no procedural error.

6 The Supreme Court’s recent decision in Concepcion v. United States, 142 S.

Ct. 2389 (2022), which Gissendanner relies on as supplemental authority, does

not change our analysis. Concepcion involved the question of whether a

district court must consider intervening changes in the law when deciding a

motion for modification of sentence under the First Step Act. Id. at 2396. It

has no direct application to Gissendanner’s case. Furthermore, Concepcion

did not alter the general principle that the district court need not explicitly

address every § 3553(a) factor or mitigation argument as long as the record

reflects that the district court considered the arguments before it. Id. at 2404

(“Of course, a district court is not required to be persuaded by every argument

parties make, and it may, in its discretion, dismiss arguments that it does not

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III. Conclusion

For the above reasons, we affirm Gissendanner’s conviction

and sentence.

AFFIRMED.

find compelling without a detailed explanation. Nor is a district court required

to articulate anything more than a brief statement of reasons.”).