[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12619 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 10, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cr-00003-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCIS LARNELL BROWN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 10, 2011)
Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Francis Brown appeals the substantive reasonableness of her 36-month
sentence for bank fraud, 18 U.S.C. § 1344. No reversible error has been shown;
we affirm.
We review a sentence, “whether within or without the guidelines . . . only
for reasonableness under an abuse of discretion standard.” United States v. Irey,
612 F.3d 1160, 1186 (11th Cir. 2010) (en banc). The party challenging the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both the record and the 18 U.S.C. § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). Under section 3553(a), a district court
should consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for the sentence to provide adequate
deterrence, respect for the law, and protection of the public, provision for the
medical and educational needs of the defendant, policy statements of the
Sentencing Commission, and the need to avoid unwarranted sentencing disparities.
See 18 U.S.C. § 3553(a)(1)-(7).
We conclude that Brown’s sentence is reasonable. Although the 36-month
sentence varied upward from the top of the advisory guidelines range by 20
months, the sentence was only one-tenth of the 30-year statutory maximum she
faced. See 18 U.S.C. § 1344; see also United States v. Valnor, 451 F.3d 744, 751-
52 (11th Cir. 2006) (affirming an upward variance and observing that the ultimate
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sentence was appreciably below the statutory maximum).1 In addition, the district
court stated that it had considered the section 3553(a) factors and concluded that
the guidelines range did not reflect accurately the seriousness of the instant
offense -- especially the devastation Brown’s conduct caused her victims -- or
Brown’s criminal history and the need to deter her from committing more theft
crimes in the future.
The district court’s reasons are supported by the record and the section
3553(a) factors. Brown defrauded an elderly couple2 of almost $20,000 after
Brown moved in with the couple to act as their caretaker. Among other things,
Brown used religion as a way to gain the victims’ trust, used the victims’ credit
cards over 50 times to purchase goods, and forged one of the victim’s signatures
on a check made out to Brown.
And Brown had a long history of theft and deceit: she had prior convictions
for petit larceny, possession of stolen mail, and writing worthless checks that
spanned over a 30-year period in addition to other theft arrests where the charges
1
Also, the government indicted Brown for 12 offenses, including many counts of
aggravated identity theft. After Brown pleaded guilty to the single bank fraud charge, the
government dismissed the other counts. Had Brown been found guilty of any of the aggravated
identity theft counts, she would have faced two-year mandatory sentences on each count
consecutive to the sentences for her bank fraud convictions. See 18 U.S.C. 1028A(a)(1), (b)(2).
2
The victims were 81 and 91 years old when Brown committed the instant offense.
3
had been dismissed.3 But despite Brown’s extensive criminal history of theft and
deceit crimes, she had received lenient sentences and, for guidelines calculation
purposes, received a criminal history category of only II.
On appeal, Brown argues that the vulnerability of the victims and amount of
loss already was considered in the guidelines calculation. But a district court can
rely on factors in imposing a variance that it already considered in calculating the
guidelines. United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).
And while Brown argues that the court’s upward variance is unreasonable because
the court concluded than an upward departure was unwarranted, there is no
requirement that a district court must impose a departure before imposing a
variance. Id.
Given the seriousness of Brown’s offense and her recidivist history, the
district court abused no discretion in determining that an above-guidelines
sentence was needed to punish and to deter Brown. And given the circumstances
of Brown’s case and the district court’s reasoned discussion of those
circumstances, we also conclude that the district court adequately justified the
variance. See Irey, 612 F.3d at 1186 (explaining that the district court “must give
3
Brown committed the instant offense while she was on probation for an earlier theft
offense.
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‘serious consideration’ to the extent of any departure from the guidelines, and
must offer ‘sufficient justifications’ for its conclusion that an unusually harsh or
light sentence is appropriate”).
AFFIRMED.
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