                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                MAR 17, 2010
                           Nos. 09-14407 and 09-14408            JOHN LEY
                             Non-Argument Calendar                 CLERK
                           ________________________

                     D. C. Docket Nos. 08-00104-CR-JRH-1
                             & 09-00042-CR-JRH-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                      versus

DONALD BERNARD KELLY,

                                                             Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Georgia
                         _________________________

                                 (March 17, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Donald Bernard Kelly appeals his 120-month sentence, imposed following

his convictions for bank robbery, in violation of 18 U.S.C. § 2113(a). After review
of the record, we affirm.

      Kelly pleaded guilty to two separate indictments, each charging him with

different bank robberies. The first robbery occurred in July 2008, in Macon,

Georgia. The second occurred about a week later in Augusta, Georgia. Although

the notes handed to the teller in each robbery stated that Kelly was armed, Kelly

did not use a weapon during the robberies.

      In calculating the advisory guidelines range, the probation officer did not

group the two offenses together, but the same calculations applied to each offense:

the base offense level was 20 under U.S.S.G. § 2B3.1(a), with 2 levels added

because Kelly took property of a financial institution, and another 2 levels added

because Kelly made a death threat. To account for the multiple offenses, §3D1.4,

the probation officer then added two levels to the adjusted offense level. With a 3-

level reduction for acceptance of responsibility, the total adjusted offense level was

23.

      The probation officer then detailed Kelly’s lengthy criminal history dating

back to 1986. Kelly had several prior convictions for burglary and theft. He also

had been convicted of bank robbery in 1995, and he committed the instant offenses

while on supervised release from the 1995 bank robbery. Nevertheless, most of

Kelly’s prior convictions were not assigned any criminal history points. In fact, of



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Kelly’s ten prior convictions, only two received criminal history points. Kelly’s

criminal history placed him in category IV, which yielded an advisory guidelines

range of 70 to 87 months’ imprisonment. The statutory maximum for bank

robbery is 20 years’ imprisonment. 18 U.S.C. § 2113(a).

      The court sentenced Kelly to 120 months’ imprisonment on each offense, to

run concurrently to each other but consecutively to any term that was later imposed

for the violation of Kelly’s supervised release. The court explained that the

aggravating circumstances were not adequately addressed by the guidelines, and

the sentencing factors in 18 U.S.C. § 3553(a) justified an upward variance. The

court noted Kelly’s repeated criminal conduct, citing his lengthy criminal history

and the fact that he had committed the two bank robberies while on supervised

release. Kelly now appeals the procedural and substantive reasonableness of his

sentence.

      We review sentencing determinations for reasonableness, which requires us

to apply a deferential abuse-of-discretion standard to the sentence of the district

court, “whether inside, just outside, or significantly outside the Guidelines

range. . . .” Gall v. United States, 552 U.S. 38, 41, 46 (2007). In conducting this

review, we invoke the following two-step process to evaluate procedural and

substantive reasonableness:



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       [We] must first ensure that the district court committed no significant
       procedural error, such as failing to calculate (or improperly
       calculating) the Guidelines range, treating the Guidelines as
       mandatory, failing to consider the § 3553(a) factors, selecting a
       sentence based on clearly erroneous facts, or failing to adequately
       explain the chosen sentence-including an explanation for any
       deviation from the Guidelines range. Assuming that the district court’s
       sentencing decision is procedurally sound, [we] . . . then consider the
       substantive reasonableness of the sentence imposed.

Id. at 51.

       Procedural soundness assumes that “[w]here the judge imposes a sentence

outside the Guidelines, the judge will explain why he has done so.” Rita v. United

States, 551 U.S. 338, 356-57 (2007). The judge must “properly calculate the

Guidelines range and include an explanation for any deviation from the Guidelines

range.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quotation

and alteration omitted). A greater variance from the applicable guideline range

should be “supported by a more significant justification” than a smaller variance.

Gall, 552 U.S. at 50. The judge’s statement, however, may be brief and is to be

evaluated in conjunction with the record and context of the case. Rita, 551 U.S. at

358-59. “The sentencing judge should set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Id. at 356.

       The substantive reasonableness of a sentence considers the totality of the



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circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). In

arriving at a substantively reasonable sentence, the district court must give

consideration to the sentencing factors listed in 18 U.S.C. § 3553(a). United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Those factors are:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need to reflect the seriousness
      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; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8)
      pertinent policy statements of the Sentencing Commission; (9) the
      need to avoid unwanted sentencing disparities; and (10) the need to
      provide restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)).

      “If the sentence is outside the guidelines range, we may consider the

deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation omitted). Extraordinary

circumstances are not required to justify a sentence outside the guidelines range,

Livesay, 525 F.3d at 1090, and “there is a range of reasonable sentences from

which the district court may choose,” Talley, 431 F.3d at 788. The burden of

establishing that the sentence is unreasonable considering both the record and the

§ 3553(a) factors is on the party challenging the sentence. Id.

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      After a review of the record and consideration of the parties’ briefs, we

conclude that Kelly failed to show that his sentence was either procedurally or

substantively unreasonable. The court correctly determined the guidelines range

and treated the guidelines as advisory. The court further explained its basis for

imposing an upward variance. Moreover, the district court did not abuse its

discretion in relying on the facts of Kelly’s past criminal history and recidivist

behavior, as these are factors to be considered under § 3553(a). Finally, the

sentence imposed was well below the statutory maximum sentence for bank

robbery.

      AFFIRMED.




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