                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             Nov. 18, 2009
                              No. 09-11437                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 08-14022-CR-JEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

LONNIE WAITE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                            (November 18, 2009)

Before DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.

PER CURIAM:

     Appellant Lonnie Waite appeals his 240-month sentence, imposed after he
pled guilty to three counts of transporting or shipping child pornography in

violation of 18 U.S.C. § 2252(a)(1). The sentence was in excess of the applicable

guideline range of 151 to 188 months’ imprisonment, but was less than the

government’s request for 360 months. Waite raises the issue of procedural

unreasonableness because he contends that the court’s explanation for his sentence

was insufficient. Also, Waite argues that his sentence was substantively

unreasonable because the court failed to properly weigh the sentencing factors in

18 U.S.C. § 3553(a). Waite contends that a reasonable sentence would have been

within the guideline range.

      Sentencing decisions are reviewed on appeal for reasonableness. Gall v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 594, 169 L. Ed. 2d 445 (2007). A

review for reasonableness requires us to apply a deferential abuse-of-discretion

standard to the sentence of the district court, “whether inside, just outside, or

significantly outside the Guidelines range . . . .” Id. at ___, 128 S. Ct. at 591. Such

a review requires us to invoke the following two-step process to evaluate

procedural and substantive reasonableness:

      It must first ensure that the district court committed no significant
      procedural error, such as failing to calculate (or improperly
      calculating) the Guidelines range, treating the Guidelines as
      mandatory, failing to consider the § 3553(a) factors, selecting a
      sentence based on clearly erroneous facts, or failing to adequately
      explain the chosen sentence-including an explanation for any


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         deviation from the Guidelines range. Assuming that the district court’s
         sentencing decision is procedurally sound, the appellate court should
         then consider the substantive reasonableness of the sentence imposed
         under an abuse-of-discretion standard.


Id. at ___, 128 S. Ct. at 597. The substantive reasonableness of a sentence is

reviewed under the deferential abuse of discretion standard, considering the totality

of the circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.

2008).

         Procedural soundness assumes that “[w]here the judge imposes a sentence

outside the Guidelines, the judge will explain why he has done so.” Rita v. United

States, 551 U.S. 338, 357, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007). A

greater departure from the applicable guideline range should be “supported by a

more significant justification” than a smaller departure. Gall, 552 U.S. at ___, 128

S. Ct. at 597. The judge’s statement, however, may be brief and is to be evaluated

in conjunction with the record and context of the case. Rita, 551 U.S. at 358-9;

127 S. Ct. at 2469. “The sentencing judge should set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.” Id. at 356, 127 S. Ct.

at 2468.

         In arriving at a substantively reasonable sentence, the district court must



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give consideration to the sentencing factors listed in 18 U.S.C. § 3553(a). United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Although the court must

consider the 3553(a) factors in its sentencing decision, it need not “state on the

record that it has explicitly considered each of the § 3553(a) factors or . . . discuss

each of [them].” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). On

appeal, this Court must determine if the sentence “fail[ed] to achieve the purposes

of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788. “If the

sentence is outside the guidelines range, this Court may consider the deviation, but

must give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance.” United States v. Williams, 526 F.3d

1312, 1322 (11th Cir. 2008) (internal quotation marks omitted). Further, we have

acknowledged that departures from the Guidelines are to be reviewed for

reasonableness guided by the § 3553(a) factors. United States v. Winingear, 422

F.3d 1241, 1246 (11th Cir. 2005). Extraordinary circumstances are not required to

justify a sentence outside the guideline range, Livesay, 525 F.3d at 1090, and

“there is a range of reasonable sentences from which the district court may

choose.” Talley, 431 F.3d at 788. The burden of establishing that the sentence is

unreasonable considering both the record and the § 3553(a) factors is on the party

challenging the sentence. Id.



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      We conclude from the record that Waite has failed to meet his burden to

show that his sentence was procedurally or substantively unreasonable. The

court’s statement, although brief, did set forth its reasons for sentencing Waite

above the guideline range. When considered in context with the record, a reasoned

basis for the decision is clear, and thus, there is no procedural error in the sentence.

In light of all the evidence that was presented at sentencing and the judge’s

statement that he had considered the § 3553(a) factors, we conclude that the

sentence is substantively reasonable. Waite has not shown that the district court

abused its discretion in imposing a sentence above the Guidelines. Accordingly,

we affirm Waite’s sentence.

      AFFIRMED.




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