           Case: 12-12613   Date Filed: 04/30/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12613
                        Non-Argument Calendar
                      ________________________

                D. C. Docket No. 2:11-cr-00099-JES-SPC-1

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                  versus

EARL CARTER, JR.,

                                                         Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                            (April 30, 2013)

Before CARNES, BARKETT and BLACK, Circuit Judges.

PER CURIAM:
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      Earl Carter Jr. appeals his sentence of 60 months’ incarceration and 10

years’ supervised release after he pled guilty to the failure to register as a sex

offender, in violation of 18 U.S.C. § 2250(a). Carter contends that both the 60-

month term of imprisonment and the 10-year term of supervised release imposed

by the district court were procedurally and substantively unreasonable.

Procedural Reasonableness

      Carter contends the sentence was procedurally unreasonable because the

court failed to: (1) first consider an upward departure under U.S.S.G. § 4A1.3(a),

before applying a variance, and (2) provide adequate findings for appellate review.

Both of these arguments fail.

      First, Carter relies on an unpublished, non-binding, subsequently abrogated

decision of the Fourth Circuit for his claim that the district court should have first

considered an upward departure under U.S.S.G. § 4A.13(a)(1), before imposing an

upward variance. In United States v. Diosdado-Star, 630 F.3d 359 (4th Cir.),

cert.denied, 131 S. Ct. 2946 (2011), the Fourth Circuit acknowledged that the

Supreme Court decisions in Gall v. United States, 552 U.S. 38 (2007), and Rita v.

United States, 551 U.S. 338 (2007), overruled the language from their earlier

opinions that an upward departure must be considered before a variance is applied.

Diosdado-Star, 630 F.3d at 363-64. Declining to consider a departure before

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imposing an upward variance did not render Carter’s sentence procedurally

unreasonable.

      Second, the district court adequately explained its reasons for deviating from

the Guidelines. The district court discussed Carter’s lengthy criminal history,

dating back to 1991, and stated that in the court’s opinion Carter was a “violent

and dangerous person.” The court also noted that it appeared Carter had fled

Mississippi in order to avoid arrest and had knowingly failed to register as a sex

offender once he arrived in Florida. Carter contends this explanation is inadequate

to allow for appellate review because the district court did not discuss the degree to

which each of the stated factors impacted the sentencing decision. However, the

sentencing court is not required to discuss each of the § 3553(a) factors or even to

state on the record that it has explicitly considered each of the factors. United

States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Therefore, the district court

did not abuse its discretion by discussing these factors without specifically stating

how each individual fact impacted the decision to impose a variance. See Gall,

552 U.S. at 47, 51 (explaining the reasonableness of a sentence is reviewed under a

deferential abuse of discretion standard and rejecting a rule imposing a rigid

mathematical formula for determining the justifications required for a specific

sentence).

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Substantive Reasonableness

       Next, Carter contends the sentence was substantively unreasonable because

(1) the court unjustifiably relied on the factors in U.S.C. § 3553(a)(2) and failed to

consider other pertinent § 3553(a) factors, and (2) the sentence is too lengthy.

These arguments are also meritless.

       The district court considered all of the factors in § 3553(a)1 and discussed

particular aspects of Carter’s case that merited an upward variance. The court then

imposed a sentence that, while above the applicable Guidelines range, was well

within the statutory maximum penalty of 10 years’ incarceration and lifetime

supervised release. See 18 U.S.C. §§ 2250(a), 3583(k). While Carter argues the

sentence is unreasonable because it “unjustifiably” relies on § 3553(a)(2) and fails

to consider other pertinent factors, he provides no information as to other pertinent

factors the court should have considered.

       Finally, Carter argues the sentence is substantively unreasonable because it

is too lengthy. Because the sentence was supported by the § 3553(a) factors and
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          The district court must impose a sentence “sufficient, but not greater than necessary to
comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment for the offense,
deter criminal conduct, and protect the public from the defendant’s future criminal conduct. See
18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also consider the
nature and circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable Guidelines range, the pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

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was well below the statutory maximum term, the court did not commit a clear error

in judgment and did not abuse its discretion. See United States v. Irey, 612 F.3d

1160, 1190 (11th Cir. 2010) (en banc) (explaining we will vacate a sentence as

unreasonable only if we are left with the firm conviction “the district court

committed a clear error in 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. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008) (stating that the sentence imposed is below the statutory maximum is a

factor to consider in determining its reasonableness). Accordingly, we affirm

Carter’s sentence as reasonable.

      AFFIRMED.




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