[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 24, 2007
No. 06-16138 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00124-CR-4-BAE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM D. MORRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 24, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Appellant William D. Morris appeals his 84-month sentence for wire fraud,
in violation of 18 U.S.C. § 1343; mail fraud, in violation of 18 U.S.C. § 1341; and
bank fraud, in violation of 18 U.S.C. § 1344. On appeal, he argues that the district
court erred by not providing notice of its intent to exceed the applicable guideline
range and also contends that his sentence is unreasonable.1 We address each issue
in turn.
I.
We review “the district court's findings of fact for clear error and its
application of the sentencing guidelines to those facts de novo.” United States v.
Humber, 255 F.3d 1308, 1311 (11th Cir. 2001). Where a defendant does not object
before the district court, review is for plain error. See United States v. Rodriguez,
398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545 U.S. 1127, 125 S. Ct. 2935
(2005). An appellate court will, in its discretion, correct plain error where there is
(1) error, (2) that is plain, and (3) that affects substantial rights, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. (citation omitted). “A plain error is an error that is obvious and is
clear under current law.” See United States v. Humphrey, 164 F.3d 585, 588 (11th
Cir. 1999) (citation and quotation marks omitted). An error cannot be plain in the
1
Morris also asserts that the district court erred by not granting a downward departure for
over-representation of criminal history category. Because nothing in the record suggests that the
district court believed it lacked the authority to grant a downward departure, we lack jurisdiction to
review this argument. See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
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absence of controlling authority. Id. at 588. The burden of proving prejudice rests
with the non-objecting defendant. See United States v. Olano, 507 U.S. 725, 735,
113 S.Ct. 1770, 1778 (1993).
Under Fed.R.Crim.P. 32(h),
Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or
in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a
departure.
See also Burns v. United States, 501 U.S. 129, 138, 111 S.Ct. 2182, 2187 (1991)
(same). Advance notice, however, does not apply to variances from advisory
guidelines. United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006),
petition for cert. filed (U.S. Oct. 26, 2006) (No. 06-7517).
In determining whether a decision to sentence a defendant above the
guideline range is a variance or a departure, we have considered two factors. See
United States v. Eldick, 443 F.3d 783, 788 & n.2 (11th Cir.), cert. denied, 127 S.
Ct. 251 (2006). First, whether the sentencing court cited to a specific departure
provision in the guidelines and, second, whether the district court noted the
inadequacy of the guidelines range. Id.
Although the district court referred to the upward increase as a departure
three times, it never cited to a specific guideline departure provision. Furthermore,
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the court noted the inadequacy of the guidelines range, stating that it did not
adequately account for the “tragedies [Morris left in his . . .] wake.” More
specifically, the court alluded to the numerous victims; the losses not included in
the total amount of loss; Morris’s history of fraud; and prior lenient sentencing
treatment. This suggests that the increase was based solely on § 3553(a) factors
and, therefore, was a variance – not a departure. See Eldick, 443 F.3d at 788 &
n.2. Accordingly, we conclude that advance notice was not required and error,
much less plain error, did not occur. See Irizarry, 458 F.3d at 1212; Rodriguez,
398 F.3d at 1298.
II.
Whether a sentencing factor is impermissible is a question of law we review
de novo. United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), petition
for cert. filed (U.S. Oct. 19, 2006) (No. 06-7352). “If such an error exists and was
preserved for appeal, we will vacate the sentence and remand, unless the error is
harmless.” Id. at 1362.
When reviewing a sentence imposed by the district court, we first ensure that
the district court correctly calculated the guideline range. Winingear, 422 F.3d at
1245. Then, we review the sentence for reasonableness in light of the 18 U.S.C.
3553(a) factors and determine whether the sentence fails to achieve the purposes of
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sentencing set forth in that statute. United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006). The district court need not recite a laundry list of the § 3553(a)
factors; some indication in the record that the court adequately and properly
considered the applicable advisory guidelines range and the § 3533(a) sentencing
factors is sufficient. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
“In some cases it may be appropriate to defer to the Guidelines; in others, not.”
United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006).
We review only the final sentence for reasonableness, rather than each
individual decision made during the sentencing process, Winingear, 422 F.3d at
1245, and “[t]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“[A] sentence can be unreasonable, regardless of length, if the district court's
selection of the sentence was substantially affected by its consideration of
impermissible factors.” Williams, 456 F.3d at 1361 (footnote omitted). “[T]he
party challenging the sentence bears the initial burden of establishing that the
district court considered an impermissible factor at sentencing.” Id.
The district court enhanced Morris’s sentence because the guidelines did not
sufficiently represent the severity of the victims’ suffering. As the court noted,
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several of the victims’ businesses could plausibly fail in the future. Although the
attorneys’ fees paid by victims and Morris’s prior lenient sentencing may also have
been considered, Morris fails to cite a single case from this circuit holding that
these are impermissible sentencing factors. Without clear precedent, the error, if
any, was not plain. See Humphrey, 164 F.3d at 588.
Considering that Morris caused multiple individuals to suffer almost one
million dollars in losses, he had previously been convicted of multiple counts of
wire fraud, and he was facing statutory maximums of thirty years imprisonment on
the bank fraud count and twenty years apiece on the mail and wire fraud counts, we
conclude that a sentence of 84 months imprisonment, while outside the advisory
guideline range, is not outside the range of reasonableness. See Talley, 431 F.3d at
788. Accordingly, we affirm Morris’s sentence.
AFFIRMED.
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