                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________          FILED
                                                U.S. COURT OF APPEALS
                             No. 09-16410         ELEVENTH CIRCUIT
                                                      JUNE 2, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                    D. C. Docket No. 09-00054-CR-1-6

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

COREY DUKES,

                                                         Defendant-Appellant.


                       ________________________

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

                              (June 2, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Corey Dukes appeals his 20-month above-guidelines-range sentence for a

single count of passing and uttering, with intent to defraud, counterfeit Federal

Reserve notes, in violation of 18 U.S.C. § 472. On appeal, he contends that the

district court’s imposition of an upward variance over the 6 to 12 month guideline

imprisonment range rendered his sentence substantively unreasonable and violative

of 18 U.S.C. § 3553(a). Specifically, he asserts that the district court’s application

of the § 3553(a) factors to justify the upward variance was unreasonable because

the guidelines range already accounted for the same § 3553(a) factors.

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

discretion standard, whether the sentence falls “inside, just outside, or significantly

outside” the applicable advisory guidelines range. Gall v. United States, 552 U.S.

38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

      “[T]he party who challenges the sentence bears the burden of establishing

that the sentence is unreasonable.” United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). A sentence is substantively unreasonable if, under the totality of

the circumstances, it fails to achieve the purposes of sentencing listed in § 3553(a).

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

      The § 3553(a) factors are:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need for the sentence

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         imposed–(A) to reflect the seriousness of the offense, to promote
         respect for the law, and to provide just punishment for the offense;
         (B) to afford adequate deterrence to criminal conduct; (C) to protect
         the public from further crimes of the defendant; and (D) to provide the
         defendant with needed educational or vocational training, medical
         care, or other correctional treatment in the most effective manner;
         (3) the kinds of sentences available; (4) [the sentencing guidelines
         range;] (5) any pertinent policy statement [of the Sentencing
         Commission;] (6) the need to avoid unwarranted sentence disparities
         among defendants with similar records who have been found guilty of
         similar conduct; and (7) the need to provide restitution to any victims
         of the offense.

18 U.S.C. § 3553(a). In addition, the district court must impose a sentence that is

“sufficient, but not greater than necessary, to comply with the purposes set forth in

[§ 3553(a)(2)].” Id.

         “[W]e recognize that there is a range of reasonable sentences from which the

district court may choose.” Talley, 431 F.3d at 788. Moreover, in reviewing the

substantive reasonableness of a sentence, we have compared the actual sentence

imposed to the applicable statutory maximum term of imprisonment. See, e.g.,

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert. denied, 129

S.Ct. 2848 (2009); United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005).

         More particularly, “[i]n reviewing the reasonableness of a sentence outside

the Guidelines range, appellate courts may [ ] take the degree of variance into

account and consider the extent of a deviation from the Guidelines.” Gall, 552

                                            3
U.S. at 47, 128 S.Ct. at 594-95. Generally, “a major departure [, i.e., variance,]

should be supported by a more significant justification than a minor one.” Id. at 50,

128 S.Ct. at 597. Nevertheless, no “presumption of unreasonableness” attaches to

a sentence outside the guidelines range. Id. at 47, 128 S.Ct. at 595. Likewise,

“quantifying the variance as a certain percentage of the maximum, minimum, or

median prison sentence recommended by the Guidelines” is unhelpful because

“deviations from the Guidelines range will always appear more extreme–in

percentage terms–when the range itself is low.” Id. at 48, 128 S.Ct. at 595.

      In sum, “[b]ecause of its institutional advantage in making sentence

determinations, a district court has considerable discretion in deciding whether the

§ 3553(a) factors justify a variance and the extent of one that is appropriate.”

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.) (quotations and citation

omitted), cert. denied, 129 S.Ct. 2847 (2009). Stated differently,

      [w]e may vacate a sentence because of the variance 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.

Id. (quotation omitted). “[T]hat we might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal.” Id. (quotation

omitted).



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      In sentencing the appellant, the district court gave this explanation:

      Now the court has conducted an upward variance here pursuant to the
      factors identified in 18 U.S.C. 3553(a).

      As I said on two or three occasions here in the last few minutes, this is
      not the Defendant’s first criminal endeavor. He has two prior felony
      convictions: burglary of a conveyance and delivery of cocaine. Now
      granted, the Defendant’s convictions occurred when he was several
      years younger. But the treatment of those offenses that are in a
      Category I gives him great benefit and leniency and does not, in the
      Court’s opinion, adequately reflect the history and characteristics of
      this Defendant.

      As the prosecutor pointed out, he had opportunities to withdraw. He
      made one previous criminal excursion in this area. And so, the
      advisory sentence in this case, the Court finds, does not adequately
      address the offense.

      Upon consideration of the record on appeal, and after review of the parties’

briefs, we hold that the district court’s imposition of the upward variance did not

amount to an abuse of discretion. Specifically, Dukes’s sentence was well below

the statutory maximum term of imprisonment and exceeded the top end of the

guidelines range by only eight months. Additionally, the district court, in

justifying the upward variance, applied the 18 U.S.C. § 3553(a) factors in a

reasonable fashion, even if the guidelines range itself already accounted for many

of the same factors. As a result, we cannot say that Dukes’s sentence was

substantively unreasonable. We therefore affirm.

      AFFIRMED.

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