                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4661


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAIR FRANCIS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:05−cr−00451−AW−4)


Argued:   March 26, 2009                  Decided:   May 18, 2009


Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Greenbelt,
Maryland, for Appellant. Chan Park, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.    ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Gina L.
Simms, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jair       Francis     was    convicted           by   a    jury         of   one    count    of

conspiring to violate the Mann Act, 18 U.S.C. § 371 (“Count

One”),    one     count     of    conspiracy          to    harbor        illegal        aliens,    8

U.S.C. § 1324(a)(1)(A)(v)(I) (“Count Two”), and one count of

aggravated        identity       theft,   18          U.S.C.     §       1028A(a)(1)       (“Count

Six”).       He     was    sentenced         to       concurrent          20-month        terms    of

imprisonment       on     Counts    One   and         Two   and      a    mandatory        minimum,

consecutive       24-month       term   of    imprisonment               on    Count     Six.      He

appeals     the     district       court’s        admission          of       certain     evidence

during his trial and the reasonableness of his sentence.                                           We

affirm the judgment of the district court for the reasons set

forth below.



                                              I.

     Elsy Yolanda Aparicio operated a brothel from an apartment

in the Georgian Woods apartment complex (“Georgian Woods” or

“the complex”) in Wheaton, Maryland. 1                          In 2003, Jair Francis, a

leasing     consultant       at     the      complex,           approached          her    with     a

     1
        This brothel was but one of several operated by the
Aparicio family.    Elsy was joined in this enterprise by her
brother, Eliazor “Lito” Gonzales Aparicio; her sister, Dorinalda
Marlene   Aparicio;   their  aunt,  Rosibel   Aparicio  Jandres;
Rosibel’s husband, Manuel Jandres; and Elsy’s husband, Jonathan
“Jorge” Lopez. We refer to these family members by their first
names.



                                                  2
proposition:        he informed her that the complex management knew

she ran a brothel from the apartment and he offered to move her

to a new apartment and notify her of any police inquiries at the

rental office in exchange for $150 per week in addition to the

monthly rent.        Elsy accepted Francis’ proposition and made the

weekly payments.          She also allowed Francis to avail himself of

the prostitutes’ services for free.

     Some       months    later,       Elsy    encouraged     Eliazor   to    contact

Francis     about    opening       a    second    brothel     at   Georgian     Woods.

Eliazor did so, and Francis demanded $2000 to arrange for a

second apartment, initially located at 2209 Shorefield Road #711

(“Apartment 711”).           Like Elsy, Eliazor paid Francis $150 per

week in addition to the monthly rent and allowed Francis free

access to the prostitutes.

     In January 2004, unbeknownst to Francis and the Aparicios,

police      began        investigating         Eliazor’s      brothel    based       on

information from a confidential informant.                    As the investigation

progressed,      Detective     Leland         Wiley   met   with   Francis    and   the

complex’s assistant manager, Shannon Cooper, and asked them to

watch     for    suspicious     activity          relating    to    Apartment       711.

Francis notified Eliazor of Detective Wiley’s investigation and

arranged to move his brothel to a new apartment, located in the

complex     at    2217      Shorefield         Road    #513   (“Apartment       513”).



                                              3
Unfortunately            for    them,       however,       Wiley    observed       men   moving

furniture from Apartment 711 to Apartment 513. 2

       His curiosity piqued, Wiley asked Cooper why the tenant in

Apartment         711    would       move    to   another        apartment     in    the     same

complex.          Cooper consulted the complex’s computer records and

determined that the tenant, listed as Gayle Arrington, was being

evicted from Apartment 711 for non-payment of rent.                                   However,

when Cooper checked the physical file for that apartment, it

contained only Arrington’s credit report; there was no executed

lease agreement.               There was no agreement because Arrington never

leased Apartment 711.

       Arrington          had        innocently       contacted       Georgian       Woods    in

November         2003,    while       preparing       to    move     from    New    Jersey    to

Maryland.          She     spoke       with    Francis       and     faxed   him     a   rental

application.             Francis       obtained       Arrington’s      credit       report   and

told       her    that         the    application          was     approved.         Arrington

ultimately changed her mind and never signed a lease or moved

into the complex.                Nevertheless, Arrington later found a claim

by Georgian Woods for unpaid rent on her credit report.

       In May 2005, unrelated to Wiley’s investigation, New Jersey

state police stopped a van registered to Manuel Jandres on the


       2
        Police subsequently raided Apartment 513,                                    whereupon
Francis supplied Eliazor with yet a third apartment.



                                                  4
New Jersey Turnpike near Newark.            The van contained thirteen

female passengers and was one of two the Aparicio prostitution

ring used to transport women from New York and New Jersey to

Maryland to work in their brothels.         The New Jersey state police

brought    in   federal   authorities,     including     a     United   States

Immigration and Customs Enforcement (“ICE”) agent who determined

that at least two of the women were in the country illegally.

       In September 2005, Georgian Woods was sold.              In reviewing

the complex’s books in preparation for the sale, Cooper detected

that Francis had mishandled rent receipts and altered computer

records.     Cooper presented her discoveries to David Brocklebank,

the complex’s manager.         When confronted by Brocklebank, Francis

produced a stash of checks and money orders he had secreted in

his desk in violation of company policy.              Brocklebank promptly

fired him.

       In June 2006, Francis was indicted along with other members

of the Aparicio prostitution ring.          Count One and Count Two of

the indictment, principally based on the May 2005 traffic stop

in   New   Jersey,   alleged   that   Francis   and   others    conspired   to

transport individuals in interstate commerce and harbor illegal

aliens.     Count Six alleged that Francis had stolen Arrington’s

identity to conceal the operation of a brothel from Apartment

711.



                                      5
       At trial, Brocklebank provided and testified about a rent

roll produced from the complex’s computer records.                                     The rent

roll       showed     information      about        every       unit     in     the    complex,

indentifying          the    tenant    and         summarizing         lease        information.

Brocklebank testified that the rent roll for January 2004 named

Arrington       as     the    tenant     in    Apartment          711,        and     additional

documents       showed       arrearages        in        her    account        of     $2,702.88.

Francis objected to the introduction of and testimony about the

rent roll.          In addition, Brocklebank testified that he had fired

Francis      for     the    mishandling       of    rent       payments.        Francis    also

objected       to     the    testimony    about          his    termination.           Finally,

Francis’       co-defendant       objected          to     testimony          concerning    the

immigration status of the female passengers in the van during

the    May     2005    traffic    stop.            All     of    these     objections      were

overruled. 3

       Francis        was    convicted    by       a     jury    on    all     counts.      The

presentence report (“PSR”) calculated his offense level as 19

with       criminal    history    category          I,    resulting       in    a     guidelines

range of 30-37 months on Count One and Count Two plus 24 months

as a mandatory minimum, consecutive sentence on Count Six--a


       3
        Francis also filed Rule 29 motions for judgment of
acquittal on Count One and Count Two asserting that the evidence
was insufficient to prove his culpability.     Francis does not
appeal from the denial of those motions.



                                               6
total of 54-61 months.             Francis objected to the PSR, arguing

that the Government had not proved that there were 5 or more

victims for a sentence enhancement on Count One.                               Francis also

argued that he qualified for a downward adjustment under § 3B1.2

of the Sentencing Guidelines and a downward departure under §

5K2.0.

        The    Government      opposed    the          objections        and   the   district

court    overruled       them.      Nevertheless,               after      considering       the

factors in 18 U.S.C. § 3553(a), the district court sentenced

Francis to only 20 months’ imprisonment on Count One and Count

Two,    to    run    concurrently,      and       to    24    months’      imprisonment       on

Count Six, to run consecutively--a total of 44 months.

       Francis      filed   a    timely       notice          of    appeal     and   we     have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).



                                           II.

       Francis       appeals     from     three          of        the   district     court’s

evidentiary         rulings:      the     admission            of    the     rent    roll    and

Brocklebank’s related testimony, the admission of Brocklebank’s

testimony about his termination, and the admission of testimony

about    the    van    passengers’       immigration           status.         Francis      also

challenges his sentence, contending the evidence is insufficient

to support the district court’s finding of 5 or more victims on

Count One, that the district court erred in denying a downward

                                              7
adjustment under § 3B1.2 and a downward departure under § 5K2.0

of   the     Sentencing    Guidelines,     and   that    the    sentence       is

unreasonable under Gall v. United States, 128 S. Ct. 586 (2007),

and United States v. Pauley, 511 F.3d 468 (4th Cir. 2007).



                                      A.

     We    first   consider    Francis’    evidentiary    arguments.         This

Court “review[s] rulings concerning the admission of evidence

for abuse of discretion.”        United States v. White, 405 F.3d 208,

212 (4th Cir. 2005).



                                      1.

     In his opening brief, Francis argued the rent roll was a

summary exhibit offered under Federal Rule of Evidence 1006 but

that he did not have access to source data from which it was

compiled as required by that rule.          See Fed. R. Evid. 1006 (“The

originals, or duplicates, [of evidence from which summaries are

created] shall be made available for examination or copying, or

both,   by   other   parties   at    [a]   reasonable    time   and    place.”)

Francis abandoned this position at oral argument and conceded

that the rent roll was a business record, but asserted that

Brocklebank was not qualified to authenticate it.

     Authenticated        business   records     are    excepted      from    the

hearsay rule under Federal Rule of Evidence 803(6).                   The rule

                                       8
requires that “the testimony of the custodian or other qualified

witness” establish that the record was “kept in the course of a

regularly conducted business activity, and [that] it was the

regular practice of that business activity to make” the record.

Fed. R. Evid. 803(6).                  Brocklebank testified that rent rolls

were   kept        as    part     of   the      regular     course     of    the    complex’s

business and that he himself used them in the regular course of

his duties.         Accordingly, Brocklebank was a qualified witness to

authenticate the rent roll and the district court did not abuse

its discretion by admitting it as evidence.



                                                  2.

       Francis argues that Brocklebank’s testimony that he fired

Francis      for    withholding        tenants’         rent   and    utilities      payments

contrary      to        company    policy         was    improper      bad   act     evidence

admitted in violation of Federal Rule of Evidence 404(b) and

that its prejudicial effect outweighed its probative value in

violation      of       Rule    403.        Francis      submits      that   the    testimony

implied      that       he     intended      to   embezzle      the    payments      and   did

nothing      to     prove       that   he       falsified      computer      records--i.e.,

adding Arrington to the rent roll--because each of the withheld

payments had been recorded in the computer system.                           We disagree.

       Bad    acts        evidence        may     be    admitted       either      under   the

intrinsic      act       doctrine      or     Rule      404(b).       The    intrinsic     act

                                                  9
doctrine allows evidence of bad acts to be admitted if the acts

“arose out of the same series of transactions as the charged

offense, or if [the evidence] is necessary to complete the story

of the crime on trial.”         United States v. Kennedy, 32 F.3d 876,

885 (4th Cir. 1994) (internal quotation marks and alterations

omitted).      “Other   criminal      acts    are   intrinsic   when     they    are

inextricably    intertwined      or    both    acts   are   part   of    a   single

criminal episode or the other acts were necessary preliminaries

to the crime charged.”          United States v. Chin, 83 F.3d 83, 88

(4th Cir. 1996) (internal quotation marks omitted).

     Alternatively,      bad    acts     not    intrinsic     to   the       charged

offense may be admitted under Rule 404(b).                   United States v.

Siegel, 536 F.3d 306, 315-16 (4th Cir. 2008) (citing Chin, 83

F.3d at 87-88); see also United States v. Tedder, 801 F.2d 1437,

1444 (4th Cir. 1986).          In United States v. Queen, 132 F.3d 991

(4th Cir. 1997), we held that Rule 404(b) is a rule of inclusion

that permits the admission of extrinsic bad act evidence “with

only the one stated exception”--i.e., character evidence.                        132

F.3d at 994-95.    Therefore:


     evidence of prior 4 acts becomes admissible under Rules
     404(b) and 403 if it meets the following criteria: (1)

     4
       There is no distinction between “prior” bad acts and
“subsequent” bad acts for the purposes of the rule, which speaks
only of “other” bad acts.    See Fed. R. Evid. 404(b); see also
United States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982)
(Continued)
                                        10
       The evidence must be relevant to an issue, such as an
       element of an offense, and must not be offered to
       establish the general character of the defendant. . .
       . (2) The act must be necessary in the sense that it
       is probative of an essential claim or an element of
       the offense. (3) The evidence must be reliable. And
       (4) the evidence's probative value must not be
       substantially   outweighed  by   confusion  or  unfair
       prejudice in the sense that it tends to subordinate
       reason to emotion in the factfinding process.

Id. at 997 (footnote added).

       In   this    case,    the    Government      argues    that    Brocklebank’s

testimony is evidence intrinsic to Count Six because it provides

contextual information about how Francis was able to conceal his

falsification of Arrington’s tenancy, and, alternatively, that

the evidence was admissible under Rule 404(b).

       There   is   no     inherent    nexus   between       withholding     tenants’

payments and misappropriating Arrington’s identity to create the

false appearance of a lease for Apartment 711.                         The withheld

payments     were    not    discovered    until      September       2005,   some   18

months after Cooper discovered there was no lease for Apartment

711.    There is no evidence in the record that Francis withheld

payments at the time he fabricated Arrington’s lease or that he

withheld payments throughout the 18-month period.                       There is no

evidence     that    Francis       converted   or    intended    to    convert      the




("[I]t is immaterial whether the instances are found occurring
before or after the act charged.").



                                         11
checks and money orders to his own use or that the withheld

payments    were    for     the    apartments             used   as    brothels.           Thus,

Brocklebank’s       testimony         about      the       withholding       of     rent    and

utilities    payments       is    not     inextricably           intertwined        with    the

crime charged so as to be admissible under the intrinsic act

doctrine.

     Nevertheless,         the        district         court     did    not       abuse      its

discretion    in        admitting        the     testimony         under     Rule     404(b).

Brocklebank       testified       that    Francis         recorded      payments      in    the

computer system but did not turn them over to be deposited in

the Georgian Woods account.                Such testimony is relevant to and

probative    of    Francis’       ability        to    create      inaccuracies       in     the

complex’s     business         records         consistent        with      creating        false

records of Arrington’s tenancy.                       Brocklebank’s testimony about

the discrepancies is reliable both because he testified that he

saw the inaccurate computer records himself, confronted Francis

with them, and Francis then physically presented him with the

withheld     payments,          and      because          Cooper       corroborated          his

testimony.        Nor    did     admitting          the    evidence     offend      Rule    403

because the testimony was unlikely to confuse the jury, and it

was not so inflammatory as to subordinate reason to emotion.

Accordingly, there is no reversible error in the admission of

the testimony.



                                               12
                                         3.

        Francis argues that the ICE agent’s testimony about the

immigration status of the women riding in the van stopped on the

New Jersey Turnpike was inadmissible hearsay, because the agent

never spoke to the women and merely relied on reports of other

law     enforcement    officials     that        were    not   introduced      into

evidence.      In addition, the agent testified about information he

found     in    databases,      rather        than     producing   the      records

themselves.

        The Government asserts that Francis failed to object to the

testimony at trial and that we should review this claim for

plain error.      We agree.     The only objection made during the ICE

agent’s testimony came from Francis’ co-defendant, who did not

state a ground for the objection.                Francis argues that his co-

defendant’s objection should be attributed to him even though he

did not affirmatively join in it.

        While some circuits permit an appellant to present an issue

for review although the issue was preserved below only by the

objection of a non-appellant co-defendant, e.g., United States

v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002) (“the objection of a

co-defendant     is   an   objection     for     all    defendants,   and    it    is

sufficient to preserve the issue for appeal”), Francis cites no

supporting authority for that position in this Circuit.                      It is

unnecessary      to   address     that        issue,    however,   because        the

                                         13
objecting co-defendant in this case failed to state a ground for

his    objection.       Therefore,   he     did   not   preserve    a    hearsay

objection for anyone. 5        Consequently, we review this issue only

for plain error.

       To prevail on plain error review, a defendant

       must demonstrate (1) that an error occurred, (2) that
       the error was plain, and (3) that it affected his
       substantial rights.   If the defendant satisfies these
       threshold requirements, correction of the error is
       within   our   discretion,   which   is  appropriately
       exercised only when failure to do so would result in a
       miscarriage of justice, such as when the defendant is
       actually innocent or the error seriously affect[s] the
       fairness, integrity or public reputation of judicial
       proceedings.

United States v. Farrior, 535 F.3d 210, 222 n.4 (4th Cir. 2008)

(internal quotation marks omitted) (alteration in original).                 In

this case, Francis has not met his burden to show prejudice

because other evidence established that some of the prostitutes

were       illegal   aliens   transported    across     state   lines.       For

example, one of the prostitutes, Flores Rangel, testified that

she was an illegal alien from Mexico who traveled between New

York and Maryland in one of Manuel Jandres’ vans.                  Eliazor and

Elsy both testified that many of their prostitutes were illegal


       5
        The Federal Rules of Evidence require a party objecting
to the admission of evidence to state the grounds for his
objection.  Fed. R. Evid. 103(a); see also Chin, 83 F.3d at 87
(4th Cir. 1996) (requiring objections to be made both timely and
stating specific grounds).



                                      14
aliens, and Eliazor and Manuel testified that the white vans

shuttled prostitutes between New York, New Jersey, and Maryland.

Accordingly, Francis does not prevail under plain error review.



                                        B.

        We    next    turn    to   Francis’       challenge    to    the    sentence

imposed by the district court.               “We review a district court’s

sentence under an abuse of discretion standard for procedural

reasonableness.”        United     States    v.    Martinez-Varela,         531    F.3d

298,   299    (4th   Cir.    2008).     “[W]hen     considering       a    sentence’s

reasonableness,        we     ‘review     the       district        court’s       legal

conclusions de novo and its factual findings for clear error.’”

United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)

(quoting United States v. Hampton, 441 F.3d 284, 287 (4th Cir.

2006)).      We “then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.”                          Gall,

128 S. Ct. at 597.



                                        1.

       Francis argues that his sentence is unreasonable because

there was insufficient evidence to support the district court’s

application of a five-level enhancement under § 2G1.1 of the

Sentencing Guidelines, which requires more than five victims.

He contends the only evidence that there were more than five

                                        15
victims on Count One is the ICE agent’s testimony that the van

stopped   on   the    New   Jersey   Turnpike   carried   thirteen   female

passengers, and that testimony was inadmissible hearsay.              This

argument is without merit.

     The formal rules of evidence do not apply to sentencing and

reliable hearsay evidence may be considered.              United States v.

Jones, 31 F.3d 1304, 1316 (4th Cir. 1994) (citing Fed. R. Evid.

1101(d)(3) and U.S. Sentencing Guidelines Manual § 6A1.3).              The

reliability of the ICE agent’s testimony is bolstered by Eliazor

and Manuel’s testimony that the prostitution ring operated two

passenger vans to shuttle the prostitutes between New Jersey,

New York, and Maryland.          Thus, the district court did not commit

clear error in finding the sentence enhancement applied.



                                      2.

    Francis next contends the district court erred in denying a

minimal or minor role downward adjustment under § 3B1.2 of the

Sentencing Guidelines, because he was unaware of the scope and

structure of the Aparicio prostitution ring.         We disagree.

    Application Note 4 to § 3B1.2 states:           “It is intended that

the downward adjustment for a minimal participant will be used

infrequently.”       Moreover,

     mitigating role adjustments apply only when there has
     been group conduct and a particular defendant is less
     culpable than other members of the group to such a

                                      16
      degree that a distinction should be made at sentencing
      between him and the other participants.       However,
      whether a role in the offense adjustment is warranted
      is to be determined not only by comparing the acts of
      each participant in relation to the relevant conduct
      for which the participant is held accountable, but
      also by measuring each participant’s individual acts
      and relative culpability against the elements of the
      offense of conviction.

United   States      v.    Pratt,   239     F.3d   640,      646   (4th    Cir.    2001)

(internal citations and quotation marks omitted).

      In this case, Francis entered the conspiracy at his own

initiative     when       he   approached       Elsy   and    demanded      continuing

payments to conceal her Georgian Woods brothel.                           When Eliazor

sought   to    expand       the   ring’s    operations        at   Georgian       Woods,

Francis demanded an upfront fee to obtain a new apartment and

continuing payments to conceal its use.                  Francis also sought and

received the services of the prostitutes for free.                          Thus, the

district court found not only that Francis was “handsomely paid”

for   his     role    but      that,   without         his    participation,        “the

pervasiveness of this conspiracy would not have been as wide.”

(J.A. 417.)       We agree.         Because Francis initiated his role in

the conspiracy and continued it for several months, and because

that role was to conceal the existence of the conspiracy, we

find no error in the district court’s denial of a minimal or

minor role downward adjustment.




                                           17
                                                3.

       Francis also claims the district court erred in denying a

downward departure under § 5K2.0 of the Sentencing Guidelines,

because as an alien subject to deportation he would be subject

to     harsher    conditions             of     confinement          and       a     period      of

administration detention upon release.                         We have previously held

that    18   U.S.C.         §    3742(a)      does     not    permit       a       defendant     to

challenge the district court’s denial of a downward departure

unless the district court erroneously determined the defendant

was not entitled to a downward departure as a matter of law.

United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).

       There was no question in this case that the district court

had authority to grant a downward departure, and the Government

even conceded that point.                Rather, the district court determined

that    Francis       had       not    met    his     burden    of    proving            that   his

immigration       status         would       result     in     harsher         conditions         of

confinement      or    administration            detention       upon      release.             “The

court knew that it could depart. It refused because it concluded

that the evidence did not justify departure.”                           Bayerle, 898 F.2d

at   31.     Accordingly,             Francis   may     not    challenge           the    district

court’s refusal on appeal.




                                                18
                                                  4.

       Finally, Francis argues that the district court was too

rigid in its calculation of his sentence:                           essentially, because

he was sentenced before the decisions in Gall and Pauley, the

district court was necessarily too reluctant to stray from the

guidelines range and his sentence is therefore unreasonable.                               We

disagree.

       Verifying correct calculation of the sentencing guidelines

range is the first step in determining whether a defendant’s

sentence is reasonable, Pauley, 511 F.3d at 473, but finding

that   the       guidelines        range       was     calculated    correctly      does   not

complete our review for reasonableness.                             We must also verify

that the district court did not commit other procedural error,

“such as . . . failing to consider the [18 U.S.C.] § 3553(a)

factors      .    .     .    or   failing       to     adequately    explain      the   chosen

sentence--including an explanation for any deviation from the

Guidelines range.”                 Gall, 128 S. Ct. at 597.                 Finally, after

finding          “the        district          court’s      sentencing       decision       is

procedurally            sound,          [we]     then     consider     the        substantive

reasonableness              of    the    sentence        imposed    under    an    abuse-of-

discretion standard.”               Id.; accord Pauley, 511 F.3d at 473.                   “In

reviewing the substantive reasonableness of the sentence, we may

consider ‘the extent of the deviation,’ but we ‘must give due

deference to the district court's decision that the § 3553(a)

                                                  19
factors,     on    a    whole,      justify    the       extent   of    the     variance.’”

Pauley, 511 F.3d at 473-74 (quoting Gall, 128 S. Ct. at 597).

      That   the       district       court    sentenced        Francis       prior   to    the

decisions    in    Gall       and   Pauley     reflects        merely     the    caprice     of

chronology rather than any defect in the sentence itself.                                    To

determine whether a sentence is reasonable, we examine how the

district court arrived at it, not when it was imposed.                                We have

already     determined        that     the    district        court     did     not   err   in

calculating the applicable sentencing guidelines range.                                  After

reviewing the record, we find the district court both properly

considered the § 3553(a) sentencing factors and explained its

decision to sentence Francis to 20 months’ imprisonment on Count

One   and    Count        Two--ten       months       less      than      the    applicable

guidelines range. 6

      After calculating the guidelines range, the district court

did   not    merely       presume       that       the       guidelines       sentence      was

reasonable.        Rather,       it    heard    argument        from    each     party,     the

testimony     of       four   witnesses,        and      a    statement       from    Francis

himself during the sentencing hearing.                        The district court then

explained that its sentencing analysis considered the nature of

the offenses and their effect on society, Francis’ own criminal


      6
       The district court had no discretion with regard to the
mandatory minimum, consecutive sentence on Count Six.



                                              20
history, the effect of the sentence in protecting the public and

deterring Francis from future criminal conduct, the disparity in

Francis’ sentence and the sentences of his co-conspirators, the

effect of his incarceration on Francis’ family, Francis’ health,

and the underlying public policy.

     As   a   result   of   its   careful   consideration,   the   district

court imposed a sentence one-third shorter than the low end of

the applicable guidelines range.          The sentence may not be one we

would impose on Francis but, having found no procedural error in

the district court’s analysis and giving due deference to the

district court that the § 3553(a) factors justify the variance,

see Pauley 511 F.3d at 473-74, we hold that it is reasonable and

based on the § 3553(a) factors.           Accordingly, the district court

did not abuse its discretion.



                                    III.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                                   AFFIRMED




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