[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11754 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 3, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00204-WSD-ECS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
BRANDON RICHARD DELANCY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 3, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Brandon Richard Delancy appeals his 36-month sentence on one of his two
counts of conviction, which varied downward from his applicable guideline range.
Delancy pled guilty to one count of access device fraud, in violation of 18 U.S.C.
§ 1029(a)(5). Delancy also pled guilty to one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1), and the district court sentenced him to the
mandatory 24 months’ imprisonment on that count, to run consecutively to the
sentence he now appeals. Delancy does not appeal the sentence on the § 1028A
offense. On appeal, Delancy argues that the district court’s failure to adequately
account for Delancy’s greater likelihood to be victimized while in prison made his
sentence for the § 1029 offense substantively unreasonable.
We review the reasonableness of a sentence, regardless of whether the
sentence imposed is inside or outside the Guidelines range, under a deferential
abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128
S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We reverse only if “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. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813
(2011). Objections to a sentence raised for the first time on appeal are reviewed
2
for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). The
burden of establishing that a sentence is unreasonable lies with the party
challenging the sentence. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008).
Procedural reasonableness includes whether the district court properly
calculated the guideline range, treated the Guidelines as advisory, considered the §
3553(a) factors, did not select a sentence based upon clearly erroneous facts, and
adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.
Once we determine that a sentence is procedurally sound, we examine whether the
sentence was substantively reasonable in light of the totality of the circumstances
and the § 3553(a) factors. Id.
A sentence may be substantively unreasonable where a district court
“unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent
§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on
impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.
2009). However, “[t]he weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court.” United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). A sentence imposed well below
the statutory maximum penalty is an indicator of a reasonable sentence. United
3
States v. Gonzales, 550 F.3d 1319, 1324 (11th Cir. 2008).
The Sentencing Guidelines state:
Physical condition or appearance, including physique, may be
relevant in determining whether a departure is warranted, if the
condition or appearance, individually or in combination with other
offender characteristics, is present to an unusual degree and
distinguishes the case from the typical cases covered by the
guidelines.
U.S.S.G. § 5H1.4. Cf. Koon v. United States, 518 U.S. 81, 111-12, 116 S.Ct.
2035, 2053, 135 L.Ed.2d 392 (1996) (holding that the district court did not abuse
its discretion by downwardly departing from the defendants’ guideline ranges in
part because of their susceptibility to abuse in prison).
Although Delancy argues that his 36-month sentence on the § 1029 count
was substantively unreasonable, his arguments regarding the applicability of
U.S.S.G. § 5H1.4 suggest that he also challenges the procedural reasonableness of
that sentence. However, in this case, Delancy’s 36-month sentence was
procedurally reasonable. The district court properly calculated Delancy’s
guideline range, treated the Guidelines as advisory, based the sentence on
undisputed facts set forth in the PSI, and adequately explained the chosen
sentence. Moreover, the record indicates that the court expressly considered the
§ 3553(a) factors in determining Delancy’s sentence. Finally, the district court
4
took into account Delancy’s argument about potential mitigating factors, including
his age, medical conditions, and vulnerability to abuse while in prison, in arriving
at a sentence of 36 months for the § 1029 count .
The district court’s failure to depart downward from Delancy’s guideline
range, pursuant to U.S.S.G. § 5H1.4, did not result in a procedurally unreasonable
sentence. The district court did not rule as a matter of law that it lacked the
discretion to depart downward on this basis. Delancy never moved for a
downward departure and specifically stated that he did not object to the court’s
guideline calculations. See generally United States v. Dudley, 463 F.3d 1221,
1228 (11th Cir. 2006) (explaining that a refusal to depart is unreviewable unless
the court incorrectly believed that it lacked authority to depart). Additionally,
although the court did not address a downward departure, the court did vary
downward 21 months from the bottom of Delancy’s guideline range. As a result,
Delancy has not demonstrated that his sentence was procedurally unreasonable.
Delancy’s 36-month sentence for Count 13 was also substantively
reasonable. His sentence was appropriate to promote respect for the law, provide
just punishment, provide adequate deterrence, and protect the public from further
crimes. See 18 U.S.C. § 3553(a)(2)(A)-(C). Moreover, his sentence was
significantly below his guideline range. Delancy’s sentence also reflected the
5
nature and circumstances of the offense and his criminal history, background, and
personal characteristics. See 18 U.S.C. § 3553(a)(1).
Although Delancy argues that the district court refused to consider his
arguments regarding his vulnerability to abuse in prison and wrongly dismissed
his expert’s testimony regarding those issues, the record shows that the district
court actively questioned Delancy’s expert regarding his opinion, took into
account Delancy’s vulnerability in prison in determining his below-guideline
sentence, and included in the judgment and commitment order recommendations
that the Bureau of Prisons evaluate Delancy’s physical condition and medical
needs in determining the appropriate designation for service of his sentence. The
fact that the district court chose to give more weight to other factors, including
Delancy’s age, medical condition, and the need for Delancy’s sentence to be
consistent with sentences for similar offenses, does not mean that the court abused
its discretion in sentencing Delancy. See Williams, 526 F.3d at 1322.
AFFIRMED.
6