[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13682 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 18, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00101-RAL-AEP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
MICHAEL PERNELL WESTON,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 18, 2011)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
In March 2009 Michael Pernell Weston was indicted for four counts of bank
robbery in violation of 18 U.S.C. § 2113, and one count of carjacking, in violation
of § 2119. He pleaded guilty to three counts of bank robbery and received an
above-guidelines sentence of 240 months’ federal imprisonment. Weston raises
two arguments on appeal. First, he argues that the district court inaccurately
calculated his sentence because it erroneously considered his state-court sentence
for October 7, 2008 conduct to be a “prior sentence” when determining Weston’s
criminal history category. Second, Weston argues that his sentence is procedurally
and substantively unreasonable. After careful consideration of the record and the
parties’ briefs on appeal, we affirm.
1. Calculation of Criminal History Category
Weston argues that the district court erred by including his state-court
sentence for an October 7 bank robbery and carjacking1 when determining his
criminal history category. Because Weston raises this argument for the first time
on appeal, we review only for plain error. See United States v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005). To establish plain error, a defendant must show
that there is (1) error, (2) that is plain, (3) that affects substantial rights, and (4)
that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
1
These offenses, which constituted Counts One and Two of the instant indictment, were
dismissed pursuant to Weston’s plea agreement.
2
Ordinarily, a sentencing judge should add three points to a defendant’s
criminal history category for each “prior sentence” of imprisonment exceeding one
year and one month. U.S.S.G. § 4A1.1(a). But under § 4A1.2(a)(1), conduct that
was part of the instant offense cannot be classified as a “prior sentence.” Thus,
Weston argues that his state-court sentence should have been excluded because it
was based on conduct that is part of the “instant offense.” We disagree. The first
note in the commentary to § 4A1.2 defines “[c]onduct that is part of the instant
offense” as that which is “relevant” to the instant offense under § 1B1.3. Section
1B1.3, in turn, when read together with § 3D1.2(d), operates to exclude a § 2B3.1
offense (robbery). Accordingly, Weston’s state-court sentence for bank robbery is
not “relevant conduct” to the instant offense, and is therefore correctly classified
as a “prior sentence.”
Notwithstanding the district judge’s passing use of the phrase “relevant
conduct,” the district court did not err, much less plainly err, when considering
Weston’s prior state-court convictions when calculating his criminal history
category. The district court was entitled to consider Weston’s state-court
sentence, along with the other 18 U.S.C. § 3553(a) factors, when determining his
sentence.
2. Substantive and Procedural Reasonableness
3
Weston argues that his 240-month, above-guidelines sentence was
inconsistent with the purposes set forth in § 3553(a), greater than necessary, and
overly reliant on his prior state-court convictions. We disagree.
We review the reasonableness of a sentence under the deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). First, we must
determine whether the district court committed any “significant procedural error,
such as failing to calculate (or improperly calculating) the [sentencing] Guidelines
range . . ., failing to consider the § 3553(a) factors . . ., or failing to adequately
explain the chosen sentence . . . .” Id. at 51. If we determine that the district
court’s decision was procedurally sound, we next consider the substantive
reasonableness of the sentence imposed, taking into account “the totality of the
circumstances.” Id. We may not presume that a sentence outside the guidelines
range is unreasonable and generally must defer to the district court’s decision that
the § 3553(a) factors justify the extent of the variance. See United States v. Irey,
612 F.3d 1160, 1187 (11th Cir. 2010) (en banc), cert. denied 2011 WL1225730
(2011). A district court shall impose a sentence that is sufficient, but not greater
than necessary. See § 3553(a)(2) (listing relevant factors for district court’s
consideration). Although a district court’s unjustified reliance on any one
§ 3553(a) factor can indicate an unreasonable sentence, United States v. Pugh, 515
4
F.3d 1179, 1191 (11th Cir. 2008), a district court is free to attach “great weight” to
one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.
2009), cert. denied, 129 S. Ct. 2847 (2009). The party challenging the sentence
bears the burden of establishing that the sentence is unreasonable in light of both
the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005) (per curiam).
Weston has failed to establish that his sentence was procedurally or
substantively unreasonable. As explained supra, the district court properly
considered Weston’s previous state-court sentence when calculating his federal
jsentence. Further, after hearing from the parties, the district court adequately
explained why the § 3553(a) factors militated in favor of an above-guidelines
range sentence. The district court did not abuse its discretion when it focused on
Weston’s extensive criminal history, including the conduct underlying Weston’s
state-court sentences, in deciding to vary upward. The district court considered
Weston’s arguments for mitigation and allocution, and was then free to weigh the
statutory factor of criminal history more heavily than others. Weston’s sentence
was not greater than necessary, because as the district court explained, the
circumstances of this case “cry out for a sentence in excess of” the guidelines
range.
5
Accordingly, Weston’s challenge to the procedural and substantive
reasonableness of his sentence fails.
AFFIRMED.
6