           Case: 17-12077   Date Filed: 09/04/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12077
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:16-cr-00011-LGW-GRS-1



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

ANTONETTE PHILLIPS,

                                             Defendant - Appellant.

                      ________________________

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

                            (September 4, 2018)

Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.

PER CURIAM:
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      Antonette Phillips pled guilty to one count of failing to register as a sex

offender, in violation of 18 U.S.C. § 2550. The charge stemmed from an arrest for

burglary in 2015 where Mr. Phillips broke into his neighbor’s house and was

caught in the bedroom of two young boys wearing no shirt. Mr. Phillips had been

required to register as a sex offender since 1997, when he was convicted of child

molestation for breaking into a different neighbor’s house and sexually abusing a

12-year-old girl. Despite being required to register annually and upon each change

in address, Mr. Phillips properly registered as a sex offender only once—in 2006.

He was convicted twice for his failure to register in North Carolina (once in 2009

and again in 2011), yet he did not register his address when he moved back to

Georgia in 2012. At sentencing, considering this criminal history and repeated

failure to register, the district court varied upward from Mr. Phillips’ advisory

sentencing guideline range by 11 months and sentenced him to 48 months’

imprisonment.

      On appeal, Mr. Phillips argues that the district court “erred by imposing a

sentence that was an unreasonable upward departure from the advisory sentencing

guidelines.” Initial Br. at 10. This argument confuses an upward departure, which

the district court did not apply, with the district court’s discretion to impose an

upward variance based upon its consideration of the sentencing factors listed in 18

U.S.C. § 3553(a). See United States v. Irizarry, 458 F.3d 1208, 1211–12 (11th Cir.


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2006) (concluding that “the above-guidelines sentence imposed by the district

court in this case was a variance, not a guidelines departure”), aff’d Irizarry v.

United States, 553 U.S. 708 (2008).

      Mr. Phillips also contends that the district court was not permitted to vary

upwards because the factors the district court relied upon “are adequately

addressed in the advisory guidelines.” Initial Br. at 11. We find no abuse of

discretion here. See Gall v. United States, 552 U.S. 38, 46 (2007). As outlined

above, Mr. Phillips has a history of failing to register as a sex offender. Moreover,

the district court explained that his 2015 burglary was “eerily similar” to his 1997

sex crime. See D.E. 50 at 8. Accordingly, it concluded that Mr. Phillips’ “actions

and continued criminal conduct indicate [that he] present[s] a significant danger to

children. The advisory guidelines simply don’t adequately address the extent of

that.” Id.

      On this record, we conclude that the district court’s “justification for the

variance [was] sufficiently compelling to support the degree of variance.” United

States v. Moran, 778 F.3d 942, 983 (11th Cir. 2015) (quotation omitted). See also

United States v. Early, 686 F.3d 1219, 1222–23 (11th Cir. 2012) (affirming

reasonableness of upward variance based upon the defendant’s criminal history

and inability “to conform his conduct to the requirements of law”); United States v.

Martinez-Gonzalez, 663 F.3d 1305, 1311 (11th Cir. 2011) (affirming


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reasonableness of a sentence because the district court found the defendant’s

“history of arrests and convictions was compelling evidence of his propensity to

recidivate”) (alterations adopted).

      For the foregoing reasons, we affirm Mr. Phillips’ sentence.

      AFFIRMED.




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