Case: 11-15869 Date Filed: 09/21/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15869
Non-Argument Calendar
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D.C. Docket No. 3:09-cr-00322-TJC-TEM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll l Plaintiff-Appellee,
versus
DANIEL WILLIAM VIGIL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 21, 2012)
Before PRYOR, JORDAN and BLACK, Circuit Judges.
Case: 11-15869 Date Filed: 09/21/2012 Page: 2 of 4
PER CURIAM:
Daniel Vigil appeals his 135-month sentence imposed after pleading guilty
to two counts of bank robbery in violation of 18 U.S.C. § 2113(a). On appeal,
Vigil argues that the district court imposed sentences that were procedurally and
substantively unreasonable.
We review a sentence imposed by the district court for reasonableness,
using a two-step deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 46, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); United States v.
Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). The party challenging the sentence
has the burden to establish that the sentence is unreasonable. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We first must determine that the “district court committed no significant
procedural error.” Gall, 552 U.S. at 51, 128 S.Ct. at 597. Significant procedural
errors include improperly calculating the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, basing a sentence on
clearly erroneous facts, or failing to provide an adequate explanation for the
chosen sentence. Id. If a district court applies a variance from the guidelines, the
“justification for [it] must be sufficiently compelling to support the degree of the
variance.” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir.2010) (en banc)
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(quotation omitted), cert. denied, 131 S.Ct. 1813 (2011).
If the district court’s decision is procedurally reasonable, our analysis then
turns to the substantive reasonableness of the sentence. Gall, 552 U.S. at 46, 128
S.Ct. at 594. We review the totality of the facts and circumstances to gauge for
substantive error. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010)
(en banc), cert. denied, 131 S.Ct. 1813 (2011). Under the deferential
abuse-of-discretion standard, we will remand for resentencing only when “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. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation omitted).
In this case, Vigil’s sentence was procedurally reasonable because the
district court correctly calculated the advisory guideline range, adequately
considered the § 3553(a) factors, and sufficiently explained its rationale for an
upward variance. See Gall, 552 U.S. at 51. Although the district court asked the
probation officer to calculate an alternative guideline range, the record does not
reflect that the district court actually relied upon this alternative calculation in
formulating Virgil’s sentence. Vigil has not met his burden of demonstrating
procedural unreasonableness.
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Regarding Virgil’s claim of substantive unreasonableness, the court
explicitly considered the § 3553(a) sentencing factors, including the characteristics
and conduct of the defendant, and that the sentence be sufficient but not greater
than necessary to achieve the purposes of sentencing. The sentencing court
observed that Vigil engaged in a “crime spree” by committing four bank robberies
in a six-day span, all while on supervised release for a previous armed bank
robbery. Vigil has not met his burden to show that his 135-month sentence was
substantively unreasonable.
AFFIRMED.
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