United States v. Avery Frazier
703 F. App'x 849
11th Cir.2017Background
- Avery Frazier pleaded guilty to four Hobbs Act robberies and one § 924(c) count for brandishing a firearm during a crime of violence; robberies targeted automobile title loan businesses.
- He threatened employees, forced several into another room, and told them to comply if they wanted to see their families again.
- Victim impact statements described significant trauma; one employee relocated and another feared returning to work.
- At sentencing, the guidelines range was 162–181 months; the district court varied upward to 240 months, citing punishment and deterrence.
- The district court found Frazier’s allocution and character witnesses not credible, emphasized evidence he gambled away the proceeds, and concluded the guidelines did not adequately account for deterrence/punishment.
- Frazier appealed, arguing his sentence was procedurally and substantively unreasonable and that the court impermissibly double-counted firearm conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural reasonableness of upward variance | Frazier: district court failed to adequately explain reasons for upward variance | Government: court repeatedly explained reasons (credibility, gambling, victim harm, deterrence/punishment) | Affirmed — explanation was adequate for meaningful appellate review |
| Substantive reasonableness / abuse of discretion | Frazier: variance overemphasized gambling, ignored allocution, character testimony, lack of criminal history | Government: district court reasonably weighed factors, rejected credibility, properly considered need for deterrence/punishment given facts | Affirmed — no clear error in weighing § 3553(a) factors; sentence not substantively unreasonable |
| Double counting firearm conduct | Frazier: brandishing already accounted for in guidelines, so using it to justify variance is impermissible double counting | Government: district court may consider conduct used in guidelines when imposing a variance | Held — no improper double counting; district court may consider same conduct in variance analysis |
Key Cases Cited
- United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008) (district courts must impose procedurally and substantively reasonable sentences)
- United States v. Livesay, 525 F.3d 1081 (11th Cir. 2008) (district court must adequately explain variance to permit appellate review)
- United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) (standards for reviewing substantive reasonableness and when a major variance requires stronger justification)
- United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008) (defining review standard for substantive unreasonableness)
- United States v. Clay, 483 F.3d 739 (11th Cir. 2007) (weight accorded § 3553(a) factors is left to district court’s discretion)
- United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006) (explaining improper double counting under the guidelines)
- United States v. Moran, 778 F.3d 942 (11th Cir. 2015) (district court may consider conduct already considered in calculating the guidelines when imposing a variance)