           Case: 12-10382   Date Filed: 02/04/2013   Page: 1 of 5

                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-10382
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:08-cr-00087-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                  versus

FRED COWART,

                                                        Defendant - Appellant.

                      ________________________

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

                            (February 4, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Fred Cowart appeals his 75-month sentence, imposed after he pled guilty to

one count of unauthorized use of an access device in violation of 18 U.S.C.

§ 1029(a)(2). On appeal, Cowart argues his sentence (1) is substantively and

procedurally unreasonable and (2) violates the Double Jeopardy Clause. After

review, we affirm Cowart’s sentence.

                                          I.

      Cowart contends his above-Guidelines sentence is both substantively and

procedurally unreasonable. We review the reasonableness of a sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586,

591 (2007). The party challenging the sentence on appeal has the burden of

establishing the sentence is unreasonable in light of the record and the § 3553(a)

factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In determining reasonableness, we engage in a two-step process of review.

Gall, 128 S. Ct. at 597. First, we ensure no significant procedural error has

occurred, such as failing to calculate the Guidelines range, failing to treat the

Guidelines as Advisory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

sentence. Id. Once we have determined the sentence is procedurally reasonable,

we examine whether the sentence is substantively reasonable in light of the totality

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of the circumstances, including evaluating whether the statutory factors in

§ 3553(a) support the sentence. United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008).

      When the district court imposes a sentence greater than the Guidelines

range, it can do so using either an upward departure or an upward variance. See

U.S.S.G. § 4A1.3(a)(4)(B); 18 U.S.C. § 3553. We have held that a variance rather

than an upward departure was imposed when the district court calculated the

guideline range, considered the adequacy of the Guidelines range in light of the

evidence and the § 3553(a) factors, and imposed a sentence outside the Guidelines

range because the range did not adequately address a factor under § 3553(a). See

United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006).

      The district court’s decision to impose a 75-month sentence was both

procedurally and substantively reasonable. The district court correctly calculated

the Guidelines range, treated the Guidelines as advisory, adopted accurate factual

findings from the Presentence Report, and adequately explained the reasons for the

sentence. Gall, 128 S. Ct. at 597. The district court did not err in failing to follow

procedures for an upward departure pursuant to U.S.S.G. § 4A1.3 because it

imposed a variance under § 3553(a). Irizarry, 458 F.3d at 1211-12. Further, the

district court fully explained its conclusion that the Guidelines sentence did “not

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sufficiently address [Cowart’s] history and characteristics or the continual nature

of sophisticated crimes,” noting, among other factors, the “cunning” of Cowart in

carrying out his fraud, the amount of money involved, and Cowart’s “pattern of

nearly continuous criminal activity.” The sentence is also substantively

reasonable in light of the circumstances and the § 3553(a) factors. See Gonzalez,

550 F.3d at 1324. An upward variance was warranted to reflect the seriousness of

the offenses, the need to deter Cowart where previous sentences have failed, and

the need to protect the public from his almost continual criminal conduct. Thus,

the district court did not abuse its discretion in imposing a 75-month sentence.

                                         II.

      Cowart argues, for the first time on appeal, that his sentence violates the

Double Jeopardy Clause because Cowart served a sentence in the Western District

of North Carolina for violations of the same statute for purchases made using the

same counterfeit credit card. Where a defendant has not raised the issue of double

jeopardy before the district court, we review his claim for plain error. United

States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). The error must be “obvious

and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th

Cir. 2006).




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      Generally, when a defendant pleads guilty, he waives all non-jurisdictional

challenges to a conviction, including a double jeopardy challenge. United States

v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008). A defendant does not waive the

challenge where, on the basis of the record at the time of the guilty plea, the claim,

on its face, is one that the government cannot constitutionally prosecute. United

States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009). To make this

determination, we look at (1) whether the defendant’s assertion that he was

improperly convicted and punished twice for a single offense contradicts the

indictment, and (2) whether he needs to depend on facts outside the plea hearing

record to prove a violation of the Double Jeopardy Clause. Id. at 1240–41.

      Cowart waived his right to assert a double jeopardy violation when he pled

guilty under 18 U.S.C. § 1029(a). Cowart’s assertion that he was improperly

punished twice contradicts the indictment, such that he would have to rely on facts

outside the plea hearing record to challenge his convictions. Bonilla, 579 F.3d at

1240–41. Furthermore, whether or not the North Carolina documentation is

considered, it is not clear or obvious that a double jeopardy violation exists. See

Eckhardt, 466 F.3d at 948. Therefore, the district court did not plainly err in

imposing a sentence under 18 U.S.C. § 1029(a)(2).

      AFFIRMED.

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