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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11596
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00210-LSC-TMP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIAN PEARSON BURKE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
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(April 2, 2015)
Before JORDAN, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
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Julian Burke appeals his 45-month sentence for two counts of wire fraud and
one count of interstate transportation of stolen goods. See 18 U.S.C. §§ 1343 &
2314. Mr. Burke argues that his sentence is substantively unreasonable because the
district court erred when it sentenced him to 12 months above the advisory
guideline range based on his past criminal conduct. After reviewing the parties’
briefs and the record, we affirm.
I
Mr. Burke defrauded three women–D.G, S.H., and C.W.–whom he met
separately at a Fleming’s Restaurant in Birmingham, Alabama, between October of
2010 and May of 2011. He encouraged the three women to invest in different
projects, which all shared one common characteristic: they were fictional and
fabricated by Mr. Burke. Mr. Burke had the women wire money from their bank
accounts to the bank accounts for his businesses, Burke Construction and
Computer Converters.
D.G. wired a total of $104,000 to Computer Converters and Burke
Construction to loan money to pawn shops and invest in the publication of
academic coloring books for children. S.H. wired $40,000 to Burke Construction to
invest in the purchase of a pawn shop. C.W. personally hand delivered a check to
Mr. Burke for $100,000 to invest in the Admiral Semmes Hotel in Mobile,
Alabama. Mr. Burke used the $244,000 for his own personal benefit.
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In March of 2013, a federal grand jury indicted Mr. Burke on four counts of
wire fraud and one count of transportation of stolen money in interstate commerce.
He ultimately pled guilty to two counts of wire fraud and one count of
transportation of stolen money in interstate commerce. The government and Mr.
Burke agreed that the loss amount attributable to him for sentencing purposes was
$264,300. The presentencing investigation report set Mr. Burke’s total offense
level at 16 and his criminal history category at III, which resulted in an advisory
guideline sentencing range of 27 to 33 months of imprisonment.
The report also detailed Mr. Burke’s ten prior criminal convictions. Mr.
Burke had six criminal convictions in the 1980s. These convictions were for
extortion, intimidating a witness, promoting prostitution, reckless driving,
impersonating a peace officer, and negotiating a worthless instrument. The 1990s
were a bit less active for Mr. Burke, as he was convicted of two crimes: selling
game fish and bank fraud. Significantly, Mr. Burke’s criminal history score under
the Sentencing Guidelines was not increased by any of these eight convictions
from the 1980s and 1990s. In the early 2000s, Mr. Burke was convicted of two
counts of theft of property, and these convictions gave him four criminal history
points and a criminal history category of III.
The report further listed approximately twenty arrests for criminal conduct
of which Mr. Burke was either not prosecuted or not convicted. These arrests,
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which spanned from the 1970s to the mid-2000s, also did not increase Mr. Burke’s
criminal history category. Of all the listed prior arrests, charges, and convictions
listed in the report, Mr. Burke objected only to the veracity of his 1992 conviction
for the sale of game fish.
The report, under “relevant conduct,” states that in November of 2012, D.B.,
another female, contacted the Alabama Securities Commission regarding a $20,000
investment she had made with Mr. Burke. In 2013, the Commission also spoke to
other women who claimed to have invested with Mr. Burke: J.P. invested $40,000,
J.H. invested $80,000, L.P. invested $60,000, and M.H. invested over $1,000,000.
Although his offense level was not increased by the amounts allegedly invested by
these women, Mr. Burke objected to the inclusion of this conduct in the report and
denied the allegations. At sentencing, the district court sustained Mr. Burke’s
objection as to the relevant conduct obtained from statements given to the
Alabama’s Securities Commission.
The government argued that there was “a pattern of Mr. Burke actually
preying upon women who were in a vulnerable position.” D.G., one of the victims,
testified that Mr. Burke “was enjoying a very lavish lifestyle, all while stealing
from others to maintain it,” and recounted the financial and mental anguish Mr.
Burke’s lies had and continue to cost her.
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The district court acknowledged that the advisory guideline range was 27 to
33 months and that neither Mr. Burke nor the government had objected to this
range. 1 The district court then recognized that its “job is to sentence the defendant
to a sentence which is sufficient but not more than necessary to accomplish the
sentencing goals set forth in the federal statutes,” but stated that “[t]he advisory
guideline range is just that[, advisory]. . . [i]t’s not binding.” The district court
considered Mr. Burke’s “past, prior convictions that start in the 80s” and stated it
was “abundantly clear . . . that the guideline range is not sufficient.” The district
court ordered that Mr. Burke serve 45 months in prison for Counts 1, 4, and 5, “all
separate but to run concurrently.” It stated that, when considering “the nature and
circumstances of the offense and the history and characteristic of the defendant,”
such a sentence was appropriate. Although Mr. Burke had a gambling issue, he
also had, the district court found, “a thieving issue.” “He has been stealing and
being a con man for a long time. And times have come to –that time has come to
an end today.”
II
Mr. Burke on appeal argues that his sentence was substantively
unreasonable, because it was greater than necessary to serve the statutory
1
Wire fraud carries a maximum sentence of twenty years, see 18 U.S.C. § 1343, and the
transportation of stolen goods in interstate commerce carries a maximum sentence of ten years,
see 18 U.S.C. § 2314. Mr. Burke’s total sentence was less than four years.
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sentencing factors set forth in 18 U.S.C. § 3553(a). According to Mr. Burke, the
district court did not make any additional findings that justified a 12-month upward
variance. Mr. Burke concedes that the district court cited his past criminal acts as
the reason for the variance, but he contends that his prior criminal conduct had
already been addressed by the guidelines. Therefore, the district court abused its
discretion, when it used his prior criminal conduct to vary upward.
We review a sentence imposed by a district court under a “deferential abuse-
of-discretion standard.” United States v. Overstreet, 713 F.3d 627, 636 (11th Cir.
2013) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The district court
must impose a sentence “sufficient but not greater than necessary to comply with
the purposes” listed in § 3553(a)(2). See United States v. Irey, 612 F.3d 1160,
1196-97 (11th Cir. 2010) (en banc). These include the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for
the offense, deter criminal conduct, and protect the public from the defendant’s
future criminal conduct. Id. at 1198.
Importantly, the weight given to any § 3553(a) factor “is a matter committed
to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739,
743 (11th Cir. 2007). We will reverse only if the district court committed a clear
error in weighing the § 3553(a) factors “by arriving at a sentence that lies outside
the range of reasonable[ness].” Id. We cannot reverse a district court’s sentence,
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under this standard, simply because we would have imposed a different sentence.
Irey, 612 F.3d at 1191. The party challenging the sentence has the burden of
demonstrating that the sentence is unreasonable in light of the record and the
factors outlined in 18 U.S.C. § 3553(a). United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008).
The sentencing guidelines are advisory. Gall, 552 U.S. at 46; United States
v. Williams, 435 F.3d 1350, 1354 n.2 (11th Cir. 2006). “[A] sentence outside the
Guidelines carries no presumption of unreasonableness.” Irizarry v. United States,
553 U.S. 708, 714 (2008) (internal citation omitted). District courts are required to
provide sufficient justifications to explain why any unusually harsh sentence is
appropriate, Gall, 552 U.S. at 46, but we must give due deference to the district
court’s determination that “the § 3553(a) factors, on a whole, justify the extent of
the variance.” Id. at 51.
After reviewing the record, we conclude that there is no abuse of discretion.
The district court considered and weighed the § 3553(a) factors and sufficiently
explained its reason for imposing a sentence above the advisory guideline range.
The district court, noting Mr. Burke’s long criminal resume of cons and thieving,
“the nature and circumstances of offense,” and his characteristics, concluded that
the guideline range was insufficient to accomplish § 3553(a)’s sentencing goals,
particularly reflecting the seriousness of the offense and deterring Mr. Burke’s
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behavior from continuing. Although the district court acknowledged Mr. Burke
had a gambling problem, it also found he had a “thieving problem.”
Mr. Burke argues that the district court’s analysis gave undue weight to his
past criminal activity, which mostly occurred decades ago. He emphasizes the fact
that, despite his past crimes, he has “had no criminal conviction in the last ten
years,” and suggests the district court failed to consider the fact that most of his
crimes were in the distant past. While that is relevant, it is also perhaps just as
relevant that Mr. Burke had been incarcerated and on parole for almost the entirety
of those ten years. And although the district court undoubtedly gave greater weight
to Mr. Burke’s criminal past than other § 3553(a) factors, we cannot substitute our
views for those of the district court. See Clay, 483 F.3d at 743. The district court’s
analysis did not constitute clear error and was not substantively unreasonable.
III
We affirm Mr. Burke’s sentence.
AFFIRMED.
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