                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                        Nos. 10-15537 & 10-15538
                       ________________________

               D.C. Docket Nos. 3:10-cr-00173-TJC-JRK-1,
                       3:10-cr-00039-TJC-JRK-1


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,
                                   versus

JAMES LEE EARLY,

                                                 Defendant - Appellant.


                       ________________________

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

                               (July 11, 2012)



Before TJOFLAT, MARTIN and HILL, Circuit Judges.
HILL, Circuit Judge:

      James Lee Early appeals his 210-month sentence imposed after he plead

guilty to robbing two banks using what turned out to be fake bombs. Finding no

reversible error, we shall affirm.

                                         I.

      James Lee Early plead guilty to two counts of robbing a bank by violence,

in violation of 18 U.S.C. § 2113(a) and (d) charged against him in two different,

consolidated cases brought in the Middle and Northern Districts of Florida. In

exchange for his plea, the United States agreed to dismiss all remaining charges in

the two cases and to recommend a sentence at the “low end” of whatever

sentencing guidelines range the district court determined.

      At the sentencing hearing, the district court determined an undisputed

sentencing guidelines range of 78-97 months’ imprisonment. The court also heard

testimony from two of Early’s victims, a statement from Early, and argument from

Early’s counsel. The United States recommended a sentence at the low end of the

guidelines range. The court discussed the relevant sentencing factors located in 18

U.S.C. § 3553(a) and then sentenced him to 210 months’ imprisonment. Early

objected to the sentence, asserting that it was both procedurally and substantively

unreasonable.

                                         2
      On appeal, Early claims only that his sentence is substantively

unreasonable. We review this claim under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. 38 (2007). The party challenging the

sentence bears the burden of establishing that the sentence is unreasonable in light

of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). While the district court making such an upward variance must

have a justification compelling enough to support the degree of the variance and

complete enough to allow meaningful appellate review, we will vacate such a

sentence 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. Shaw, 560 F.3d 1230, 1238 (11th Cir.

2009).

                                          II.

      Early’s robbery spree, for which he received the sentence challenged in this

appeal, began when he threatened a bank teller with a “bomb” and robbed the bank

of $4760. Six days later, Early used another fake bomb in robbing a second bank.

Three days later, he robbed yet another bank with a fake bomb. Finally, five days

later, Early tried to enter yet another bank but was spotted by bank employees who

                                           3
recognized him as the suspect in the previous robberies and who refused to let him

in the bank. Early fled but was chased and arrested.

      Early has spent his adult life – except for eight months – in prison. His

crimes include forgery, petit theft, grand theft, grand theft auto, uttering forged

checks, trafficking in stolen property, smuggling, tampering with evidence,

obstructing an officer without violence, attempted aggravated battery, aggravated

assault, battery on a law enforcement officer, kidnapping, burglary of an

unoccupied structure, armed burglary of a dwelling (with a shotgun when the

residents were home), armed robbery (while holding a hostage at gunpoint),

possession of a handgun as a felon, possession of marijuana, possession of

cocaine, and sale/purchase of cocaine. Several of these offenses were committed

multiple times. Many were committed while Early was on probation. The bank

robberies at issue in this case were committed while he was on bond pending

sentencing in an unrelated case. Both of Early’s victims who testified in this case

reported the lingering effects of their terror during the robberies.

      In imposing an above-guidelines sentence on Early, the district court

specifically acknowledged the recommendation of the United States to a sentence

at the low end of the guidelines range of 78-97 months. But the district court

rejected this recommendation, stating that the guidelines did not adequately

                                           4
account for Early’s criminal history because some of the older convictions were

not scored and the criminal history score did not reflect the sustained nature of

Early’s criminal conduct. The court also opined that the range did not adequately

account for the number of bank robberies that Early had committed, since the

range for one robbery would have been 57-71 months and only increased to 79-97

as the result of three bank robberies.

      The court found that Early’s use of fake bombs in his bank robberies was

“extremely serious,” creating terror in the tellers, customers, and inducing the use

of bomb squads and causing commerce to shut down. The court observed the need

to impose a sentence that reflected the seriousness of Early’s crimes, promotes

respect for the law, provides just punishment, provides deterrence, and protects the

public. The court concluded that “It’s obvious that Mr. Early, by his own conduct,

has demonstrated that the public needs protecting from him, that – that he – the

only way he’s deterred is when he’s in custody. And I think those are factors

which heavily weigh in my evaluation.” The court also addressed the need to

avoid unwarranted disparities in sentences, but stated that “[i]n this case it’s hard

to be too concerned about unwarranted sentencing disparity, because . . . this is a

situation in which on a repeated basis, over the space of about a week or so, a

person robbed banks in a way that put people’s lives – put people in fear for their

                                           5
lives.” The court concluded by stating:

      the court now being fully advised, and recognizing that the court is
      going to substantially vary from the recommended advisory guideline
      range, but doing so advisedly, and for the reasons that I have tried to
      articulate on this record, and being primarily motivated by the nature
      and circumstance of the charged offense, the history and
      characteristics of Mr. Early, and the need to afford both deterrence to
      criminal conduct and protect the public from further crimes of this
      defendant, as again I’ve tried to articulate on this record – those are
      the primary motivators of my sentence in this case, although I’ve
      taken all the 3553(a) factors in to account, including the advisory
      guidelines.
                                          III.

      On this record, we do not find that the sentence imposed by the district court

was substantively unreasonable. Although the upward variance was substantial, it

was still well below the maximum 900 months that he could have received under

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

(comparison between statutory maximum and sentence imposed an indicator of

reasonableness).

      In addition, many of the § 3553(a) factors militate in favor of an upward

variance in this case. Early has shown that, for the past 36 years, he has been

unable to conform his conduct to the requirements of law. His criminal history is

so extensive that he has been incarcerated virtually all of his adult life. When he is

out of prison, he commits more crimes – many of them very violent. The upward



                                          6
variance is also supported by Early’s disrespect for the law reflected in his

recidivism; the need for deterrence; the need to protect society from him; and, the

need to promote respect for the law.

      Early argues that the district court abused its discretion in finding that the

sentencing guidelines range did not adequately account for his criminal history

and the number of bank robberies that he committed. This amounts to an

argument that the district court gave too little weight to the guidelines range as a

relevant sentencing factor under § 3553(a). But we do not substitute our judgment

for that of the district court in weighing the relevant sentencing factors absent a

clear error of judgment, which Early has not shown. The district court gave great

weight to Early’s three bank robberies within a week, and to his substantial

criminal history. This is not a clear error in judgment. See Shaw, 560 F.3d at

1240 (affirming statutory-maximum sentence well above sentencing guidelines

range based upon defendant’s substantial criminal history).

       The district court did not abuse its discretion in fashioning a sentence that

it believed was warranted in view of all the relevant sentencing factors. The

record supports the sentence and we are not left with the firm conviction that the

district court committed a clear error of judgment in weighing these factors and

arriving at a sentence of 210 months. Therefore, the judgment of the district court

                                          7
is

     AFFIRMED.




                 8
MARTIN, Circuit Judge, concurring in the judgment:

      Where a sentencing court addresses the factors set out in 18 U.S.C.

§ 3553(a) and imposes a sentence within the statutory maximum, this court’s

precedent teaches deference to that judgment on any variance above the Guideline

range, no matter how large. See, e.g., United States v. Shaw, 560 F.3d 1230, 1241

(11th Cir. 2009) (upholding a 120-month sentence representing a 224 percent

upward variance from the maximum Guideline sentence); United States v.

Amedeo, 487 F.3d 823, 834 (11th Cir. 2007) (upholding a 120-month sentence

representing a 161 percent upward variance); United States v. Turner, 474 F.3d

1265, 1281 (11th Cir. 2007) (upholding a 240-month sentence representing a 281

percent upward variance). Indeed, in all the cases decided by this court since

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), I have found none

in which we vacated an upward variance from the Sentencing Guidelines on

reasonableness grounds. For this reason, even though Mr. Early’s sentence of

210-months imprisonment represents a 116 percent variance above the 97-month

sentence set by the top of his Guideline range and a remarkable 169 percent

increase from the 78-month sentence requested by the government itself, I cannot

say the panel’s decision here is contrary to our precedent.

      At the same time, I write separately to note that this Court has declined to

                                          9
exercise similar deference toward a sentencing court’s decision to grant a

downward variance. See, e.g., United States v. Jayyousi, 657 F.3d 1085, 1118–19

(11th Cir. 2011) (holding that a 42 percent downward variance was substantively

unreasonable); United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en

banc) (same); United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008)

(holding that a 100 percent downward variance was substantively unreasonable).

This, even where the extent of the variance from the Guideline range was far

smaller and where the reasons given by the sentencing court were more

substantial.

      My reading of these cases tells me that in considering sentences above the

Guideline range, we look only to whether the sentencing court seemed to consider

the § 3553(a) factors and we ignore whether the court might have disregarded one

of the factors or weighed the factors in an unreasonable way. In contrast, for

downward variances, we show no such deference and instead scrutinize how a

sentencing court applied each and every § 3553(a) factor. We even go so far as to

decide for ourselves whether the factors were weighed correctly. See Irey, 612

F.3d at 1196–1225; Pugh, 515 F.3d at 1194–1203.

      Sadly for him, Mr. Early’s case is a good one to highlight this dichotomy.

In downward variance cases such as Irey and Pugh, we vacated sentences on the

                                         10
ground that they failed in effect to give “real weight” to the Guidelines or to

adequately reflect the Guidelines’ policy statements and underlying concerns. See

Irey, 612 F.3d at 1218–19; Pugh, 515 F.3d at 1199–1201. Yet, in the case of Mr.

Early’s 116 percent upward variance, our opinion does not mention the fact that

the sentencing court essentially cast aside the Guidelines on the basis of policy

disagreements.1 That the sentence imposed reflects no consideration of “pertinent

policy statement[s]” of the Sentencing Commission, contrary to 18 U.S.C.

§ 3553(a)(5), is nowhere acknowledged.



       1
          After pointing out that the Guideline range only increased from 57–71 months for one
bank robbery to 78–97 months for three robberies, the sentencing court opined, “the guidelines,
just in the way that they’re created, don’t really capture the repeated criminal conduct in the way
that—that I think they ought to.” Yet, the Guidelines expressly aim to avoid a system in which
each additional count proportionately increases the proper punishment. See U.S.S.G. ch. 1, pt. A,
introductory cmt. § 4(e), p.s. (2010). The goal instead is to “produce declining marginal
punishment,” id. § 3D1.4 cmt. background, by taking the most serious offense “as a starting
point,” and then “provid[ing] incremental punishment for additional criminal conduct,” id. ch. 3,
pt. D, introductory cmt. This results in a system in which “[t]he amount of the additional
punishment declines as the number of additional offenses increases.” Id. (noting that this
approach is intended to apply to “independent instances of assault or robbery”). Disagreeing
with this policy, the sentencing court simply set the Guidelines aside.
         The other explanation given by the court for why the Guidelines failed to reflect the
seriousness of Mr. Early’s conduct “accurately” was because the four-level enhancement for use
of a “dangerous weapon” during a robbery “understate[d]” the tremendous fear that Mr. Early
had caused. But it is clear from the Guidelines’ carefully calibrated “hierarchy of culpability for
varying degrees of involvement,” United States v. Miller, 206 F.3d 1051, 1053 (11th Cir. 2000),
that the Guidelines intend to distinguish fake bombs from real bombs, reserving harsher
punishment for the latter. Compare U.S.S.G. § 2B3.1(b)(2)(D) (four-level enhancement for
using a fake bomb) with id. § 2B3.1(B)(2)(A)–(C) (enhancement of five to seven levels for using
a real bomb). Thus, this was not a case where the Guidelines failed to take into account the
special characteristics of Mr. Early’s crime. Instead, the sentencing court simply did not agree
with the Guidelines’ calibrated distinction between real and fake bombs.

                                                11
       Neither does this opinion comment on the sentencing court’s own views on

deterrence and public protection,2 which led it to add almost a decade to Mr.

Early’s maximum Guideline sentence, almost tripling the sentence that the

government had asked for. Instead of leaving prison in his early 60s, Mr. Early is

now scheduled to leave prison in his early 70s. But I see nothing in this record to

suggest why Mr. Early would be substantially more likely to threaten the public

than another convicted felon released from prison in his early 60s.3 In sum, even

though our case law purportedly requires “a significant justification” to support a

“major departure” from the Guidelines, see Pugh, 515 F.3d at 1201, the panel’s


       2
         In refusing a Guideline sentence, the court emphasized that Mr. Early had convictions
which were “too old” to figure into his Guideline calculation. But this is not a reason to
disregard the Guidelines, which speak directly to this issue. If an upward departure is warranted
because the defendant’s criminal history is not adequately captured, the Guidelines advise to
apply the criminal history category that “most closely resembles” the defendant’s. U.S.S.G.
§ 4A1.3(a)(4)(A). Where an upward departure from the highest criminal history category is
warranted, “the court should structure the departure by moving incrementally down the
sentencing table to the next higher offense level in Criminal History Category VI until it finds a
guideline range appropriate to the case.” Id. § 4A1.3(a)(4)(B). By giving Mr. Early a sentence
that was five years longer than even the highest Guideline sentence for which Mr. Early would
have been eligible had he been assigned the maximum criminal history category (VI), the court
appears to have rejected this framework.
       3
           Mr. Early is neither a sophisticated terrorist nor a sex offender. He therefore does not
fall into the category of criminals for whom we have rejected the assumption that “recidivism
ordinarily decreases with age.” Jayyousi, 657 F.3d at 1117; see Irey, 612 F.3d at 1213–16. That
is not to say that an upward variance was unreasonable given Mr. Early’s criminal history. What
I question was the reasonableness of adding nearly a decade of prison time to Mr. Early’s
sentence even though under the maximum Guidelines sentence he would not have left prison
until his early 60s. We, as a Circuit, should not ignore § 3553(a)’s clear prohibition against
imposing a sentence “greater than necessary[] to comply with the purposes set forth” in
§ 3553(a)(2). 18 U.S.C. § 3553(a).

                                                12
review of Mr. Early’s 116 percent upward variance evinces little indication that

such a requirement even applies here.

      Absent correction, I fear this Court’s different approach for reviewing up

and down sentence variances may erode public trust in our work.




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