           Case: 17-13290   Date Filed: 05/21/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13290
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:16-cr-00040-HL-TQL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                     versus

KENNETH JADON BROWN,

                                                         Defendant-Appellant.

                      ________________________

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

                             (May 21, 2018)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kenneth Brown appeals his 36-month sentence, imposed above his advisory

guideline range, following his conviction for distribution of methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). He contends that the district court

erred by imposing an upward departure without providing him with the required

notice of its intent to depart, and that his sentence was procedurally and

substantively unreasonable.

      We will address each point in turn.

                                I. Departure or Variance

      We review questions of law as to the Guidelines de novo. United States v.

Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009). However, where a defendant

raises a sentencing argument for the first time on appeal, we review only for plain

error. United States v. Prouty, 303 F.3d 1249, 1251-52 (11th Cir. 2002). To

establish plain error, a defendant must show (1) an error, (2) that is plain, and

(3) that affects the defendant’s substantial rights. Id. If these three conditions are

satisfied, the court has discretion to recognize the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. “An error is plain

if it is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d

938, 948 (11th Cir. 2006)

      Rule 32(h) of the Federal Rules of Criminal Procedure, which applies to

“Sentencing and Judgment,” provides that “[b]efore the court may depart from the


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applicable sentencing range on a ground not identified for departure either in the

presentence report or in a party’s prehearing submission, the court must give the

parties reasonable notice that it is contemplating such a departure.” Fed. R. Crim.

P. 32(h). The Supreme Court has held that the notice requirement of Rule 32(h)

applies only to departures, and does not apply to variances. Irizarry v. United

States, 553 U.S. 708, 714-16 (2008).

      The Supreme Court has described “departure” as “a term of art under the

Guidelines” and stated that it “refers only to non-Guidelines sentences imposed

under the framework set out in the Guidelines.” Id. at 714. To determine whether

the district court applied a departure under the Guidelines or a variance under the

§ 3553(a) factors, we consider “whether the district court cited to a specific

guideline departure provision and if the court’s rationale was based on its

determination that the Guidelines were inadequate.” Kapordelis, 569 F.3d at 1316.

In Kapordelis, we held that the district court imposed a variance because (1) it did

not cite to a specific guideline departure provision and (2) its rationale was based

on the § 3553(a) factors and a finding that the Guidelines were inadequate. Id.

      Here, the district court imposed a variance, not a departure, because it did

not cite to any specific departure provision and concluded that the Guideline range

was inadequate, explaining that the “Court determines that a sentence within the

advisory sentencing range is inappropriate in this case, and, therefore, the Court


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will impose a sentence outside the advisory guideline range.” The court discussed

Brown’s criminal history in the context of the need to promote respect for the law,

to deter future criminal conduct, and other § 3553(a) factors. Thus, the court was

not required to provide notice before imposing a sentence that exceeded Brown’s

guideline range.

                   II. Procedural and Substantive Reasonableness

      An appellate court reviews the reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 41 (2007). The court first ensures

that the district court made no significant procedural error, then examines whether

the sentence was substantively reasonable in light of the totality of the

circumstances. Id. at 51. However, we review objections to procedural

unreasonableness of a sentence for plain error when the objection was not raised at

sentencing. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.

2014).

      A sentence is procedurally unreasonable if the district court erred in

calculating the guideline range, treated the Sentencing Guidelines as mandatory,

failed to consider the § 3553(a) factors, selected a sentence based on clearly

erroneous facts, or failed to adequately explain the sentence, including any

deviation from the guideline range. United States v. Rodriguez, 628 F.3d 1258,

1264 (11th Cir. 2010). The district court sufficiently addresses the § 3553(a)


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factors when it acknowledges that it has considered the factors and the defendant’s

arguments. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

When imposing a sentence, the court need not “articulate [its] findings and

reasoning with great detail.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.

2010) (en banc). A challenge to the sufficiency of the district court’s explanations

is a “classic procedural issue, not a substantive one.” Id. at 1194.

      In analyzing the substantive reasonableness of a sentence, we review “the

totality of the circumstances, including an inquiry into whether the statutory factors

in § 3553(a) support the sentence in question.” Gonzalez, 550 F.3d at 1324. The

district court must impose a sentence that is “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2). 18 U.S.C.

§ 3553(a). The § 3553(a) factors include: (i) the nature and circumstances of the

offense and history and characteristics of the defendant; (ii) the need for the

sentence to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, protect the public, and provide the

defendant with training, medical care, or correctional treatment; and (iii) the

Sentencing Guidelines range for the offense. Id. § 3553(a)(1)-(2), (4). The district

court must evaluate all of the § 3553(a) factors, but it may attach great weight to

one factor over the others. United States v. Dougherty, 754 F.3d 1353, 1361 (11th




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Cir. 2014). A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. See Gonzalez, 550 F.3d at 1324.

      “Impermissible double counting occurs when one part of the Guidelines is

applied to increase a defendant’s punishment on account of a kind of harm that has

already been fully accounted for by application of another part of the Guidelines.”

United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006) (quotation

omitted). Distinct from the guidelines, the § 3553(a) factors are mandatory

statutory considerations the court is to contemplate in ensuring that “a sentence [is]

sufficient, but not greater than necessary, to comply with the purposes” of

sentencing. See 18 U.S.C. § 3553(a). While some of the factors are reflected in

the guidelines, they are still distinct from the guidelines, and may be used to tailor

the sentence. See 18 U.S.C. § 3553(a) (2); United States v. Booker, 543 U.S. 220,

245 (2005).

      Brown’s sentence was procedurally reasonable. As noted, supra, the court

was not required to provide notice of its intent to sentence him above his guideline

range, because it did not impose a departure. Moreover, the court acknowledged

the § 3553(a) factors, stated that it had made an individualized assessment based

on the facts of Brown’s case, and discussed a number of the factors with regard to

Brown’s prior drug convictions.




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      Brown’s sentence was also substantively reasonable. The court considered

the § 3553(a) factors and was entitled to attach great weight to the factors that it

deemed appropriate. The court did not impermissibly double count by considering

his history as it applied to the § 3553(a) factors. Finally, his 36-month sentence

was significantly lower than the statutory maximum term of 20 years’

imprisonment, providing further evidence that the sentence was reasonable.

      Accordingly, we affirm Brown’s 36-month sentence.

      AFFIRMED.




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