                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14423         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 30, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 9:10-cr-80069-WJZ-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus



GILBERTO JORDAN,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (June 30, 2011)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
      Gilberto Jordan appeals his 120-month sentence, imposed above his

applicable guidelines range of 0 to 6 months, after pleading guilty to unlawful

procurement of citizenship in violation of 18 U.S.C. § 1425. On appeal, Jordan

argues the district court’s elevation of his sentence to the statutory maximum of

120 months was unreasonable. The district court imposed the statutory maximum

based on an upward departure under U.S.S.G. § 5K2.0(a), and stated it would have

imposed the same sentence under an upward variance. We affirm Jordan’s

sentence on the basis of an upward departure, and thus need not decide whether a

variance was appropriate.

      Under U.S.S.G. § 5K2.0(a)(3), a district court may depart upward “in an

exceptional case, even though the circumstance that forms the basis for the

departure is taken into consideration in determining the guideline range, if the

court determines that such circumstance is present in the offense to a degree

substantially in excess of . . . that which ordinarily is involved in that kind of

offense.” A departure may also “be warranted in the exceptional case in which

there is present a circumstance that the Commission has not identified in the

guidelines but that nevertheless is relevant to determining the appropriate

sentence.” U.S.S.G. § 5K2.0(a)(2)(B).




                                           2
           We evaluate a district court’s upward departure from the guidelines range

using a three-step approach. United States v. Miller, 78 F.3d 507, 509-10 (11th

Cir. 1996). “First, we review de novo the decision as to whether the guidelines

adequately consider a particular factor. Second, if the factor was not adequately

considered, we examine whether consideration of this factor is consistent with the

goals of the Sentencing Guidelines. Finally, we review the departure for

reasonableness.” Id. at 510 (internal citations omitted). “When a sentencing court

departs from the Guidelines, a reviewing court determines the reasonableness of

the departure in light of the factors to be considered in imposing a sentence, as

stated in 18 U.S.C. § 3553, and the reasons the district court provided for

departing from the Guidelines.” United States v. Melvin, 187 F.3d 1316, 1322–23

(11th Cir. 1999).

       The district court did not err in departing upward to the statutory

maximum.1 First, nothing in the guidelines contemplated the particular factor

relied on by the district court—concealment of Jordan’s membership in the

military and his participation in a massacre to fraudulently obtain United States

citizenship. As the district court explained, the case was “well beyond the



       1
          Jordan does not argue that an upward departure of any degree was impermissible, and
in fact seems to concede a 16-level upward departure would have been appropriate.

                                               3
heartland of the applicable guidelines,” because “a case with these particular facts

is virtually unprecedented.” See Melvin, 187 F.3d at 1320 (“[D]istrict courts have

an institutional advantage over appellate courts in determining whether a case is

outside the heartland, and thus their decisions are entitled to substantial

deference.”). Second, “consideration of this factor is consistent with the goals of

the Sentencing Guidelines.” Miller, 78 F.3d at 510.2 We have explained that

upward departures under § 5K2.0(a) “are allowed for acts of misconduct not

resulting in conviction, as long as those acts, whether or not relevant conduct in

the section 1B1.3 sense, relate meaningfully to the offense of conviction.” United

States v. Ellis, 419 F.3d 1189, 1193 n.4 (11th Cir. 2005) (citation and emphasis

omitted). By concealing his role in the murders, Jordan was able to fraudulently

obtain United States citizenship and a virtual safe-haven. Third, the upward

departure was reasonable. Melvin, 187 F.3d at 1322–23. The record indicates the

court properly considered the § 3553(a) factors in determining Jordan’s sentence.

The district court’s explanation was also sufficient to support the degree of the

departure, as it is difficult to imagine “any more serious basis for immigration




       2
           “A court should evaluate whether the departure is consistent with the goals of the
guidelines, whether as part of the determination that the Commission adequately considered a
factor, or as a second step.” Id.

                                               4
fraud than an individual’s concealment of his prior participation in a mass murder

of innocent civilians.”

      Because we conclude the district court did not err in imposing an upward

departure to the statutory maximum, we affirm Jordan's sentence.

      AFFIRMED.




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