            Case: 19-13230   Date Filed: 05/07/2020   Page: 1 of 8



                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13230
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:17-cr-00021-RWS-JCF-1



UNITES STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


EDWARD L. POWELL,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 7, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM:
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      Edward Powell was sentenced to 300 months in prison after pleading guilty

to two counts of bank robbery and two counts of brandishing a firearm in furtherance

of a crime of violence. On appeal, he argues that his sentence was substantively

unreasonable. We disagree and affirm.

        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      Powell was arrested in an otherwise unrelated matter after leading law

enforcement officers on a high-speed chase. While Powell was in jail, the Georgia

Bureau of Investigation determined that Powell’s DNA matched the DNA found on

a mask that had been left behind at the scene of a Branch Bank & Trust robbery.

During that robbery, a masked bandit locked two bank employees in the vault after

holding them at gunpoint and stealing $58,896.50 in cash from the bank. Law

enforcement also connected Powell to a robbery at the Piedmont Bank, in which a

man held a bank employee at gunpoint. This time, however, the employee convinced

the robber that she could not open the bank’s vault. As a result, the man stole the

employee’s music player and cell phone, tied her hands with shoelaces, and left her

in the men’s bathroom.

      A grand jury charged Powell with two counts of armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d). The grand jury also charged Powell with

two counts of brandishing a firearm in furtherance of a crime of violence, in violation

of 18 U.S.C. § 924(c)(1)(A)(ii). Powell entered a guilty plea.


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       The presentence investigation report calculated Powell’s guideline range for

the armed bank robbery charges at 92 to 115 months. The report also concluded that

each robbery count carried a maximum sentence of twenty-five years in prison and

that each count of brandishing a firearm carried mandatory minimum sentences of

seven years, to be run consecutive to the robbery counts and each other. Powell did

not object to the report.

       The district court adopted the report’s guideline calculation and found that the

criminal history category of V understated Powell’s criminal history, that there was

a need for general and specific deterrence, and that Powell had previously served a

sentence of twenty-two years for a similar crime. The district court sentenced Powell

to 300 months in prison, which included an upward variance to 132 months for the

two robbery counts and consecutive sentences of eighty-four months for the two

counts of brandishing a firearm. The court also sentenced Powell to four concurrent

five-year terms of supervised release and ordered him to pay $58,596.50 in

restitution.

                                   DISCUSSION

       On appeal, Powell contends that his above-guideline sentence was

substantively unreasonable because his criminal history, which included crimes he

committed “as a young man,” artificially inflated his guideline range and because he

should have received more mitigation based on his mental health issues and


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acceptance of responsibility. The substantive reasonableness of a sentence is

reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). This

court must consider the totality of the circumstances, including the extent of any

variance from the guideline range. Id. The district court abuses its discretion if it

“(1) fails to afford consideration to relevant factors that were due significant weight;

(2) gives significant weight to an improper or irrelevant factor; or (3) commits a

clear error of judgment in considering the proper factors.” United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc). The party challenging the sentence

bears the burden of establishing that it is unreasonable considering the record and

the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      The district court “shall impose a sentence sufficient, but not greater than

necessary,” to (1) reflect the seriousness of the offense, (2) promote respect for the

law, (3) provide just punishment for the offense, (4) afford adequate deterrence to

criminal conduct, and (5) protect the public. 18 U.S.C. § 3553(a), (2)(A)–(C). The

district court must also consider (1) the nature and circumstances of the offense and

the history and characteristics of the defendant, (2) the kinds of sentences available,

(3) the guideline sentencing range, (4) any pertinent policy statements, (5) the need

to avoid unwarranted sentencing disparities among defendants with similar records

who have been convicted of similar conduct, and (6) the need to provide restitution

to any victims. Id. § 3553(a)(1), (3)–(7).


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      A district court may attach great weight to a single factor. United States v.

Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The weight given to any § 3553(a)

factor is left to the sound discretion of the district court, and we will not substitute

our own judgment by reweighing the § 3553(a) factors. Id. The justification for a

variance “must be sufficiently compelling to support the degree of the variance.”

Irey, 612 F.3d at 1186–87. We do not presume that a sentence outside the guideline

range is unreasonable, and we give deference to the district court’s decision that the

§ 3553(a) factors support its sentence. Id. at 1187.

      The district court gave several reasons for its seventeen-month variance: (1)

the impact on the victim; (2) the guideline range calculation understated Powell’s

criminal history because it left out crimes Powell had committed in his early

twenties; (3) deterring Powell, who already had served lengthy prison sentences for

similar conduct; (4) the court’s obligation to protect the public from Powell’s

repeated conduct; and (5) the need to avoid sentencing disparities. The upward

variance was not an abuse of discretion.

      First, Powell’s sentence, though a seventeen-month upward variance from the

top of the guideline range, was well below the statutory maximum, which is an

indicator of a reasonable sentence. See United States v. Stanley, 739 F.3d 633, 656

(11th Cir. 2014) (“A sentence imposed well below the statutory maximum penalty

is an indicator of a reasonable sentence.”). Powell’s eleven-year sentence was


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fourteen years below the maximum sentence of twenty-five years for each of the

robbery counts, and his overall sentence of twenty-five years was well below the life

sentence he could have received.

      Second, as the district court explained, Powel has shown an escalating pattern

of theft-related crimes throughout his adult life, undeterred by either probation or

incarceration: grand theft in 1989 (probation); burglary of a dwelling in 1989

(probation); burglary of a dwelling in 1991 (four years in prison after a violation of

probation); and three counts of robbery with a firearm and one count of grand theft

in 1992 (twenty-two years in prison). Powell returned to prison in 2002 for fleeing

or attempting to elude a law enforcement officer (7.615 years). Because Powell

committed some of these crimes in his early twenties—decades before the armed

bank robberies—they were not included in his criminal history calculation, U.S.S.G.

§ 4A1.2(e), but they do show a lifelong pattern of criminal conduct.

      Powell’s graduation to bank robbery gave the district court ample reason to

be concerned that a guideline sentence would not deter Powell from continuing this

pattern and endangering the public. As the court explained to Powell at sentencing,

“You lose many of the good years of your life sitting in a prison cell, and yet you

found your way back to this.” We cannot conclude that a seventeen-month variance

was substantively unreasonable.




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      Contrary to Powell’s argument that the district court erred when it failed to

consider that “Powell’s criminal history points derive from convictions that occurred

over 27 years ago, when he was just 24 years old,” the district court explicitly

considered this factor when it determined that Powell’s criminal history was

“understated” because it did not include any points for some of the crimes Powell

had committed as a young adult. There is no question that the district court

considered Powell’s age when he committed his various crimes.

      Powell also argues that the district court should have given more weight to the

psychological trauma Powell endured when two members of his immediate family

died while he was in prison and to “the fact that Mr. Powell’s conduct occurred after

and in response to his discovery that his mother was facing foreclosure on her home.”

The district court considered both these factors, comparing the losses Powell

experienced in his family with the trauma his victims experienced and discussing the

heartache Powell’s (now deceased) mother would have experienced had she heard

Powell say he robbed the banks to solve her financial woes. As part of our

substantive reasonableness review, we do not second-guess the weight the district

court gave to the mitigating factors, which included Powell’s acceptance of

responsibility, his issues with depression, and his worry that his mother’s home

would be foreclosed if he did not rob two banks and take $58,896.50, a music player,

and a cell phone. See Kuhlman, 711 F.3d at 1327 (“We have held that the weight to


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be accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court, and we will not substitute our judgment in weighing the relevant

factors.” (quotation marks omitted and alteration adopted)). It is enough that the

district court considered all the statutory factors, considered Powell’s arguments,

and reached a reasonable conclusion.

                                  CONCLUSION

      Because the district’s seventeen-month variance from the guideline range was

not substantively unreasonable, we affirm.

      AFFIRMED.




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