In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3966
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
B ROOK A BEBE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cr-00116-SEB-KPF-1—Sarah Evans Barker, Judge.
A RGUED JUNE 1, 2011—D ECIDED JUNE 29, 2011
Before F LAUM and SYKES, Circuit Judges, and C ONLEY,
District Judge.
F LAUM, Circuit Judge. Brook Abebe pled guilty to armed
bank robbery, discharge of a firearm during a crime of
violence, and unlawful possession of a firearm by a
The Honorable William M. Conley, Chief Judge of the United
States District Court for the Western District of Wisconsin,
sitting by designation.
2 No. 10-3966
convicted felon. He contends that the district court com-
mitted a procedural error in setting his sentence and that
his above-guideline sentence is substantively unreasonable.
We disagree and affirm the district court’s judgment.
I. Background
Abebe robbed a Chase Bank in Indianapolis, Indiana,
while armed with a .38-caliber handgun and a rifle pellet
gun. During the robbery, he ordered bank employees and
customers at gun point to lie on the floor and threatened to
kill them if they did not comply. Abebe stole over $9,000
from the bank and discharged his handgun twice in the
process, the first time inside the bank when he fired a
round into the bank’s ceiling, the second outside the
bank when he shot a bystander in the face while leaving
the scene. (The bystander survived with serious inju-
ries.) Abebe then hopped into his getaway car, but drove
only one-half mile or so from the bank before he crashed
into a ditch and was subsequently arrested. Law enforce-
ment officials recovered Abebe’s handgun in the
getaway car. Notably, Abebe had four prior felony con-
victions at the time he robbed the bank.
Abebe was indicted on three charges: armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count
One); discharge of a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c) (Count Two); and unlawful
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g) (Count Three). He pled guilty without a
plea agreement to all three counts.
No. 10-3966 3
At Abebe’s sentencing hearing, the district court cal-
culated a guideline range of 84 to 105 months
of imprisonment on Counts One and Three, noted that
Count Three had a maximum sentence of 120 months of
imprisonment, and found Abebe subject to a mandatory
minimum sentence of 120 months of imprisonment on
Count Two, to run consecutively to Counts One and Three.
After hearing arguments from both sides, the district court
considered the factors in § 3553(a) and sentenced Abebe to
300 months’ imprisonment, consisting of 180 months on
Count One, a concurrent sentence of 120 months on Count
Three, and a consecutive sentence of 120 months on Count
Two. It also ordered Abebe to pay restitution and imposed
five years of supervised release on Counts One and Two
and three years of supervised release on Count Three,
to run concurrently.
II. Discussion
Abebe directly appeals, arguing that the district court
procedurally erred in setting his sentence and that
his above-guideline sentence is substantively unreasonable.
We discuss each argument in turn.
1. Procedural Error
Abebe claims that the district court erroneously focused
on reasonableness when setting his sentence, instead of on
imposing a sentence “sufficient, but not greater than
necessary,” to comply with the factors in § 3553(a)(2). 18
U.S.C. § 3553(a). We review de novo whether the district
4 No. 10-3966
court followed proper procedures at sentencing. United
States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010); United
States v. Coopman, 602 F.3d 814, 817 (7th Cir. 2010).
Section 3553(a) provides that sentencing courts “shall
impose a sentence sufficient, but not greater than neces-
sary, to comply with the purposes set forth in paragraph
(2) of this subsection,” and then lists a number of factors
that the courts “shall consider.” 18 U.S.C. § 3553(a). But
courts are not required to expressly refer to that provision
at sentencing. See United States v. Tyra, 454 F.3d 686, 687-88
(7th Cir. 2006) (rejecting a defendant’s argument that the
district court committed a procedural error because, he
claimed, it was not clear that the district court concluded
that his sentence was “sufficient, but not greater than
necessary,” to comply with the goals in § 3553(a), and
explaining that “district courts need not recite any magic
words at sentencing to assure us that the correct standard
is being used”). Rather, they must “ ’(1) calculate the
applicable Guidelines range; (2) give the defendant
an opportunity to identify any of the 18 U.S.C. § 3553(a)
factors that might warrant a non-Guidelines sentence; and
(3) state which factors influenced the final sentence.’ ”
United States v. Curb, 626 F.3d 921, 926 (7th Cir. 2010)
(quoting United States v. Campos, 541 F.3d 735, 749-50 (7th
Cir. 2008)); see also Tyra, 454 F.3d at 687-88. “ ’The sentenc-
ing 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 decision
making authority.’ ” Curb, 626 F.3d at 926 (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)). But “[t]he court
need not make factual findings as to each of the sentencing
No. 10-3966 5
factors; it is sufficient that the record shows that the court
considered them.” Campos, 541 F.3d at 750.
We find no indication in the record that the district court
did not comply with its obligation to set Abebe’s sentence
at a level “sufficient, but not greater than necessary,” to
satisfy the goals of sentencing. Further, the district court
did not err by stating at sentencing that it sought to impose
a “reasonable” sentence, or by never expressly mentioning
its obligation to impose a sentence that is “sufficient, but
not greater than necessary,” to comply with the factors in
§ 3553(a)(2). 18 U.S.C. § 3553(a). District courts are not
prohibited from using the word “reasonable” at sentenc-
ing, nor are they required to expressly mention their
obligation to impose a sentence “sufficient, but not greater
than necessary,” to comply with the goals of sentencing.
See Tyra, 454 F.3d at 687-88.
The district court did exactly what we ask courts to do at
sentencing. It calculated the applicable guidelines range,
considered Abebe’s arguments for a lower sentence, and
discussed and applied the factors in § 3553(a), specifically
focusing on the nature and circumstances of Abebe’s
offense and his history and characteristics. We find no
procedural error.
2. Substantive Unreasonableness
We also disagree with Abebe’s argument that his sen-
tence, seventy-five months above the applicable guideline
range, is substantively unreasonable. “We ‘will uphold an
above-guidelines sentence so long as the district court
6 No. 10-3966
offered an adequate statement of its reasons, consistent
with 18 U.S.C. § 3553(a), for imposing such a sentence.’
There is no presumption that a sentence outside the guide-
lines’ range is unreasonable.” United States v. Aldridge, No.
09-2520, slip op. at 12, 2011 WL 1518834, at *6 (7th Cir. Apr.
22, 2011) (quoting United States v. McIntyre, 531 F.3d 481,
483 (7th Cir. 2008)).
The fact that we “might reasonably have concluded
that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Our review
must take into account that a “sentencing judge is in a
superior position to find facts and judge their import
under [section] 3553(a) in the individual case. The
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” Because
the district court has greater familiarity with the case
and the individual defendant and therefore an institu-
tional advantage over an appellate court in making
sentencing determinations, we must defer, absent an
abuse of discretion, to its ruling.
United States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The district court considered the factors in § 3553(a) and
adequately articulated its decision to impose an above-
guideline sentence. Specifically, it explained that “the
nature and circumstances of this offense are by every
measure horrific,” and that the nature of the crime was not
sufficiently accounted for by the guidelines. It also empha-
sized that Abebe carried two firearms during the robbery,
No. 10-3966 7
fired his handgun “twice, once to scare the wits out of
people, and the other to come within a hair’s breadth of
taking a life,” terrorized the bank’s employees and custom-
ers, forcing them “to lie down on the ground and . . .
wonder[ ] if they were drawing their last breath,” and
placed people at risk. Although Abebe contends that a
within-guideline sentence would have kept him in jail until
his early-60s and thus that his above-guideline sentence is
not necessary to protect the public from him committing
more crimes, we find no abuse of discretion in sentencing
him to 300 months of imprisonment. Cf. United States v.
Ellis, 622 F.3d 784, 800 (7th Cir. 2010) (upholding a 90-
month sentence where the applicable guideline range was
46 to 57 months); United States v. McKinney, 543 F.3d 911,
912, 913-14 (7th Cir. 2008) (upholding a 293-month sentence
where the applicable guideline range was 188 to 235
months).
III. Conclusion
We AFFIRM the judgment of the district court.
6-29-11