[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12824 ELEVENTH CIRCUIT
DECEMBER 11, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 09-00015-CR-1-MMP-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARBARA JOANN SAPSIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 11, 2009)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Barbara Sapsin appeals her 24-month sentence, which was imposed
following her admission to violating the conditions of her supervised release for
previous convictions of embezzlement of public money, property, or records, in
violation of 18 U.S.C. § 641, and aggravated identity theft, in violation of 18
U.S.C. § 1028A. On appeal, Sapsin argues that her sentence was unreasonable
because the district court: failed to explain it reasons for the sentence, failed to take
into account the Sentencing Guidelines policy statements and mandatory
sentencing considerations at 18 U.S.C. § 3553(a), and impermissibly considered a
factor not expressly listed in § 3553(a).
We review a sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). Out reasonableness review is deferential, and the party challenging 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.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006), citing United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). In considering the reasonableness of a sentence,
we employ an abuse-of-discretion standard “[r]egardless of whether the sentence
imposed is inside or outside the Guidelines range.” Gall v. United States, 552
U.S. 38, ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We review de novo, as
a question of law, whether a factor considered by the district court in sentencing is
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impermissible. Velasquez Velasquez, 524 F.3d at 1252. (quotation omitted).
When revoking a defendant’s term of supervised release, 18 U.S.C.
§ 3583(e) instructs courts to consider certain § 3553(a) factors to determine an
appropriate sentence. See 18 U.S.C. § 3583(e). Specifically, courts are directed to
consider: “the nature and circumstances of the offense and the history and
characteristics of the defendant”; the need for the sentence imposed to “afford
adequate deterrence to criminal conduct” and “protect the public from further
crimes [committed by] the defendant”; the need for the sentence to “provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner”; applicable guidelines or
policy statements issued by the Sentencing Commission; any pertinent policy
statements; the need to avoid unwarranted sentence disparities; and the need to
provide restitution to victims. See 18 U.S.C. § 3583(e), citing 18 U.S.C.
§ 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). The district court need not discuss or
explicitly state each factor on the record, but an acknowledgment by the district
court that it has considered the defendant’s arguments and the § 3553(a) factors
will suffice. United States v. Gonzalez, 550 F.3d 1319, 1329-30 (11th Cir. 2008).
We will vacate a sentence if we are left “with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
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the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted). If the sentence imposed lies
outside of the guideline range, the degree of the variance is relevant to the
substantive reasonableness of the sentence and, in general, “a major departure
should be supported by a more significant justification than a minor one.” Gall,
552 U.S. at __, 128 S.Ct. at 597. Nonetheless, in reviewing such a sentence, the
appellate court “may not apply a presumption of unreasonableness.” Id. A district
court has “considerable discretion” in deciding whether the § 3553(a) factors
justify a variance, and it need not provide “extraordinary justification” for a
sentence that lies outside the guideline range. United States v. Shaw, 560 F.3d
1230, 1238 (11th Cir.) (quotation omitted), cert. denied 129 S.Ct. 2847 (2009).
After review of the parties’ briefs and careful consideration of the record, we
affirm. The district court specifically advised Sapsin that, although the advisory
guideline range for her sentence was six to 12 months, she could potentially
receive up to 24 months in prison. The court found that a variance was warranted.
The court based its decision on a consideration of the policy statements, the
§ 3553(a) mandatory sentencing factors, and Sapsin’s own admission that she
committed violations of the conditions of supervised release.
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There is no basis on which to conclude that the district court made a clear
error in judgment in weighing the relevant § 3553(a) factors against the undisputed
record. See Shaw, 560 F.3d at 1237-1238; see also Gall, 552 U.S. at __, 128 S.Ct.
at 597 (the reviewing court “must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.”). The
district court did not abuse its discretion. We therefore affirm.
AFFIRMED.
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