                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-11510         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     OCTOBER 29, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 4:09-cr-00419-BAE-GRS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff - Appellee,

                                            versus

MARCUS YOUNG,

lllllllllllllllllllll                                          Defendant - Appellant.

                                ________________________

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

                                      (October 29, 2010)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

         Marcus Young pleaded guilty to one count of possessing a firearm while

being a convicted felon, in violation of 18 U.S.C. § 922 (g)(1), and was sentenced
to120-months’ imprisonment. Young appeals his sentence on three grounds.

First, he contends that the district court erred when it orally sentenced him using a

variance analysis and then issued a written judgment using a departure analysis.

Second, Young argues that the sentence is procedurally unreasonable because the

court failed to adequately explain its reasons for varying upward. Finally, Young

argues that his prior conviction, which was used to enhance the guideline

sentencing range, was not charged in the indictment and proved beyond a

reasonable doubt, thus violating his Fifth and Sixth Amendment rights. Upon

review of the record, we affirm.


                                          I.

     “Regardless of whether the sentence is imposed inside or outside of the

guidelines range,” we must first “ensure that the district court committed no

significant procedural error” such as improperly calculating the guidelines range

or failing to adequately explain a deviation from the guidelines. Gall v. United

States, 552 U.S. 38, 51 (2007). Assuming that the district court’s decision is

“procedurally sound, the appellate court should then consider the substantive

reasonableness of a sentence under an abuse-of-discretion standard.” Id.


                                         II.


                                          2
       Young contends that the district court procedurally erred when it failed to

consistently explain its reasoning for his sentence in its oral pronouncement and

written judgment. At the sentencing hearing, the district court analyzed its above-

guidelines sentence as a variance in accordance with 18 U.S.C. § 3553(a).1 After

sentencing Young to the statutory maximum of 120 months’ imprisonment, the

court observed, “That is the maximum, but that falls short of what he needs to be

sentenced to. He has illustrated that he has no respect for the public. He has no

respect for himself, and certainly not for the police officers or the courts.”

       When the court issued the written judgment, however, the district court

indicated in its Statement of Reasons that the above-guidelines sentence was a

departure under “4A1.3 Criminal History Inadequacy.” Further, when explaining

the sentence, the court wrote, “the Court has conducted an upward departure after

finding that the defendant’s criminal history category significantly under

represents the seriousness of the defendant’s criminal history. . . .”

       Young argues that the discrepancy between the oral pronouncement of

sentence and the written judgment creates an ambiguity that warrants a remand for

resentencing. We have determined that “[w]hen a sentence pronounced orally and

       1
         Though the district court conducted a variance analysis, specifically citing to § 3553(a)
factors, it made a single reference to an “upward departure.” This one reference is not enough to
render the district court’s sentence ambiguous. See United States v. Kapordelis, 569 F.3d 1291,
1316 (11th Cir. 2009).

                                                3
unambiguously conflicts with the written order of judgment, the oral

pronouncement governs.” United States v. Bonilla, 579 F.3d 1233, 1245 (11th

Cir. 2009) (internal quotations and citation omitted). If the oral sentence is

ambiguous, only then is it proper to look to the written judgment “to ascertain the

court’s intentions.” Id. The parties agree that the court engaged in a variance

analysis at the sentencing hearing. Because the oral sentence was unambiguous,

the oral pronouncement controls and Young’s 120-month sentence is properly

classified as an upward variance.2

                                              III.

       Young also argues that the district court abused its discretion by imposing

an unreasonable sentence. The sentencing court “shall impose a sentence

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

3553(a)(2).3 Further, when reviewing the district court’s sentence,

       [we] will take into account the totality of the circumstances, including
       the extent of any variance from the [g]uidelines range. . . . [I]f the
       sentence is outside the [g]uidelines range, the court . . . may consider the
       extent of the deviation, but must give due deference to the district
       court’s decision that the § 3553(a) factors, on a whole, justify the extent

       2
        Young also asserts that the district court erred when it failed to follow the proper
procedure for a guidelines departure. Because we conclude that Young’s sentence was a variance
and not a departure, we do not address this issue.
       3
        Sentences pronounced under § 3553(a)(2) shall, inter alia, reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public, and provide the defendant with educational or vocational training.

                                                4
       of the variance. The fact that the appellate court might reasonably have
       concluded that a different sentence was appropriate is insufficient to
       justify a reversal of the district court.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (citation omitted).

       When a district court determines that a variance is in order, “it should

explain why that variance is appropriate in a particular case with sufficient

justifications.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)

(internal quotations and citation omitted).4 These justifications must be

compelling enough to support the district court’s sentence and complete enough

for review by this court; however, the district court need not provide extraordinary

justification for a sentence outside of the guidelines range. Id.

       On review, we conclude that the district court properly considered the

§ 3553(a) factors. The court noted that Young fled from law enforcement on four

occasions; on two of those occasions he was found in possession of drugs and

drug paraphernalia. The district court also focused on Young’s storied criminal

past, referencing his ten convictions dating back from the age of eighteen and

numerous revocations. Further, the district court noted that Young, “hazards the

community and policemen in many ways. . . . it is his custom to resist police . . . .

       4
         “In assessing the factors, the sentencing court should remember that each convicted
person [is] an individual and every case [is] a unique study in the human failing that sometimes
mitigate, and sometimes magnify, the crime and the punishment to ensue.” Shaw, 560 F.3d at
1237 (internal quotations and citation omitted) (emphasis added).

                                                5
He drives to elude police at a great risk to the public, himself, and the police

officers.” This extensive criminal history coupled with the severity of his current

offense supports Young’s sentence. We conclude that the district court did not

abuse its discretion when it varied upwards under § 3553(a) and sentenced Young

to the statutory maximum.

                                         IV.

      Finally, Young argues that the district court violated his Fifth and Sixth

Amendment rights when it enhanced his sentence based on a prior conviction that

was neither charged in the indictment nor proved beyond a reasonable doubt.

Young concedes that this argument is precluded by precedent, but raises the issue

so as to preserve it in case of a change in the governing law.

      This court has repeatedly rejected Young’s argument. United States v.

Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004) (holding that “the government

need not allege in its indictment and need not prove beyond a reasonable doubt

that a defendant had prior convictions for a district court to use those convictions

for purposes of enhancing a sentence”). Thus, any prior conviction that the district

court used to fashion Young’s sentence did not violate his Fifth and Sixth

Amendment rights even if it was neither charged in the indictment nor proved

beyond a reasonable doubt. Accordingly, the sentence of the district court is,


                                          6
AFFIRMED.




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