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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10793
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20719-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEWIS GORNITZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 2, 2016)
Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Lewis Sanford Gornitz pled guilty to two counts of theft of government
money, in violation of 18 U.S.C. § 641. He now appeals his 38-month sentence,
on the grounds that the district court’s upward variance from the 12-to-18 months
Guidelines range was both substantively and procedurally unreasonable. Gornitz
argues first that his sentence was procedurally unreasonable because the district
court failed to provide an adequate explanation for what he describes as its
“extraordinary” 20-month upward variance from the Sentencing Guidelines.
Second, Gornitz asserts that his sentence is substantively unreasonable because the
court’s reasons were not sufficiently compelling to support the upward variance in
sentencing. He contends that the court erred in weighing certain 18 U.S.C.
§ 3553(a) factors. In particular, Gornitz complains that the district court should
have weighed his failure to pay any restitution before sentencing and his prior
unscored grand-theft convictions less, and it should have weighed his gambling
addiction and poor health more.
I. STANDARD OF REVIEW
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th
Cir. 2015). Alternatively, if a party failed to raise a timely objection to the
reasonableness of the sentence in district court, we review the objection on appeal
for plain error. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005).
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Gornitz objected to the reasonableness of the district court’s upward variance and
resulting sentence, so we review the reasonableness of Gornitz’s imposed sentence
for an abuse of discretion. Rosales-Bruno, 789 F.3d at 1254.
II. DISCUSSION
A. The District Court Adequately Explained its Variance from the Sentencing
Guidelines.
In reviewing whether a sentence is procedurally unreasonable, we determine
whether the district court erred in calculating the Guidelines range, treated the
Sentencing Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a)
factors, selected a sentence based on clearly erroneous facts, or failed to adequately
explain the sentence. Gall v. United States, 552 U.S. 38, 51 (2007).
Here, Gornitz concedes that the district court both correctly calculated the
Guidelines range and considered the factors outlined in § 3553(a). We likewise
find no indication that the court treated the Guidelines as mandatory or based the
sentence on clearly erroneous facts. Gornitz does argue, however, that his sentence
is procedurally unreasonable on the grounds that the court did not adequately
explain the upward variance of his 38-month sentence from the Guidelines range
of 12 to 18 months.
The district court is charged with imposing a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” listed in § 3553(a)(2),
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including 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 crimes. See 18 U.S.C. § 3553(a)(2). The
§ 3553(a) factors, in addition to the § 3553(a)(2) purposes listed above, include the
following: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the
Sentencing Guidelines’s range for the offense; (4) the Sentencing Commission
policy statements; (5) the need to avoid unwarranted sentencing disparities; and (6)
the need to provide victims with restitution. 18 U.S.C. § 3553(a)(1)-(7).
When explaining the imposed sentence, the district court need not recite the
specific Guidelines language or explicitly articulate its consideration of each
§ 3553(a) factor, “so long as the record reflects the court’s consideration of many
of those factors.” United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010).
Rather, the district court must “‘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.’” Id. (quoting Rita v. United Sates, 551
U.S. 338, 356 (2007)).
The record here shows that the district court adequately explained Gornitz’s
sentence. The court specifically articulated the reasons behind its upward variance
and discussed substantially all of the § 3553(a) factors. Ghertler, 605 F.3d at
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1262. Indeed, after fully hearing arguments and Gornitz’s allocution, the court
stated that it had considered the Presentence Investigation Report, the character
letter filed on Gornitz’s behalf, the parties’ arguments, the applicable guideline
range, and the § 3553(a) factors. Id. In particular, the court made clear that it had
considered the nature and circumstances of the offense; Gornitz’s characteristics,
including his past criminal history; his need for education, vocational training, and
medical care; the need to provide restitution; and the policy goals of the Sentencing
Guidelines, including the need to deter crime and the need to protect the public. 18
U.S.C. § 3553(a)(1)-(7). The court explained that it believed these factors, taken
together, warranted an upward variance in sentencing, particularly to ensure
achievement of the Guidelines’s goal of deterring further criminal conduct, in light
of Gornitz’s prior recidivism.
Our jurisprudence does not require that a court recite specific Guidelines
language or explicitly address each § 3553(a) factor in explaining its sentencing.
Ghertler, 605 F.3d at 1262. The court here, though, did that and more, providing a
clear and reasoned basis for the imposition of an upward variance. As a result, the
record provides a more than adequate basis for us to conclude that the district
court’s sentence was procedurally reasonable.
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B. Gornitz’s Sentence Was Substantively Reasonable.
After reviewing for procedural reasonableness, we proceed to the second
step of Gall’s two-step inquiry and review the substantive reasonableness of the
sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597. At this step, we examine “the
totality of the circumstances, including an inquiry into whether the statutory factors
in § 3553(a) support the sentence in question.” United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008).
If the court varied upward after weighing the § 3553(a) factors, its
justification must be compelling enough to support the degree of the variance, and
its reasoning must be complete enough to allow for meaningful appellate review.
United States v. Early, 686 F.3d 1219, 1221 (11th Cir. 2012); see also Gall, 552
U.S. at 50, 128 S. Ct. at 597 (holding that a major variance in sentencing requires
“a more significant justification than a minor one”). We have held as a “major
variance” a deviation of 42 percent, for which a sufficiently compelling
justification was required. United States v. Irey, 612 F.3d 1160, 1196 (11th Cir.
2010) (en banc) (citing United States v. Smith, 573 F.3d 639, 660–61 & n. 5 (8th
Cir. 2009) (reduction of 33 percent constituted a “major variance”).
While a “sufficiently compelling” justification must exist, the Supreme
Court has specifically rejected requiring either an “extraordinary” justification or
the use of a “rigid mathematical formula” that correlates the strength of required
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justification with the percentage of the departure. Gall, 552 U.S. at 47.
Additionally, we “may not presume that a sentence outside the Guidelines is
unreasonable and must give ‘due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.’” Irey, 612 F.3d at
1187 (quoting Gall, 552 U.S. at 51).
So we may vacate a sentence only if we firmly believe 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.” Irey, 612 F.3d at 1190 (quotation omitted). A court’s
unjustified reliance upon any one factor to the exclusion of other factors indicates
an unreasonable sentence. United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.
2006). Additionally, when “[m]any of the bases for the district court's sentence
were already accounted for in calculating the Guidelines range and nothing
extraordinary about the circumstances of th[e] case” exists, an upward variance
may be substantively unreasonable. United States v. Valdes, 500 F.3d 1291, 1293
n.2 (11th Cir.2007).
But we will not “set aside a sentence merely because we would have decided
that another one is more appropriate.” Irey, 612 F.3d at 1191. “[T]he sentencing
court is permitted to attach ‘great weight’ to one factor over others,” and the
weight it attaches to any factor is “committed to [its] sound discretion.” Rosales-
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Bruno, 789 F.3d at 1254 (quoting Gall, 552 U.S. at 57, and United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)). For example, we have explained
that “[p]lacing substantial weight on a defendant’s criminal record is entirely
consistent with § 3553(a) because five of the factors it requires a court to consider
are related to criminal history.” Id. at 1263. A sentence imposed well below the
statutory maximum penalty is generally an indicator of a reasonable sentence. See
United States v. Baldwin, 774 F.3d 711, 732 (11th Cir. 2014), cert. denied, 135 S.
Ct. 1882 (2015). The party challenging the sentence bears the burden of
demonstrating that the sentence is unreasonable “in light of the entire record, the
§ 3553(a) factors, and the substantial deference afforded to sentencing courts.”
Rosales-Bruno, 789 F.3d at 1256.
Gornitz has not met this burden. Gornitz argues that the district court
improperly weighed the § 3553(a) factors by placing undue emphasis on his failure
to pay any restitution before sentencing, weighing too heavily his prior unscored
convictions that were 19 and 29 years old, and weighing too lightly his gambling
addiction and poor health. But the record indicates that the district court gave full
consideration to the § 3553(a) factors and imposed a sentence within its
permissible discretion. Gonzalez, 550 F.3d at 1324; Crisp, 454 F.3d at 1292.
No evidence indicates that the court either relied solely on a single factor to
the exclusion of others or that it improperly considered bases that had already been
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taken into account in the Guidelines calculations to justify the upward variance.
Gornitz himself acknowledges that the court accounted for his prior criminal
history, failure to pay restitution, and prior career as a lawyer, at the least, in
coming to its sentence, negating any argument that the court relied unjustifiably on
a single factor alone. Crisp, 454 F.3d at 1292. The court recognized that because
of the age of his convictions, Gornitz’s prior criminal activity had not been taken
into account in the guideline calculations, making this a factor that the district
court could choose to consider in imposing an upward variance. Rosales-Bruno,
789 F.3d at 1254; Valdes, 500 F.3d at 1293 n.2.
Gornitz argues that the court imposed a sentence beyond what was necessary
to adequately deter criminal conduct and achieve the purposes of the Guidelines.
But the weight the court placed on each factor, whether great or slight, was fully
within its discretion. Rosales-Bruno, 789 F.3d at 1254. The district court
explicitly accounted for its weighting, noting that it believed the upward variance
was necessary to achieve the Guidelines goals of ensuring restitution and
preventing further criminal conduct in light of Gornitz’s past criminal sentencing
and recidivism. We accord this conclusion the substantial deference it is due and
find the court’s reasoning sufficiently compelling to support the imposed sentence.
Finally, we note that while the imposition of a 38-month sentence did
constitute a major variance in this case, the sentence nonetheless falls well below
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the statutory maximum penalty of 10 years’ imprisonment under 18 U.S.C. § 641.
Baldwin, 774 F.3d at 732.
The district court has provided a justification compelling enough to support
the 20-month variance and reasoning complete enough to allow for meaningful
appellate review. Early, 686 F.3d at 1221. We therefore affirm the sentence as
both procedurally and substantively reasonable.
AFFIRMED.
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