                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________  ELEVENTH CIRCUIT
                                                              MARCH 20, 2012
                            No. 11-11999                       JOHN LEY
                        Non-Argument Calendar                    CLERK
                      ________________________

                  D.C. Docket No. 1:10-cr-20855-MGC-4



UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

EMILE MYRTHIL,
                                                    Defendant-Appellant.


                     __________________________

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

                            (March 20, 2012)

Before MARCUS, MARTIN and HILL, Circuit Judges.
PER CURIAM:

      Emile Myrthil appeals his 151-month total sentence, imposed after he pled

guilty to 1 count of conspiracy to interfere with commerce by means of robbery, in

violation of the Hobbs Act, 18 U.S.C. § 1951(a) (Count 1); 1 count of attempting

to interfere with commerce by means of robbery, in violation of the Hobbs Act, 18

U.S.C. §§ 1951(a) and 2 (Count 2); and 1 count of using a firearm in furtherance

of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2

(Count 3). Myrthil was sentenced to 31 months’ imprisonment for Counts 1 and 2

to be served concurrently, which was a downward variance of 20 months from the

low-end of the applicable guideline range. He was also sentenced to 120 months’

imprisonment for Count 3 to be served consecutively, which was the mandatory

minimum sentence imposed by statute.

      On appeal, Myrthil argues that his 151-month total sentence was

substantively unreasonable because the sentence was greater than necessary for

punishment under 18 U.S.C. § 3553(a). He asserts that the 151-month sentence

was 25 months greater than the sentence he requested based on his mitigation

factors. He further argues that the district court mistakenly believed that he had a

prior criminal record involving violence. He also argues that his sentence was six




                                          2
months longer than that of one of his codefendants, and the district court should

avoid such sentencing disparity.

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41,

128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We may “set aside a sentence only if

we determine, after giving a full measure of deference to the sentencing judge, that

the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160,

1191 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). A sentence

may only be vacated if we are left with a “definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008) (quotation omitted).

      The district court is required to impose a sentence that is “sufficient, but not

greater than necessary to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote

respect for the law, provide just punishment for the offense, deter criminal

conduct, protect the public from the defendant’s future criminal conduct, and

provide the defendant with needed educational or vocational training, medical


                                          3
care, or other correctional treatment. See 18 U.S.C. § 3553(a)(2). The district

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 guideline range, the pertinent policy statements issued by the

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

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

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

sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.

Once we determine a sentence is procedurally reasonable, we must examine

whether the sentence, including the extent of any variance, was substantively

reasonable under the totality of the circumstances. Id. A sentence may be

substantively unreasonable if the district court arbitrarily selects the sentence,

bases the sentence on impermissible factors, or fails to consider pertinent

§ 3553(a) factors. Pugh, 515 F.3d at 1192.

      When a sentence is outside the Guidelines, the degree of the variance must

be supported by a “sufficiently compelling” justification, and the district court


                                           4
must explain its reasoning for the sentence. United States v. Kapordelis, 569 F.3d

1291, 1317 (11th Cir. 2009). The party challenging the sentence has the burden of

establishing that the sentence was unreasonable in light of the record and the

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      Upon review of the record and consideration of the parties’ brief, we affirm.

Myrthil’s 151-month total sentence was substantively reasonable. The district

court considered the statements of the parties and the 18 U.S.C. § 3553(a) factors,

including the nature and circumstances of the offense and Myrthil’s personal

history and characteristics. Although the sentence was outside the applicable

guideline imprisonment range, the downward variance was in Myrthil’s favor, and

it was imposed after the district court calculated the correct guideline range and

justified the extent of the variance. Furthermore, the district court did not believe

that Myrthil had a prior criminal record involving violence, and Myrthil failed to

show that the sentencing disparity between him and one of his codefendants

rendered his sentence unreasonable. Accordingly, we affirm the sentence as

reasonable.

      AFFIRMED.




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