[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14950 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 17, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:11-cr-00017-LGW-JEG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JAMES RONALD MCCORMICK,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 17, 2012)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
James Ronald McCormick appeals his 135-month sentence for armed bank
robbery as substantively unreasonable. Specifically, McCormick argues that the
court district did not properly weigh the 18 U.S.C. § 3553(a) factors in imposing a
64-month upward variance.
We review the reasonableness of a defendant’s final sentence only for abuse
of discretion. United States v. Rodriguez, 628 F.3d 1258, 1262 (11th Cir. 2010),
cert. denied, 131 S.Ct. 2166 (2011). First, we ensure that the district court
committed no significant procedural error. Id. at 1264. Second, in reviewing a
sentence for substantive reasonableness, we examine whether the district court
(1) failed to afford consideration to relevant factors that were due significant
weight, (2) gave significant weight to an improper or irrelevant factor, or
(3) committed a clear error of judgment in balancing the proper factors. United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc), cert. denied, 131
S.Ct. 1813 (2011).
McCormick does not argue on appeal that his sentence was procedurally
unreasonable. Rather, he argues that the 64-month upward variance imposed by
the district court was substantively unreasonable. We do not presume that a
sentence outside the guidelines range is unreasonable, and we give due deference
to the district court’s decision that the § 3553(a) factors, on a whole, justify any
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variance. Irey, 612 F.3d at 1187. At the same time, however, the sentencing court
must give “serious consideration” to the extent of any departure and it must offer
sufficient justifications for imposing an unusually harsh sentence. Id. at 1186.
In explaining the reasons for the upward variance, the district court focused
on McCormick’s “remarkably serious” criminal history:
Mr. McCormick, as you know more than anyone, your criminal
history is remarkable. It is remarkably serious. And although the
guidelines score you at a Criminal History Category III, the fact
remains that you have been convicted of murder and convicted of
kidnapping and convicted of escape and convicted of forgery and
convicted of six other misdemeanor criminal offenses. That is
remarkable... and I am not taking into account the nineteen other
arrests that you had on top of those convictions.
Additionally, with respect to the nature and circumstances of the instant offense,
the court noted that McCormick intentionally used a device that “looked like
something terrifying,” a bomb, to intimidate a bank teller who was “six months
pregnant.” The court explicitly ruled that the variance was necessary to reflect the
seriousness of the offense, to promote respect for the law, and to prevent
recidivism.1
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McCormick’s argument that the court inappropriately weighed certain factors is not
supported by the record. While the court specifically referenced the bank teller’s pregnancy and
McCormick’s physical capacity to commit further crimes, the record does not indicate that it
granted these factors any greater weight than other relevant factors. Further, although the court
did disregard McCormick’s possible state sentence, it explained that it was doing so because it
“could not control what happens in the state system.”
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AFFIRMED.
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