             Case: 12-11862     Date Filed: 02/07/2013   Page: 1 of 10

                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 12-11855
                              Non-Argument Calendar
                            ________________________

                   D.C. Docket No. 7:10-cr-00011-HL-TQL-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

IMAD ATA SIHWAIL,

                                                              Defendant-Appellant.

                            ________________________

                                  No. 12-11858
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 7:11-cr-00041-HL-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

IMAD ATA SIHWAIL,
a.k.a. Amad Atta Sijwail,
             Case: 12-11862     Date Filed: 02/07/2013   Page: 2 of 10

a.k.a. Imad Siwail,
a.k.a. Mike Siwail,

                                                              Defendant-Appellant.

                            ________________________

                                  No. 12-11862
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 7:11-cr-00042-HL-TQL-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

IMAD ATA SIHWAIL,

                                                              Defendant-Appellant.

                            ________________________

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

                                (February 7, 2013)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      In this consolidated appeal, Imad Sihwail appeals his 230-month total

sentence, imposed above the guideline range, after pleading guilty to three bank

robberies, each in violation of 18 U.S.C. § 2113(a). On appeal, Sihwail argues


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that: (1) the district court procedurally erred in applying the grouping rules of

U.S.S.G. § 3D1.4 to determine a combined offense level for his three counts of

bank robbery, imposing 115-month within-guidelines sentences for each count, and

then also ordering that one of the sentences be served consecutively to the other

two sentences; and (2) the 230-month total sentence, which is double the high end

of the guideline range of 92 to 115 months, is substantively unreasonable. After

careful review, we affirm.

      We review factual findings for clear error, and review application of the

Sentencing Guidelines to those facts de novo. United States v. McGuinness, 451

F.3d 1302, 1304 (11th Cir. 2006). We review the imposition of consecutive terms

of imprisonment for abuse of discretion. United States v. Covington, 565 F.3d

1336, 1346 (11th Cir. 2009). We review the ultimate sentence a district court

imposes for “reasonableness,” which “merely asks whether the trial court abused

its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)

(quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

      In reviewing sentences for reasonableness, we typically perform two steps.

Id. at 1190. First, we “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to


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adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)).

      If we conclude that the district court did not procedurally err, we must

consider the “‘substantive reasonableness of the sentence imposed under an abuse-

of-discretion standard,’” based on the “‘totality of the circumstances.’”             Id.

(quoting Gall, 552 U.S. at 51).       This review is “deferential,” requiring us to

determine “whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). “[W]e will not second guess the weight (or lack

thereof) that the [district court] accorded to a given factor ... as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.”

United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration

and emphasis omitted), cert. denied, 131 S.Ct. 2962 (2011). We will “vacate the

sentence if, but only if, we are left with the 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. Irey, 612 F.3d 1160, 1190 (11th Cir.

2010) (en banc) (quotation omitted), cert. denied, 131 S. Ct. 1813 (2011).




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      A district court is not required “to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). An

acknowledgment that the court considered the defendant’s arguments and the §

3553(a) factors is adequate. Talley, 431 F.3d at 786.

      When reviewing a sentence outside the guidelines range, we may take into

account the degree of variance from the guidelines range, but extraordinary

circumstances are not required to justify a sentence outside the guidelines range.

Gall, 552 U.S. at 47. However, the district court should explain why the variance

is appropriate in a particular case and the “justification for the variance must be

sufficiently compelling to support the degree of the variance.” Irey, 612 F.3d at

1186-87 (quotation omitted). We “may not presume that a sentence outside the

guidelines is unreasonable and must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Id. at 1187 (quotation omitted).

      First, we find no merit to Sihwail’s claim that the district court procedurally

erred in imposing his sentence. The Sentencing Guidelines set forth a procedure

for determining the offense level when a defendant is charged with multiple counts

in the grouping rules of Chapter 3. U.S.S.G. Ch.3, Pt.D, intro. comment. As

described in U.S.S.G. § 3D1.1, when a defendant has been convicted of more than


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one count, the court: (1) groups the counts into “Groups of Closely Related Counts

(‘Groups’)” by applying § 3D1.2; (2) determines the offense level applicable to

each Group by applying § 3D1.3; and (3) applies § 3D1.4 to determine the

combined offense level applicable to all Groups. U.S.S.G. § 3D1.1(a). Section

3D1.2 provides that, for the purpose of determining the applicable sentence of a

defendant convicted of more than one count, “[a]ll counts involving substantially

the same harm shall be grouped together into a single Group.” U.S.S.G. § 3D1.2.

Section 3D1.4 provides a procedure for determining the combined offense level by

(1) counting the Group with the highest offense level as one Unit, (2) either

disregarding, counting as one Unit, or counting as a one half Unit all the other

Groups, depending on how their offense levels compare to the Group with the

highest offense level; and then (3) increasing the highest offense level a designated

amount based on the total number of units. U.S.S.G. § 3D1.4(a)-(b).

      The Sentencing Reform Act provides that:

      If multiple terms of imprisonment are imposed on a defendant at the
      same time, . . . the terms may run concurrently or consecutively . . . .
      Multiple terms of imprisonment imposed at the same time run
      concurrently unless the court orders or the statute mandates that the
      terms are to run consecutively. Multiple terms of imprisonment
      imposed at different times run consecutively unless the court orders
      that the terms are to run concurrently.

18 U.S.C. § 3584(a). Under § 3584(b), a district court may impose a consecutive

sentence “provided that it first considers the § 3553(a) factors.” Covington, 565


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F.3d at 1346-47; see 18 U.S.C. § 3584(b). Once the court has considered the §

3553(a) factors, “the only limitation on running sentences consecutively is that the

resulting total sentence must be reasonable,” and the defendant bears the burden of

showing that his sentence is unreasonable. Covington, 565 F.3d at 1347.

      In this case, Sihwail has not demonstrated that the district court erred in

applying the grouping rules to his convictions, or that it abused its discretion in

ordering that one of the terms of imprisonment be served consecutively. For

starters, Sihwail does not argue that the court erred in its grouping calculations

under § 3D1.4. Rather, he argues that the court could not apply the grouping rules

and also order that a sentence be served consecutively. However, he points to no

statute or Guidelines provision, nor any case law to support this assertion.

      As the record shows, the court properly calculated the combined offense

level applicable to all the groups, each consisting of one of the bank robberies for

which Sihwail was convicted. See U.S.S.G. §§ 3D1.1, 3D1.4. Once the court

made those calculations, it had the discretion to order that the sentences imposed

run concurrently or consecutively. See 18 U.S.C. § 3584(a). The record reflects

that the court expressly said that it had considered the § 3553(a) factors, as

required by § 3584(b) prior to imposing a consecutive sentence. 18 U.S.C. §

3584(b). Thus, as long as the sentence imposed was reasonable, as discussed




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below, Sihwail cannot show that the court abused its discretion. See Covington,

565 F.3d at 1347.

      Indeed, we are also unpersuaded that Sihwail’s sentence is unreasonable.

First, as we’ve noted, the district court expressly said that it had considered and

weighed the § 3553(a) sentencing factors.       The record shows that the court

considered the nature and circumstances of the offense, as well as Sihwail’s history

and characteristics, which included a total of five armed bank robberies among

other prior theft and burglary convictions. Further, the district court expressly

considered Sihwail’s “pattern” of robbery offenses, determined that a “long term of

incarceration” was necessary to address his conduct and protect the public, and

determined that the guideline range was “insufficient” to meet these goals.

      Thus, although the court considered and adopted the guidelines range as

advisory, the record reflects that the court sufficiently explained why the variance

was appropriate -- specifically, the court expressed concerns for Sihwail’s criminal

history and his recidivism for committing armed bank robberies. Based on this

record, Sihwail has failed to show that a sentence above the guidelines range but

below the statutory maximum sentence of 20 years was an unreasonable response

by the court to Sihwail’s history. See 18 U.S.C. § 2113(a) (providing a maximum

punishment of 20 years’ incarceration for a defendant convicted of bank robbery




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under § 2113(a)).    Accordingly, we affirm Sihwail’s 230-month sentence as

substantively unreasonable.

      AFFIRMED.




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MARTIN, Circuit Judge, concurs in the result.




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