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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-13327
Non-Argument Calendar
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D. C. Docket No. 2:11-cr-00080-JHH-HGD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESMOND CHAD PRUITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(September 14, 2012)
Before HULL, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Desmond Chad Pruitt, who pleaded guilty to being a felon in
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possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), appeals his 72-
month sentence. No reversible error has been shown; we affirm.
We review a final sentence for procedural and substantive reasonableness .
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence
might be procedurally unreasonable if the district court fails to explain adequately
the chosen sentence. Id. We evaluate the substantive reasonableness of a sentence
under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The party challenging the
reasonableness of the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both the record and the 18 U.S.C. § 3553(a) factors.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“Sentences outside the guidelines are not presumed to be unreasonable, but
we may take the extent of any variance into our calculus.” United States v. Shaw,
560 F.3d 1230, 1237 (11th Cir. 2009) (citation omitted). When the district court
decides after “serious consideration” that a variance is in order, the court is
required to explain adequately why that variance is appropriate in a particular case
with sufficient justifications. Id. (quotation omitted).
Because of its institutional advantage in making sentence
determinations, a district court has considerable discretion in deciding
whether the § 3553(a) factors justify a variance and the extent of one
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that is appropriate. We must give its decision due deference. We may
vacate a sentence because of the variance only 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. However, that we might reasonably have
concluded that a different sentence was appropriate is insufficient to
justify reversal.
Id. at 1238 (citations and quotations omitted).
We conclude that Pruitt’s sentence is reasonable. Although his 72-month
sentence varied upward from the top of the advisory guidelines range by 26
months, the sentence was well below the 10-year statutory maximum he faced.
See 18 U.S.C. § 924(a)(2); United States v. Valnor, 451 F.3d 744, 751-52 (11th
Cir. 2006) (affirming an upward variance and observing that the ultimate sentence
was appreciably below the statutory maximum).
Pruitt argues that the district court gave undue weight to testimony
presented at the sentencing hearing about his threats to law enforcement and paid
little to no attention to the offense of conviction. But “[t]he weight to be accorded
any given § 3553(a) factor is a matter committed to the sound discretion of the
district court, and we will not substitute our judgment in weighing the relevant
factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation
and citation omitted). In addition, the district court explained its decision to apply
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an upward variance, citing its reliance on several of the § 3553(a) factors,
including the history and characteristics of the defendant, the nature and
circumstances of the offense, the nature and extent of Pruitt’s criminal history, and
the need to protect the public from further crimes because Pruitt posed a
significant danger to society.
Pruitt’s argument that the court failed to consider his arguments in
mitigation -- that he had just been shot when he made threats to police and that he
was compliant and non-combative once in custody -- also lacks merit. The district
court specifically stated that it had considered the nature and circumstances of the
particular offense. See 18 U.S.C. § 3553(a)(1). And contrary to Pruitt’s assertion,
the district court was permitted to consider Pruitt’s extensive prior criminal history
at sentencing, even though his previous offenses were included in his criminal
history and were therefore part of the calculation of his guideline range. See
United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (concluding that
the district court may consider factors that already have been addressed by the
Guidelines when determining a reasonable sentence, including information on the
background, character, and conduct of the defendant).
Based on the evidence in the record, we conclude that Pruitt’s sentence was
reasonable and that the district court adequately justified its upwardly variant
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sentence. Although Pruitt disagrees with the district court’s assessment of several
of the § 3553(a) factors, we -- on this record -- cannot say that the court’s careful
consideration of the factors and its conclusion were unreasonable.
AFFIRMED.
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