          Case: 15-13772   Date Filed: 04/29/2016   Page: 1 of 7


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-13772
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 1:15-cr-00096-WSD-LTW-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

MICHAEL CATALA,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________



                            (April 29, 2016)
               Case: 15-13772     Date Filed: 04/29/2016    Page: 2 of 7


Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Michael Catala appeals his 21-month sentence, imposed as an upward

variance from the applicable Sentencing Guidelines range, after being convicted of

failure to appear as directed by the district court, in violation of 18 U.S.C.

§ 3146(a)(1). Because Catala has failed to show that his sentence was

substantively unreasonable, we affirm.

                                           I.

      An information charged Catala with conspiracy to commit bank fraud and

aggravated identity theft for his alleged participation in a conspiracy to obtain bank

account information to make unauthorized bank withdrawals. The information

specified that, as part of this conspiracy, Catala recruited two bank employees who

could obtain the account information of individuals who used the bank. He then

provided that information to his co-conspirators, who used it to pose as account

holders and make fraudulent withdrawals. Catala ultimately pled guilty to both

counts in the information.

      While on bond awaiting sentencing, Catala fled to California. Police

eventually apprehended him in California for possession with intent to use a

fraudulent credit card. Following this arrest, Catala was charged with failure to

appear and sentenced to a total of 84 months’ imprisonment on his initial


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conspiracy to commit bank fraud and aggravated identity theft charges. Catala

appeared at a separate sentencing proceeding for his failure to appear. There, the

district court sentenced him to 21 months’ imprisonment followed by three years

of supervised release, a sentence above the guidelines range of eight to 14 months

but below the statutory maximum of 60 months. Catala’s objection to the

substantive reasonableness of his sentence was overruled. This is his appeal.

                                         II.

      On appeal, Catala renews his challenge to the substantive reasonableness of

the sentence the district court imposed for his failure to appear. We review the

reasonableness of a sentence under a deferential abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007). Indeed, “it is only the rare sentence that

will be substantively unreasonable.” United States v. Rosales-Bruno, 789 F.3d

1249, 1256 (11th Cir. 2015) (internal quotation marks omitted). The party

challenging the sentence bears the burden of establishing that the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      In reviewing the reasonableness of a sentence, we first ensure that the

district court committed no significant procedural error, and then we examine

whether the sentence was substantively unreasonable based on the totality of the

circumstances. Gall, 552 U.S. at 51. As Catala does not contend that the district




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court committed a procedural error, we need only consider whether his sentence

was substantively unreasonable.

      Under 18 U.S.C. § 3553(a), the district court must impose a sentence

sufficient, but not greater than necessary to comply with the purposes set forth in

§ 3553(a)(2), including promoting respect for the law, deterring criminal conduct,

and protecting the public from the defendant’s future criminal conduct. See 18

U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guidelines range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence if it “(1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an improper or

irrelevant factor, or (3) commits a clear error of judgment in considering the proper

factors.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted).

Thus, deciding whether a district court has imposed a substantively unreasonable

sentence involves an inquiry into whether the statutory factors in 18 U.S.C.

§ 3553(a) support the sentence. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008). “The weight to be accorded any given § 3553(a) factor is a


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matter committed to the sound discretion of the district court.” United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation marks omitted). In

imposing an upward variance, the district court may consider any information

relevant to a defendant’s background, character, and conduct. Tome, 611 F.3d at

1379.

        We find no support for Catala’s contention that his sentence is substantively

unreasonable. As an initial matter, Catala’s sentence of 21 months is well below

the statutory maximum, which is a “consideration favoring its reasonableness.”

Rosales-Bruno, 789 F.3d at 1257. The sentence was also below the government’s

recommendation of 27 months. The record of Catala’s sentencing reveals that,

after considering the nature of and circumstances surrounding Catala’s offense and

his personal history and characteristics, the district court determined that an

upward variance would best promote respect for the law, deter criminal conduct,

and protect the public from future criminal conduct. See 18 U.S.C. § 3553(a)(2).

        The district court was within its discretion to highlight these factors. After

pleading guilty to his crimes, Catala fled to California, where he remained for

several months before being apprehended by police. Catala never turned himself

in. Worse, after he absconded to California, he was arrested for engaging in

criminal conduct similar to that to which he had recently pled guilty. Familiar with

Catala from the previous guilty plea, the district court concluded that Catala’s


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conduct evinced “a serious . . . inability to abide by and respect the law[],” and that

Catala did not truly appreciate the reprehensible nature of his actions. Sentencing

Hr’g Tr. at 21 (Doc. 30).1 As such, the court concluded an upward variance was

necessary to protect the public from further criminal conduct on the part of Catala

and to deter him from engaging in any such conduct in the future. We find no

abuse of discretion in this reasoning, nor does Catala provide one. Indeed, the

sentencing judge is better placed to make these kinds of determinations because he

“sees and hears the evidence, makes credibility determinations, has full knowledge

of the facts and gains insights not conveyed by the record.” Gall, 552 U.S. at 51

(internal quotation mark omitted).

      Catala argues that, at sentencing, the court improperly considered the

conduct of the bank employees he recruited into the conspiracy and the costs law

enforcement incurred in tracking him down after he fled. Even accepting,

arguendo, Catala’s argument that these are improper considerations, we conclude

that his sentence was not substantively unreasonable because there is no evidence

in the record that the court improperly relied on these facts in determining Catala’s

sentence.

      Although it is true that the district court referenced the conduct of the bank

employees and the costs incurred in locating Catala, the sentencing hearing


      1
          “Doc.” refers to the docket entry in the district court record in this case.
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transcript, when read as a whole, makes clear that the court made these references

to highlight Catala’s disregard for the law and the likelihood of his committing

future crimes—factors properly considered under § 3553(a)(2). See 18 U.S.C.

§ 3553(a)(2). The court discussed the bank employees to contrast their conduct

with that of Catala, who “did . . . not even hav[e] the integrity to do what they did,

which was to say I have committed a crime, . . . . there is a consequence and I

accept it.” Sentencing Hr’g Tr. at 14 (Doc. 30). The court acknowledged the cost

incurred in finding Catala to highlight his indifference to the burden his conduct

placed on others. The court made these observations to illustrate Catala’s lack of

respect for the law and to support the court’s conclusion that an upward variance

was necessary to protect the public from Catala and to deter him from committing

further crimes. A district court may not rely on improper factors in sentencing, but

we will not impose a requirement that it refrain from discussing facts and

circumstances arguably outside the scope of § 3553(a) when explaining its

sentencing rationale.

                                          III.

      Upon review of the record and consideration of the parties’ briefs, we

conclude that Catala has failed to demonstrate that his sentence is substantively

unreasonable. We therefore affirm the sentence the district court imposed.

      AFFIRMED.


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