                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                   FILED
                        ________________________        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               Aug. 8, 2008
                             No. 08-10710                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                          D. C. Docket Nos.
                07-00105-CR-3-MCR & 07-00132-CR-3-M

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

HOLLY M. BARNES,
a.k.a. Hotmama983,
a.k.a. Freewoman74,

                                                         Defendant-Appellant.


                       ________________________

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

                             (August 8, 2008)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:
      Holly M. Barnes appeals the 120-month sentence she received for filing

false tax returns with the Internal Revenue Service and identity theft (Case No.

3:07CR105-001), and theft of government property greater than $1,000 (Case No.

3:07CR132-001). She contests both the district court’s sentencing procedures and

the substantive reasonableness of the sentence, given that the Guidelines range was

27-33 months’ imprisonment.

      The PSI reveals that Barnes, using the social security numbers of girls in her

Girl Scout troop that she obtained through fraudulent medical release forms,

created and filed fraudulent federal income tax returns under the names of the

children. She also made 32 separate fraudulent merchandise returns at a Navy

Exchange. Barnes ultimately pled guilty to 19 counts of making false, fictitious, or

fraudulent claims against the government, 15 counts of identity theft, and one

count of theft of government property greater than $1,000.

                           I. Notice of upward variance

      Barnes first argues that her sentence was procedurally unreasonable because

she was not provided any notice that the district court would consider an upward

departure or variance despite the requirements of both Federal Rule of Procedure

32(h) and the Due Process Clause of the Fifth Amendment. “We review questions

of law arising under the sentencing guidelines de novo.” United States v. Bush,



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126 F.3d 1298, 1299 (11th Cir. 1997) (per curiam). In Irizarry v. United States,

128 S. Ct. 2198 (2008), the Supreme Court held that when a district court

sentences above the advisory Guidelines range based on § 3553(a), it is not

required to provide defendants with advance notice under Rule 32(h). Id. at 2202-

03. After Booker eliminated the mandatory nature of the Guidelines, defendants no

longer have any “expectancy” protected by the due process protections of Rule

32(h) in receiving a sentence within the presumptively applicable Guidelines

range. Id. at 2202.

       Thus, because the upward variance in Barnes’s sentence was not subject to

the due process protections of Rule 32(h), the lack of notice from the district court

before it imposed the upward variance was not error. Accordingly, we affirm as to

this issue.

                        II. Reasonableness of the Sentence

       Barnes argues that her sentence is both procedurally and substantively

unreasonable. First, she asserts that the district court unreasonably ignored the

Sentencing Commission’s policy judgments concerning the weight to be given to

the factors identified in the Guidelines. She notes that the court relied on several

factors when it deviated from the recommended Guidelines, which could have been

taken into account through the sentencing Guidelines themselves. She contends



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that if the court thought these factors applied, it should have either rejected the

Guidelines score sheet or corrected the score sheet in open court, and that by

failing to do so the court used an inappropriate procedure and issued an unguided

deviation that subverted the Sentencing Guidelines scheme.

      Barnes also argues that her 120-month sentence was substantively

unreasonable because it is a 12- to 13-level deviation above the Guidelines’

recommended range. The sentence was so far above the recommended range, she

contends, that it was inherently suspect and greater than necessary to punish her

and protect society.

      In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court clarified

that the reasonableness standard of review announced in Booker requires that

appellate courts review the ultimate sentence imposed under a “deferential abuse-

of-discretion standard,” and take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range. Id. at 591. A

sentence is procedurally unreasonable if the district court failed to calculate or

incorrectly calculated the Guidelines, treated the Guidelines as mandatory, failed to

consider the § 3553(a) factors, selected a sentence based on clearly erroneous facts,

or failed to adequately explain the chosen sentence. See id. at 597. A sentence

may be substantively unreasonable if it does not achieve the purposes of



                                           4
sentencing stated in § 3553(a). United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008). We will remand 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.” Id. (internal quotation marks omitted).

We have previously upheld large upward variances where the district court

appropriately considered the advisory sentencing range and the § 3553(a) factors,

particularly where, as here, the sentence was below the statutory maximum. See,

e.g., United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007) (affirming as

reasonable a 240-month sentence for multiple offenses arising out of a theft of

approximately $266,000 from a U.S. Post Office, where the Guidelines range was

51-63 months, the range was calculated correctly, and the court expressly

considered that range and the § 3553(a) factors), cert. denied, 128 S. Ct. 867

(2008).

      Here, the district court stated that it had considered the Guidelines range and

all of the § 3553(a) factors. It then proceeded to discuss its consideration of the

factors at length. When the court indicated that it intended to impose an above-

Guidelines range sentence, it determined that the PSI was accurate and

incorporated the PSI’s findings into Barnes’s sentence. The total 120-month



                                           5
sentence was comprised of the following sentences, running concurrently: (1) 60

months for each of Counts 1-19, to run concurrently; (2) 120 months for each of

Counts 20-34, to run concurrently; and (3) 120 months for the remaining count.

Finally, the district court found the sentence to be sufficient, but not greater than

necessary, to comply with the purposes of sentencing. The statutory maximums

were: 5 years each for Counts 1-19; 15 years each for Counts 20-34; and 10 years

for the remaining count.

      Furthermore, the severity of Barnes’s crimes, her compulsive criminal

conduct up until the plea hearing, and her failure to abide by the terms of her

release on bond are all sufficient to support the district court’s conclusion that the

sentence it imposed was necessary to protect the public from future crimes by

Barnes, deter others from similar crimes, and communicate the seriousness of

Barnes’s crimes.

      Thus, because the district court properly considered the § 3553(a) factors

and imposed a sentence no greater than necessary to comply with the purposes of

sentencing, the court did not abuse its discretion in sentencing Barnes.

      Accordingly, we affirm.

      AFFIRMED.




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