[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 18, 2006
No. 06-12198 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00274-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL JASEN THRIFT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 18, 2006)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Daniel Jasen Thrift appeals his 97-month sentences for using a computer for
the coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b);
traveling in interstate commerce for the purpose of attempting to engage in sex
with a minor, in violation of 18 U.S.C. § 2423(b) and (e); and possessing a firearm
as a felon, in violation of 18 U.S.C. § 1922(g)(1) and (2). Specifically, Thrift
argues the district court either erred in applying an upward departure to his
sentence or that his non-guideline sentence was unreasonable. In addition, Thrift
argues his sentence to a life term of supervised release for his conviction of
possessing a firearm as a felon exceeds the three-year supervised release maximum
for that offense. For the reasons stated below, we conclude the district court
correctly calculated the Guidelines range and imposed a reasonable sentence. The
district court did, however, err when imposing a life term of supervised release for
Thrift’s conviction of possessing a firearm as a felon.
I. DISCUSSION
A. Upward Departure or Variance
Thrift first argues to the extent the district court granted an upward departure
pursuant to the Guidelines, the district court erred as a matter of law. We review
the calculation of the Sentencing Guidelines de novo. United States v. DeVegter,
439 F.3d 1299, 1303 (11th Cir. 2006).
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The district court did not grant an upward departure, but rather varied from
the Guidelines range based on the specific facts of this case. In United States v.
Eldick, we noted that the district court’s sentence was not based on an upward
departure, but was an exercise of its discretion. 443 F.3d 783, 788 n.2 (11th Cir.
2006). Two factors supported this conclusion. First, the district court “did not cite
to a specific guidelines departure provision.” Id. at 788. Second, the district court
judge stated “the guidelines did not ‘adequately take into account the severity of
the damage done by Mr. Eldick’” as the reason for the variance from the
Guidelines range. Id.
Here, the Government admitted that no upward departure provisions applied
to Thrift, but the Government still sought an above-Guidelines sentence. The
district court agreed. At the sentencing hearing, the district court did not cite to
any upward departure provisions in the Guidelines. Instead, the district court noted
the Guidelines range was 60-63 months, but the facts as applied to the 18 U.S.C.
§ 3553(a) factors compelled it to sentence the Defendant above the Guidelines
range. The district court’s reliance on the § 3553(a) factors indicates it was using
its discretion to fashion a sentence outside the Guidelines range. Therefore, the
district court correctly calculated the Guidelines range at 60-63 months, and varied
from that range based on its discretion.
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B. Reasonableness
Next, Thrift argues alternatively that the district court’s variance from the
Guidelines range was unreasonable because it creates disparity among similarly
situated defendants. We review a defendant’s ultimate sentence for reasonableness
in light of the § 3553(a) factors. United Stats v. Winnegear, 422 F.3d 1241, 1246
(11th Cir. 2005). The district court is not required to explicitly consider each of
the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Instead, indications in the record that the district court considered facts and
circumstances falling within the § 3553(a) factors will suffice. Id. at 1329–30.
The party challenging the sentence bears the burden of establishing the sentence is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
The record reflects that the district court carefully considered the § 3553(a)
factors and provided both an adequate explanation and a rational basis for its
determination that an above-Guidelines sentence was appropriate. The district
court cited specific facts and circumstances causing it to question whether the
Guidelines provided adequate deterrence in this case due to Thrift’s history of
engaging in activity similar to which he plead guilty. Moreover, Thrift failed to
adequately support his argument that the variance was unreasonable because he
cited no examples of similarly situated defendants being sentenced differently.
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Based on the above, the district court clearly considered the § 3553(a) factors and
imposed a reasonable sentence. We, therefore, affirm the district court’s 97-month
sentence.
C. Supervised Release
Finally, Thrift argues the district court erred when it imposed a life term of
supervised release for possession of a firearm as a felon because the maximum
term for supervised release for possession of a firearm as a felon is three years,
according to 18 U.S.C. § 922(g).
The district court erred by sentencing Thrift to a life term of supervised
release for possession of a firearm as a felon. In United States v. Rhodes, 177 F.3d
963 (11th Cir. 1999), this Court faced exactly the same situation. The defendant,
in Rhodes, was found guilty for one count of making a false compensation claim
and one count of mail fraud. Id. at 964–65. The district court sentenced Rhodes
to 12 months imprisonment and 3 years of supervised release on each count, with
the terms to run concurrently. Id. at 965. Rhodes appealed the three-year sentence
of supervised release on count one because the statute carried a one-year maximum
term. Id. at 967. This Court agreed that the term of supervised release for count
one exceeded the statutory maximum and vacated that portion of the sentence,
instructing the district court to amend its judgment to impose a one-year term of
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supervised release for that conviction. Id. at 968.
We believe the same result is appropriate in this case. As in Rhodes, the
district court sentenced Thrift to identical terms of supervised release on all counts
with the terms to run concurrently. Also like Rhodes, one of the terms was higher
than the statutory maximum of the counts. See 18 U.S.C. § 3583(b)(2).
Accordingly, we vacate that portion of Thrift’s sentence and instruct the district
court to impose a three-year term of supervised release for that conviction.
II. CONCLUSION
Based on the above, we conclude the district court correctly calculated the
Guidelines and imposed a reasonable sentence based on an application of the §
3553(a) factors. We also conclude that the district court erred in sentencing Thrift
to a life term of supervised release for his conviction of possessing a firearm as a
felon. We, therefore, AFFIRM in part, VACATE in part and REMAND for the
district court’s imposition of a three-year term of supervised release for that
conviction.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
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