                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-16054                ELEVENTH CIRCUIT
                                                             AUGUST 10, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                    D. C. Docket No. 09-00025-CR-HL-5

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

GARY HUTCHESON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                      _________________________

                              (August 10, 2010)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     Gary Hutcheson appeals his total sentence of 60-months’ imprisonment,
imposed above the applicable guideline range of 41-51 months, following his

guilty plea to 5 counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and 5

counts of money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I) and 2.

The convictions arose out of a scheme where Hutcheson and a codefendant

claimed to be placing investors’ money into a hedge fund when actually they

converted much of the money for their own personal use.

      On appeal, Hutcheson argues that his total sentence was procedurally

unreasonable because the district court failed to give an adequate explanation for

the upward variance. He also submits that his total sentence was substantively

unreasonable because the sentence was greater than necessary to comply with the

purposes of § 3553(a)(2), and the court did not properly consider the § 3553(a)

factors. In addition, he argues that the restitution order of $1,618,000 should have

been reduced by $576,000 in legitimate trading losses.

      We find no reversible error. At the sentencing hearing the district court

explicitly stated that it considered the § 3553(a) factors, and adequately explained

why a sentence above the top of the applicable guideline range was necessary to

accomplish the goals of the statute. Therefore, the sentence was procedurally

reasonable. Under the totality of the circumstances, Hutcheson’s sentence was

substantively reasonable because it was not greater than necessary to achieve the



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purposes of § 3553(a), and the court considered the § 3553(a) factors. Pugh, 515

F.3d at 1191.

      With reference to restitution, based on a review of the record, the district

court did not err in finding that the trading losses were a direct result of

Hutcheson’s criminal conduct in the course of the entire scheme to defraud

investors. Accordingly, the court properly determined that the trading losses,

totaling $576,000, should be included in the restitution.

       AFFIRMED.




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