[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-14949 JUNE 5, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 3:11-cr-00012-TJC-MCR-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,
versus
WILLIS ALPHONSO WILLIAMS,
a.k.a. Will,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 5, 2012)
Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Willis Alphonso Williams pled guilty to
passing and uttering false financial instruments, in violation of 18 U.S.C.
§§ 514(a)(2), and the district court varying upward from the prescribed Guidelines
sentence range, which called for a prison sentence of 41 to 51 months, sentenced
Williams to a prison term of 75 months. He now appeals, arguing that his
sentence is both procedurally and substantively unreasonable. We affirm.
I.
Between March and November 2010, Williams and Lashonda Barry were
involved in a scheme to pass counterfeit commercial checks. As part of this
scheme, the pair would locate homeless individuals, use their identifying
information to create counterfeit checks, drive them to various businesses (mostly
Walmart stores), and instruct them to cash the checks. Williams and Barry paid
their recruits $75 for cashing each check. During the course of the enterprise, the
pair attempted to pass 106 counterfeit checks totaling nearly $105,000, while the
actual loss amount was approximately $21,000.
Williams’s criminal record reveals that, beginning in 1985, Williams had
been convicted on at least 30 separate occasions for various crimes. Many of
these offenses were relatively minor, such as driving without a license or with an
improper tag. Many were more serious, however, and included possession of
illegal drugs, theft, battery, giving false names to the police, burglary, and escape
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from jail. On one occasion, Williams was convicted in federal district court for an
offense nearly identical to the one here, namely, recruiting persons to negotiate
counterfeit checks.
In preparing the presentence investigation report and calculating the
Guidelines sentence range for Williams’s offense, the court’s probation officer
assigned the offense a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1).
The officer added 8 levels under § 2B1.1(b)(1)(E) because the amount of intended
loss exceeded $70,000; added 4 levels under § 3B1.1(a) because Williams was an
organizer or leader of the criminal activity; and subtracted 3 levels under § 3E1.1
for acceptance of responsibility. Based on five of Williams’s prior convictions,
the probation officer placed him in a criminal history category of V, which,
combined with the total offense level of 16, yielded a sentence range of 41 to 51
months in prison.
At the sentencing hearing, the district court provided a comprehensive
explanation for why a sentence above the sentence range was appropriate. It
discussed the seriousness of Williams’s offense, observing that he played a major
role in the scheme, that he recruited homeless persons, and that the offense
involved over 100 counterfeit checks, occurred over a period of time, and would
not have stopped but for the intervention of law enforcement. The court also
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discussed at length Williams’s extensive criminal history, characterizing it as
“fairly remarkable” and stressing the fact that he was previously convicted in
federal court for a nearly identical check fraud scheme. The court further stated
that the Guidelines were “not quite there” and “remarkably forgiving for repeat
economic crimes offenders.” It then sentenced Williams to 75 months in prison to
be followed by five years of supervised release.
II.
We review the reasonableness of a sentence under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). First, we determine whether the district court committed
any “significant procedural error” and, second, whether the sentence was
“substantively reasonable under the totality of the circumstances.” United States
v. Turner, 626 F.3d 566, 573 (11th Cir. 2010). “A sentence may be procedurally
unreasonable if the district court improperly calculates the Guidelines sentence
range, treats the Guidelines as mandatory rather than advisory, fails to consider the
appropriate statutory factors, selects a sentence based on clearly erroneous facts,
or fails to adequately explain the chosen sentence.” United States v. Gonzalez,
550 F.3d 1319, 1323 (11th Cir. 2008). “The review for substantive
unreasonableness involves examining the totality of the circumstances, including
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an inquiry into whether the statutory factors [set out in 18 U.S.C.] § 3553(a)
support the sentence in question.” Id. at 1324.1
If the district court determines that a sentence outside the prescribed
sentence range is appropriate, “it must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the
variance.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)
(quotation omitted). However, we only reverse a sentence due to a variance “if we
are left with the definite and firm conviction 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.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation
omitted).
Williams alleges only one procedural error, namely, that the district court
considered an improper factor in imposing the variance by expressing its concern
that the Guidelines were overly lenient towards economic-crime offenders. We
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Under § 3553(a), a sentencing court must impose a sentence that is “sufficient, but not
greater than necessary” to comply with the purposes of sentencing set forth in § 3553(a)(2), which
include 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
further crimes. 18 U.S.C. § 3553(a)(2). Other factors to be considered in imposing a sentence
include the nature and circumstances of the offense, the history and characteristics of the defendant,
the available sentences, the applicable guideline range, the need to avoid unwarranted sentence
disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
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need not decide the merits of this issue, however, because the court’s statements
regarding the Guidelines’ leniency formed only a minor part of its explanation for
the sentence. The court placed much more emphasis on the seriousness of
Williams’s offense and his extensive criminal history, which, as discussed below,
amply supported the variance in question. Thus, the court’s disagreement with the
applicable Guidelines, even if improper, at most constituted harmless error. See
United States v. Jones, 1 F.3d 1167, 1171 (11th Cir. 1993) (“A sentencing error is
harmless if the record as a whole shows that the error did not affect the district
court’s selection of the sentence imposed.”); see also United States v. Williams,
456 F.3d 1353, 1371-72 (11th Cir. 2006) (holding that the district court’s
consideration of an impermissible factor at sentencing did not constitute harmless
error because the court devoted “the overwhelming majority of its explanation” to
the improper factor), abrogated on other grounds by Kimbrough v. United States,
552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
As to substantive unreasonableness, Williams argues that nothing
extraordinary about his case justified a major variance, as the Guidelines sentence
range had already accounted for the seriousness of his offense and his criminal
history. However, while the sentence range accounted for several aggravating
factors, such as the loss amount and William’s leadership role in the offense, the
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district court could still consider these factors as a basis for varying upwards. See
United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010) (stating that a
district court can impose a variance based on factors that it had already considered
in applying a guideline enhancement), cert. denied, 131 S.Ct. 2166 (2011).
Moreover, the district court considered other aggravating circumstances that
were not reflected in the sentence range. Specifically, the court noted that
Williams and his accomplice used homeless persons to carry out their scheme and
that the offense involved over 100 counterfeit checks and occurred over a
prolonged period of time. Moreover, the court heavily emphasized Williams’s
criminal history, which included a number of serious offenses and extended far
beyond the five prior convictions used to calculate his criminal history score under
the Guidelines. Thus, in light of the aggravated nature of Williams’s offense and
his extensive criminal history, the court could reasonably conclude that no
sentence less than 75 months would adequately reflect the seriousness of the
crime, promote respect for the law, provide just punishment, deter criminal
conduct, and protect the public from Williams’s further crimes. See 18 U.S.C.
§ 3553(a)(1)-(2); Shaw, 560 F.3d at 1239-41 (upholding as reasonable a
120-month sentence that significantly exceeded the guideline range of 30 to 37
months, in large part due to the defendant’s extensive criminal history). We also
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note that Williams’s sentence of 6.25 years fell far below the statutory maximum
sentence of 25 years, which further indicates its substantive reasonableness. See
Gonzalez, 550 F.3d at 1324 (concluding that a sentence was reasonable in part
because it was well below the statutory maximum).
Because Williams’s sentence is procedurally and substantively reasonable,
it is
AFFIRMED.
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