             Case: 19-10023    Date Filed: 11/04/2019   Page: 1 of 17


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 19-10023
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:15-cr-20821-JEM-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

VERGIL VLADIMIR GEORGE,

                                                             Defendant-Appellant.

                        __________________________

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

                              (November 4, 2019)

Before TJOFLAT, GRANT and HULL, Circuit Judges.

PER CURIAM:

      For the third time, Vergil Vladimir George appeals his total 259-month

sentence, imposed after a jury convicted him of multiple crimes stemming from his
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drug-dealing and identity-theft activities. In the first appeal, this Court affirmed

the advisory guidelines calculations, but vacated George’s sentence and issued a

limited remand because the district court did not allow George to allocute. United

States v. George, 872 F.3d 1197, 1204–09 (11th Cir. 2017) (“George I”). In the

second appeal, we again vacated George’s sentence and issued another limited

remand because this time the district court allowed George to allocute but did not

allow the parties to argue in support of a particular sentence. United States v.

George, 752 F. App’x 816, 820–21 (11th Cir. 2018) (unpublished) (“George II”).

At the second resentencing, the district court heard both George’s allocution and

counsel’s arguments. In the instant appeal, George now challenges the procedural

and substantive reasonableness of his total 259-month sentence imposed during his

second resentencing. After review, we affirm.

                                I. BACKGROUND

A. Underlying Convictions

      As set forth in George I, the trial evidence showed that George ran his drug-

dealing and identity-theft operations out of his apartment and his barbershop and

used the proceeds from his illegal activities to pay for, among other things, more

drugs and exotic car rentals. 872 F.3d at 1200–01. Federal Bureau of

Investigation (“FBI”) agents conducted a search of the barbershop, pursuant to a

warrant, and discovered heat sealers, scales, marijuana, a drug kit, cocaine residue,

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a firearm, a box of ammunition for a different firearm, a credit card embosser, a

computer, devices used to read credit cards, stacks of prepaid gift cards, numerous

cell phones, numerous credit cards, a thumb drive, and a Western Union card. Id.

at 1201. At trial, FBI agents, an FBI informant, one of George’s coworkers, and

other drug dealers testified. Id. at 1199–1201. The jury also heard George’s

recorded interview with FBI agents wherein he admitted that the firearm found in

the barbershop was his and two recorded phone calls wherein he offered to sell

large amounts of cocaine to the FBI informant. Id. at 1200–01.

      Ultimately, the jury convicted George on six felony counts: (1) conspiracy to

possess with intent to distribute five or more kilograms of cocaine and a detectable

amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),

(b)(1)(D), 846 (Count 1); (2) conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a) (Count 3); (3) being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 4); (4) possession of 15 or

more unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3), 2

(Count 5); and (5) two counts of aggravated identity theft, in violation of 18 U.S.C.

§§ 1028A(a)(1), 2 (Counts 6 and 7). Id. at 1202.

B. Initial Sentencing

      George’s presentence report (“PSR”) assigned him a total offense level of 36

and a criminal history category III, which yielded an advisory guidelines range of

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235 to 293 months for Counts 1, 3, 4, and 5. Id. Counts 6 and 7 (the aggravated

identity theft convictions) each carried a mandatory consecutive term of 24

months’ imprisonment to be imposed concurrently or consecutively to each other.

Id. George requested a downward variance to a total sentence of 145 months’

imprisonment, consisting of 121-month concurrent terms for each of Counts 1, 3,

4, and 5, followed by the mandatory 24-month terms for Counts 6 and 7, to run

concurrently to each other. In support, George argued that he had a troubled

background but nevertheless was a hard-working family man who had good

relationships with his son and friends.

      At George’s initial sentencing hearing, the district court stated that it had

reviewed the PSR and found that the advisory guidelines range was 235 to 293

months as to Counts 1, 3, 4, and 5. The district court stated that it understood that

Counts 6 and 7 carried mandatory 24-month terms, which would run consecutively

to the other counts but could run either consecutively or concurrently to each other.

Then, the district court stated that it had reviewed George’s motion for a

downward variance and heard the parties’ arguments on his motion and for a

reasonable sentence. George largely reiterated his arguments from his motion,

adding that his offenses were not serious because no drugs were actually found at

the barbershop or his home, the witnesses testified to lower, personal-use amounts

of drugs, and there was no loss from the fraud or the Hobbs Act robbery.

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      In opposition, the government argued that: (1) George’s offenses were

serious because he handled kilogram-quantities of drugs, he possessed a firearm,

he ran a sophisticated fraud operation, and his unsuccessful Hobbs Act robbery

posed a risk of violence; (2) he had an extensive criminal history; (3) there was a

strong need to deter others from thinking that they could participate in similar

conduct to get rich quick; and (4) the community was better off without George

and needed to be protected from his future crimes.

      The district court rejected George’s attempts to minimize his offenses and

implicitly denied his downward-variance motion. Specifically, the district court

stated that George was a “con man” who supported his extravagant lifestyle with

his illegal activities, that there was a strong need for deterrence, that George should

be an example for others, that he was trying to be “a bad guy” or a “hood,” and that

the lack of drugs discovered, financial loss, or violence in this case was not “for

lack of trying.” Thereafter, the district court stated that it had considered the

parties’ statements, the PSR containing the advisory guidelines range, and the 18

U.S.C. § 3553(a) factors. Before pronouncing its sentence, the district court stated

that, “in addition to the statutory consecutive sentence the court must impose, a

sentence within, but at the low end, of the advisory guidelines range will provide

sufficient punishment and adequate deterrence.”




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       After all of these explanations, the district court sentenced George to a total

sentence of 259 months’ imprisonment—concurrent terms of 235 months as to

each of Counts 1 and 3 and 120 months as to each of Counts 4 and 5,1 and two

terms of 24 months as to Counts 6 and 7, to run concurrently to each other but

consecutively to the remaining counts. Id. at 1203. The district court, however,

did not give George an opportunity to allocute. Id. at 1203, 1206.

C. First Appeal

       On direct appeal, this Court affirmed the district court’s application of the

sentencing guidelines but vacated George’s total sentence and issued a limited

remand to allow George to allocute. Id. at 1204–09. We clarified, however, that

George was “not entitled to an entirely new resentencing—he may not reassert or

reargue any of his objections to the PSR, file new objections to the PSR, or file a

new sentencing memorandum.” Id. at 1209. In this first appeal, we did not reach

the issue of substantive reasonableness. Id.

D. First Resentencing

       At his first resentencing, the district court allowed George to allocute but

heard no arguments due to the district court and the parties’ mutual belief that

George’s allocution was the only relevant matter for resentencing. See George II,



       1
         The statutory maximum term for Counts 4 and 5 was ten years’ imprisonment. George
I, 872 F.3d at 1202 n.5.
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752 F. App’x at 820. In his allocution, George proclaimed his innocence,

referenced “several significant errors that occurred during [his] trial,” requested not

to be punished for exercising his right to trial, asked for the district court’s mercy

and forgiveness, referenced his newfound religion, apologized to the district court

and to his family, and stated that he had reflected on his sentence and wished to

spend time with his children and family.

      The district court stated again that it had considered the parties’ statements,

the PSR containing the advisory guidelines range, and the § 3553(a) factors, and

found that, “in addition to the statutory consecutive sentence that the Court must

impose, a sentence within, but at the low end of the advisory guidelines range, will

provide sufficient punishment and adequate deterrence.” The district court then

imposed the same sentence of concurrent terms of 235 months as to Counts 1 and 3

and 120 months as to Counts 4 and 5, plus two terms of 24 months as to Counts 6

and 7, to run concurrently to each other but consecutively to the remaining counts.

E. Second Appeal

      On direct appeal from this first resentencing, this Court again vacated

George’s sentence and remanded. Id. at 820–21. We concluded “that the parties

and the district court labored under a mutual misunderstanding as to the scope of

this Court’s limited remand” in George I. Id. at 820. We explained that the

remand’s scope “did not preclude either George or the government from arguing

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for a particular sentence, in light of the aggravating and mitigating sentencing

factors,” which included George’s allocution. Id.

      However, in determining the scope of our second limited remand, we

rejected George’s argument that he was entitled to a de novo resentencing or to a

resentencing in which he could reargue issues regarding his guidelines

calculations. Id. at 821. We clarified that, on the second remand, the district court

was not required to “impose any particular sentence or a lower sentence” and was

not precluded from “impos[ing] the same sentence if it determines, after allocution

and counsels’ argument[s], that sentence remains the appropriate sentence.” Id.

Similar to before, we added (1) that “George may not reargue issues already or

necessarily decided during the first sentencing that either have been affirmed on

appeal or could have been but were not raised before now”; and (2) that “[t]his

restriction would include objections to George’s PSR or the district court’s

advisory guidelines calculations.” Id. at 821–22. We also directed the district

court upon a second resentencing to: (1) address George personally and permit him

to allocute; (2) resume the sentencing proceedings from that point and allow

counsel to argue for a particular total sentence in light of the § 3553(a) factors and

the record, including any further allocution by George; and (3) only after

considering the record—including George’s allocution, the § 3553(a) factors, and

the parties’ arguments—select and pronounce the total sentence. Id. at 821.

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F. Second Resentencing

       At his second resentencing, the district court again allowed George to

allocute, during which he stated that he was a new man, had engaged in numerous

“proactive activit[ies]” while incarcerated, and made “major self-adjustments.”

Specifically, he had enrolled in various self-help and rehabilitation prison

programs, tutored other inmates, wrote an anti-bullying book, started accepting

responsibility for his actions rather than blaming others, and realized the harmful

impact his actions had on his family members. He also highlighted his strong

support system and employment opportunities outside of prison and asked for

forgiveness.

       After George’s allocution, the parties made their arguments regarding

George’s downward-variance motion and for a reasonable sentence. George

sought a downward variance to “a sentence of 180 months plus two years on

[Counts 6 and 7] for a total of 204 months.” 2 George highlighted his rehabilitative

progress, his personal growth over the past few years while in prison, his remorse

over his offense conduct, the pain he caused his family, and his promising post-

prison prospects. The government reiterated the nature and seriousness of

George’s offenses, his characteristics, and the need to afford deterrence. The

       2
        While not articulated, it appears that defense counsel’s requested 204-month sentence
was based on proposed concurrent terms of 180 months as to Counts 1 and 3 and 120 months as
to Counts 4 and 5, and two terms of 24 months as to Count 6 and 7, to run concurrently to each
other but consecutively to the remaining counts.
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government requested the same sentence of concurrent terms of 235 months as to

Counts 1 and 3 and 120 months as to Counts 4 and 5, plus two terms of 24 months

on Counts 6 and 7, to run concurrently to each other but consecutively to the

remaining counts.

      After George’s allocution and hearing the parties’ arguments, the district

court imposed the same total 259-month sentence. The district court explained that

the total sentence consisted of concurrent terms of 235 months as to Counts 1 and 3

and 120 months as to Counts 4 and 5, plus two terms of 24 months as to Count 6

and 7, to run concurrently to each other but consecutively to the other counts. In

support of its sentence, the district court explained:

      I gave good consideration to this. I remember the case very well. I
      remember the barbershop, I remember everything about this case. Now
      I’m hoping that this Criminal Justice Reform Act that has just been
      passed will help Mr. George, but I do not believe that a lower sentence
      is justified at this particular time.

Although twice before the district court had mentioned the PSR containing the

advisory guidelines range, the parties’ arguments, and the § 3553(a) factors, this

time the district court did not mention that it considered them again in fashioning

its sentence. George objected to the sentence on procedural and substantive

reasonableness grounds. This appeal followed.




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                                       II. DISCUSSION

       George argues that his total 259-month sentence is unreasonable. Generally,

we review the reasonableness of a sentence under a deferential abuse-of-discretion

standard using a two-step process. United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010). “We look first at whether the district court committed any

significant procedural error and then at whether the sentence is substantively

reasonable under the totality of the circumstances.” Id. George, as the party

challenging the sentence, bears the burden to show that his sentence is

unreasonable in light of the record and the § 3553(a) factors. Id.

A. Procedural Reasonableness

       George argues that the district court procedurally erred by failing to provide

a sufficient statement of reasons for its sentence as required under § 3553(c)(1). 3

Under § 3553(c)(1), a district court “at the time of sentencing, shall state in open

court the reasons for its imposition of the particular sentence.” 18 U.S.C.

§ 3553(c)(1). In doing so, the district court should “tailor its comments to show

that the sentence imposed is appropriate” in light of the § 3553(a) factors. 4 United

States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006).


       3
        We review de novo whether the district court’s explanation of its sentence complied
with § 3553(c)(1), regardless of whether the defendant objected on such grounds at sentencing.
United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006).
       4
        The § 3553(a) factors include, of relevance: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness
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       That said, the district court is not required to incant specific language or

articulate its consideration of each individual § 3553(a) factor, so long as the whole

record reflects the district court’s consideration of the § 3553(a) factors. Id. at

1181–82. When the district court fails to mention the § 3553(a) factors, we look to

the record to see if the district court did, in fact, consider the relevant factors. See

United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). When pronouncing

its chosen sentence, the district court need only set forth enough to satisfy us that it

considered the parties’ arguments and had a reasoned basis for exercising its own

legal decisionmaking authority. United States v. Carpenter, 803 F.3d 1224, 1232

(11th Cir. 2015).

B. Instant Appeal

       The outcome of this appeal depends upon whether we review the district

court’s statements at the second resentencing hearing in isolation, or in context

with its statements at the two prior sentencing hearings. George focuses solely on

the district court’s brief explanation of its sentence at the second resentencing

hearing. He contends that the district court completely failed to explain why it was

imposing the exact same total sentence. He stresses that the district court made no




of the offense, to promote respect for the law, and to provide just punishment for the offense;
(3) the need for deterrence; (4) the need to protect the public; (6) the kinds of sentences
available; and (7) the sentencing guidelines range. 18 U.S.C. § 3553(a)(1)–(4), (6)–(7).
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mention of his statement of complete contrition, how he is now a different man

than who he was at initial sentencing, or counsel’s downward-variance argument.

      In contrast, the government argues that, when reviewing the record as a

whole, and considering the second resentencing in context with the prior hearings,

the district court sufficiently explained its sentence.

      Given the history of this case, and that the jury trial and all three sentencing

hearings were presided over by the same district court judge, we find it appropriate

to consider the entire record, rather than considering only the third hearing in

isolation. Here, the record as a whole shows that the district court expressly

articulated that it had considered the § 3553(a) factors, the PSR containing the

advisory guidelines range, and the parties’ arguments. Indeed, in the various

arguments before the district court, the parties had discussed the majority of the

§ 3553(a) factors—namely, George’s history and characteristics, the nature and

seriousness of the offenses, and the needs for deterrence and to protect the public.

The district court also heard George’s allocutions touching upon his personal

history and characteristics and the needs for deterrence and to protect the public.

      Moreover, at the initial sentencing hearing, the district court provided a

sufficiently in-depth explanation of its sentence—focusing on the seriousness of

George’s offenses despite his attempts to minimize his conduct, his history and

characteristics of being a “con man” who supported his extravagant lifestyle with

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his illegal activities, and the need for general deterrence by making him an

example to others. See George I, 872 F.3d at 1203. Then, in attempted

compliance with our mandates, the district court upon the first and second

resentencings picked up where it left off, and without rehashing its prior

explanations, provided shorter explanations at the first and second resentencings.

At the last sentencing hearing, the district court made clear that it had given “good

consideration” to George’s case, that the district court “remember[ed]” his case

“very well,” and that the district court did not “believe that a lower sentence [was]

justified at this particular time,” after hearing George’s allocution and counsel’s

arguments.

      Given the unique procedural history here and the fact that the same judge

presided over all of the proceedings, we conclude that we should look to the record

as a whole and that the district court was not required to give another lengthy

explanation at the third hearing. See Carpenter, 803 F.3d at 1232; Dorman, 488

F.3d at 944; Bonilla, 463 F.3d at 1181–82. Accordingly, George has not shown

that the district court erred or abused its discretion in explaining his sentence. See

Tome, 611 F.3d at 1378; Bonilla, 463 F.3d at 1181.

C. Substantive Reasonableness

      As to substantive reasonableness, George argues that his total 259-month

sentence is greater than necessary to satisfy the purposes of sentencing. Under the

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abuse-of-discretion standard, we will vacate a sentence on substantive

reasonableness grounds 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. Irey, 612 F.3d 1160,

1190 (11th Cir. 2010) (en banc) (quotation marks omitted). We will not “set aside

a sentence merely because we would have decided that another one is more

appropriate” and we ensure only that the district court’s sentence is a reasonable

one. Id. at 1191. When a district court imposes a sentence within the advisory

guidelines range, we ordinarily will expect the sentence to be a reasonable one.

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Further, a

district court may attach great weight to one factor over others, and the weight it

attaches to any one factor is committed to its sound discretion. United States v.

Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015).

      As a threshold matter, substantive reasonableness review does not apply to

George’s consecutive 24-month sentences for the identity-theft convictions in

Counts 6 and 7 because those were statutory mandatory minimum sentences. See

United States v. Castaing-Sosa, 530 F.3d 1358, 1361–62 (11th Cir. 2008). As this

Court has held, “§ 3553(a) plainly does not confer upon the district court the

authority to sentence a defendant below the statutory mandatory minimum based

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on its consideration of the § 3553(a) factors.” Id. at 1361. “Booker made advisory

the Sentencing Guidelines, not statutory mandatory minimums enacted by

Congress,” and thus § 3553(a) does not apply. Id. at 1362 (citing United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005)). Notably too, the district court had

authority to make those two 24-month sentences run consecutively to each other

but did not do so. While the district court had to make those sentences run

consecutively to the other counts, the district court imposed them concurrently to

each other, which in itself is a sign of reasonableness. Thus, we focus on the

district court’s advisory-guidelines-range sentence of 235 months as to Counts 1

and 3.5

       Here, George’s 235-month concurrent sentences as to Counts 1 and 3 fall at

the very bottom of the 235-to-293-month advisory guidelines range for those

counts. See Docampo, 573 F.3d at 1101; George I, 872 F.3d at 1202.

Nevertheless, George argues that his within-guidelines-range sentence is still

substantively unreasonable because the government’s case against him was weak,

no large amounts of drugs or firearms were found, his case did not involve

violence, and he has “undergone a serious rehabilitation while incarcerated.”

However, the district court was well within its substantial discretion to weigh more



       5
       George does not explicitly challenge his 120-month statutory maximum sentences as to
Counts 4 and 5 and never argued for sentences below 120 months on those counts.
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heavily other considerations, like (1) George’s history and characteristics of

supporting his extravagant lifestyle with his illegal, “con man” activities; (2) the

seriousness, nature, and circumstances of his offenses, which may not have

involved the highest amount or degree of drugs, financial loss, or violence, but

wasn’t “for lack of trying”; and (3) the strong need for deterrence. See 18 U.S.C.

§ 3553(a)(1)–(3); Rosales-Bruno, 789 F.3d at 1254; George I, 872 F.3d at 1203.

       Accordingly, George has failed to show that “the district court committed a

clear error of judgement in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of [this]

case.” See Irey, 612 F.3d at 1190 (quotation marks omitted). 6

                                    III. CONCLUSION

       Because George has failed to show any procedural or substantive

unreasonableness, we affirm his sentences.

       AFFIRMED.




       6
         Because we affirm George’s sentence, we deny as moot his request to assign his case to
a different district court judge for a third resentencing. Likewise, we deny the government’s
motion to supplement the record with new evidence.
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