                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 10-15650                   JULY 11, 2011
                         Non-Argument Calendar               JOHN LEY
                       ________________________               CLERK


               D.C. Docket No. 2:09-cr-00207-MEF-CSC-1


UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                 versus

ANDRES CARMELO PENALBA-MARTINEZ,
a.k.a. Luis Fuentes,


                                                     Defendant-Appellant.


                     __________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      _________________________
                              (July 11, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
      Andres Carmelo Penalba-Martinez appeals his sentence of 70 months of

imprisonment for bank fraud. 18 U.S.C. § 1344. Penalba argues that his sentence

is unreasonable. We affirm.

      The district court did not abuse its discretion by sentencing Penalba to a

term of imprisonment 24 months above the top of the guideline range and well

below the statutory maximum term of 360 months of imprisonment. Although

Penalba was indicted for conspiring to commit bank fraud and five counts of

committing bank fraud, Penalba negotiated an arrangement to plead guilty only to

the charge of defrauding MBNA Bank by using a counterfeit credit card bearing a

valid account number to purchase more than $640 of goods. Penalba’s

presentence investigation report described a criminal history that spanned over 24

years and included 61 convictions for crimes ranging from carrying a concealed

weapon, battery of a law enforcement officer, and possession of drugs and drug

paraphernalia, to theft and forgery of a credit card, as well as arrests for 24 other

crimes and for charges that were pending in Florida and Alabama. The district

court reasonably determined that an upward variance was necessary to address

Penalba’s history and characteristics, see United States v. Williams, 526 F.3d

1312, 1324 (11th Cir. 2008), and to provide adequate punishment, promote respect

for the law, protect the public, deter future similar crimes, and provide Penalba


                                           2
with “the benefits of any vocational training or educational opportunities”

available to him in prison. See 18 U.S.C. § 3553(a)(1)–(2). Penalba’s sentence is

reasonable.

      We AFFIRM Penalba’s sentence.




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