                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-13682         ELEVENTH CIRCUIT
                                   Non-Argument Calendar        MAY 18, 2011
                                 ________________________        JOHN LEY
                                                                  CLERK
                          D.C. Docket No. 8:09-cr-00101-RAL-AEP-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                           versus

MICHAEL PERNELL WESTON,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                        (May 18, 2011)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:

         In March 2009 Michael Pernell Weston was indicted for four counts of bank

robbery in violation of 18 U.S.C. § 2113, and one count of carjacking, in violation
of § 2119. He pleaded guilty to three counts of bank robbery and received an

above-guidelines sentence of 240 months’ federal imprisonment. Weston raises

two arguments on appeal. First, he argues that the district court inaccurately

calculated his sentence because it erroneously considered his state-court sentence

for October 7, 2008 conduct to be a “prior sentence” when determining Weston’s

criminal history category. Second, Weston argues that his sentence is procedurally

and substantively unreasonable. After careful consideration of the record and the

parties’ briefs on appeal, we affirm.

       1.     Calculation of Criminal History Category

       Weston argues that the district court erred by including his state-court

sentence for an October 7 bank robbery and carjacking1 when determining his

criminal history category. Because Weston raises this argument for the first time

on appeal, we review only for plain error. See United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). To establish plain error, a defendant must show

that there is (1) error, (2) that is plain, (3) that affects substantial rights, and (4)

that seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.



       1
        These offenses, which constituted Counts One and Two of the instant indictment, were
dismissed pursuant to Weston’s plea agreement.

                                              2
      Ordinarily, a sentencing judge should add three points to a defendant’s

criminal history category for each “prior sentence” of imprisonment exceeding one

year and one month. U.S.S.G. § 4A1.1(a). But under § 4A1.2(a)(1), conduct that

was part of the instant offense cannot be classified as a “prior sentence.” Thus,

Weston argues that his state-court sentence should have been excluded because it

was based on conduct that is part of the “instant offense.” We disagree. The first

note in the commentary to § 4A1.2 defines “[c]onduct that is part of the instant

offense” as that which is “relevant” to the instant offense under § 1B1.3. Section

1B1.3, in turn, when read together with § 3D1.2(d), operates to exclude a § 2B3.1

offense (robbery). Accordingly, Weston’s state-court sentence for bank robbery is

not “relevant conduct” to the instant offense, and is therefore correctly classified

as a “prior sentence.”

      Notwithstanding the district judge’s passing use of the phrase “relevant

conduct,” the district court did not err, much less plainly err, when considering

Weston’s prior state-court convictions when calculating his criminal history

category. The district court was entitled to consider Weston’s state-court

sentence, along with the other 18 U.S.C. § 3553(a) factors, when determining his

sentence.

      2.     Substantive and Procedural Reasonableness

                                          3
       Weston argues that his 240-month, above-guidelines sentence was

inconsistent with the purposes set forth in § 3553(a), greater than necessary, and

overly reliant on his prior state-court convictions. We disagree.

       We review the reasonableness of a sentence under the deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). First, we must

determine whether the district court committed any “significant procedural error,

such as failing to calculate (or improperly calculating) the [sentencing] Guidelines

range . . ., failing to consider the § 3553(a) factors . . ., or failing to adequately

explain the chosen sentence . . . .” Id. at 51. If we determine that the district

court’s decision was procedurally sound, we next consider the substantive

reasonableness of the sentence imposed, taking into account “the totality of the

circumstances.” Id. We may not presume that a sentence outside the guidelines

range is unreasonable and generally must defer to the district court’s decision that

the § 3553(a) factors justify the extent of the variance. See United States v. Irey,

612 F.3d 1160, 1187 (11th Cir. 2010) (en banc), cert. denied 2011 WL1225730

(2011). A district court shall impose a sentence that is sufficient, but not greater

than necessary. See § 3553(a)(2) (listing relevant factors for district court’s

consideration). Although a district court’s unjustified reliance on any one

§ 3553(a) factor can indicate an unreasonable sentence, United States v. Pugh, 515

                                            4
F.3d 1179, 1191 (11th Cir. 2008), a district court is free to attach “great weight” to

one factor over others. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.

2009), cert. denied, 129 S. Ct. 2847 (2009). The party challenging the sentence

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

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

(11th Cir. 2005) (per curiam).

         Weston has failed to establish that his sentence was procedurally or

substantively unreasonable. As explained supra, the district court properly

considered Weston’s previous state-court sentence when calculating his federal

jsentence. Further, after hearing from the parties, the district court adequately

explained why the § 3553(a) factors militated in favor of an above-guidelines

range sentence. The district court did not abuse its discretion when it focused on

Weston’s extensive criminal history, including the conduct underlying Weston’s

state-court sentences, in deciding to vary upward. The district court considered

Weston’s arguments for mitigation and allocution, and was then free to weigh the

statutory factor of criminal history more heavily than others. Weston’s sentence

was not greater than necessary, because as the district court explained, the

circumstances of this case “cry out for a sentence in excess of” the guidelines

range.

                                           5
      Accordingly, Weston’s challenge to the procedural and substantive

reasonableness of his sentence fails.

      AFFIRMED.




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