[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12740 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00084-TJC-JRK-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DAVID EUGENE BROWN,
a.k.a. Gene,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 16, 2011)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
David Brown appeals his 120-month above-guideline sentence for
possessing a firearm as a convicted felon, in violation 18 U.S.C. §§ 922(g)(1) and
924(a)(2).1 On appeal, Brown argues that his sentence is substantively
unreasonable because the district improperly weighed the 18 U.S.C. § 3553(a)
sentencing factors and failed to give sufficient justification for imposing a major
upward variance. Brown also argues that the district court was not allowed to
consider the five-year sentence he received for a previous conviction for
possessing a firearm as a convicted felon. Brown further argues that the district
court relied too heavily upon his prior criminal history and arrest record in
imposing an upward variance.
We review the reasonableness of sentences imposed under the advisory
Sentencing Guidelines under an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 40, 51, 128 S. Ct. 586, 591, 597, 169 L. Ed. 2d 445 (2007). A
district court abuses its discretion when it fails to afford consideration to relevant
factors that were due significant weight, gives significant weight to an improper or
irrelevant factor, or commits a clear error of judgment in considering the proper
factors, such as balancing the factors unreasonably. United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc), petition for cert. filed, 79 U.S.L.W.
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While 120 months was the statutory maximum sentence for the offense, the
Sentencing Guidelines recommended only a 30- to 37-month sentence.
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3361 (U.S. Nov. 24, 2010) (No. 10-727). Reasonableness review is deferential,
and the burden of establishing unreasonableness lies with the party challenging the
sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
When reviewing a sentence for substantive reasonableness, we evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing under § 3553(a). Id. In relevant part, § 3553(a) requires the
consideration of the following factors: (1) the nature and circumstances of the
offenses; (2) the history and characteristics of the defendant; (3) the need to reflect
the seriousness of the offense, promote respect for the law, and provide just
punishment; (4) the need to afford adequate deterrence to criminal conduct and
protect the public from further crimes of the defendant; (5) the need to provide the
defendant with educational or vocational training, medical care, or other treatment;
(6) the kinds of sentences available; (7) the sentencing guidelines range; and
(8) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct. 18 U.S.C.
§ 3553(a)(1)-(4), (6). The sentencing judge should “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, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007).
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“Sentences outside the guidelines are not presumed to be unreasonable, but
we may take the extent of any variance into our calculus.” United States v. Shaw,
560 F.3d 1230, 1237 (11th Cir. 2009), cert. denied, 129 S. Ct. 2847 (2009). When
a district court determines that a variance from the guidelines is necessary to
achieve the goals of sentencing, it should explain why the variance is appropriate
for that defendant with sufficient justifications to support the variance and to allow
for meaningful appellate review. Id. at 1238. The district court’s justification for
the variance must be sufficiently compelling to support the degree of the variance.
Irey, 612 F.3d at 1186-87. We give “due deference” to a district court’s decision
to impose a variance, and will vacate a sentence because of a variance “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 by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the
case.” Shaw, 560 F.3d at 1238 (internal quotation marks omitted).
A district court may consider all relevant facts concerning a defendant’s
background, character, and conduct in assessing the § 3553(a) factors. United
States v. Faust, 456 F.3d 1342, 1347-48 (11th Cir. 2006). If a defendant does not
object to factual statements contained in a PSI report, the facts are deemed
admitted for consideration at sentencing. United States v. Shelton, 400 F.3d 1325,
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1330 (11th Cir. 2005). Additionally, a district court may consider factors that
have already been accounted for in the Guidelines when making the decision to
impose an upward variance. United States v. Amedeo, 487 F.3d 823, 833-34 (11th
Cir. 2007). While a district court is required to evaluate all the § 3553(a) factors,
it is permitted to attach greater weight to one factor over others. Shaw, 560
F.3d at 1237. For example, a district court may find that a guidelines sentence
does not adequately address the need to promote deterrence or the need to protect
the public in light of the defendant’s criminal history. See, e.g., id. at 1236-37,
1240-41; United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006). A
defendant’s personal disagreement with the district court’s assessment of one or
more of the factors is not a sufficient reason to vacate a district court’s careful
consideration of the § 3553(a) factors as unreasonable. See United States v.
Valnor, 451 F.3d 744, 752 (11th Cir. 2006).
Here, the district court did not abuse its discretion in varying above the
guidelines range to sentence Brown to the statutory maximum. The court
adequately considered the parties’ arguments, the advisory guidelines range, and
the statutory factors in crafting the sentence. The court took particular note of
prior conduct in the PSI report, including Brown’s convictions as a minor for
aggravated assault in an incident in which he shot a man three times, and cruelty to
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animals; his conviction as an adult for possessing a firearm as a convicted felon in
an incident in which he shot a man in the chest; and his arrests that did not lead to
conviction for such conduct as battery, grand theft, and aggravated assault.
Likewise, the court discussed Brown’s difficult childhood, his family situation,
and his mental and emotional problems. When the court issued the sentence, it
engaged in a reasoned and detailed discussion of the weight due to these facts
under each of the § 3553(a) factors, including Brown’s history and characteristics,
the need to provide adequate deterrence, the need to protect the public, and the
need to provide Brown with treatment. It also discussed the factors that
distinguished Brown from other defendants convicted of the same crime,
addressing the need to avoid sentencing disparities. Based on its assessment of the
factors, it imposed the statutory maximum sentence.
Contrary to Brown’s arguments, the district court properly weighed the
sentencing factors, justified its decision to impose an upward variance, and
considered no inappropriate facts from Brown’s record. Because Brown has
presented no other arguments as to why his 120-month sentence is unreasonable,
he has failed to meet his burden of demonstrating the unreasonableness of his
sentence. Accordingly, we affirm Brown’s sentence.
AFFIRMED.
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