             Case: 17-14323    Date Filed: 04/16/2018   Page: 1 of 8


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-14323
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:17-cr-00019-DHB-BKE-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus



DAVID DANIEL MAGNESS,

                                                            Defendant-Appellant.

                        __________________________

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

                                (April 16, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      David Daniel Magness, a federal prisoner who pled guilty to two counts of

wire fraud in violation of 18 U.S.C. § 1343, appeals his 48-month total sentence.
              Case: 17-14323     Date Filed: 04/16/2018   Page: 2 of 8


On appeal, Magness argues that: (1) the district court’s imposition of an above-

guideline sentence pursuant to 18 U.S.C. § 3553(a) was substantively

unreasonable; and (2) the district court violated Fed. R. Crim. P. 32(h) by

considering Magness’s criminal history as a basis for departure without giving the

parties prior notice. After careful review, we affirm.

      We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). When a party did not raise a sentencing issue before the district court,

we will review under the plain error standard. United States v. Lange, 862 F.3d

1290, 1293 (11th Cir.), cert. denied, 138 S. Ct. 488 (2017). To establish plain

error, the defendant must show (1) an error, (2) that is plain, and (3) that affected

his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007). If the defendant satisfies these conditions, we may exercise our discretion

to recognize the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

      First, we are unconvinced by Magness’s claim that his 48-month total

sentence was substantively unreasonable.          In reviewing the “‘substantive

reasonableness of [a] sentence imposed under an abuse-of-discretion standard,’”

we consider the “‘totality of the circumstances.’” Pugh, 515 F.3d at 1190 (quoting


                                          2
                 Case: 17-14323       Date Filed: 04/16/2018       Page: 3 of 8


Gall v. United States, 552 U.S. 38, 51 (2007)). The district court must impose a

sentence “sufficient, but not greater than necessary to comply with the purposes”

listed in 18 U.S.C. § 3553(a). 1 The court must consider all of the § 3553(a)

factors, but it may give greater weight to some factors over others -- a decision

which is within its sound discretion. United States v. Rosales-Bruno, 789 F.3d

1249, 1254 (11th Cir. 2015). A sentence may be substantively unreasonable when

a court unjustifiably relies on any single § 3553(a) factor, fails to consider

pertinent § 3553(a) factors, bases the sentence on impermissible factors, or selects

the sentence arbitrarily. Pugh, 515 F.3d at 1191-92. A sentence that suffers from

one of these symptoms is not per se unreasonable; rather, we must examine the

totality of the circumstances to determine the sentence’s reasonableness. Id. at

1192. “[W]e will not second guess the weight (or lack thereof) that the [court]

accorded to a given [§ 3553(a)] factor . . . as long as the sentence ultimately

imposed is reasonable in light of all the circumstances presented.” United States v.

Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis

omitted). We will vacate a sentence only if we “are left with the definite and firm


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                 3
              Case: 17-14323     Date Filed: 04/16/2018    Page: 4 of 8


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. at 1190 (quotation

omitted).

       If the court varied from the guideline range after weighing the § 3553(a)

factors, we “may not presume that [the] sentence . . . is unreasonable and must give

due deference to the district court’s decision . . . .” United States v. Irey, 612 F.3d

1160, 1187 (11th Cir. 2010) (en banc) (quotation omitted). In addition, we may

take the degree of variance into account and consider the extent of a deviation from

the guidelines. Gall, 552 U.S. at 47. A major variance should be supported by a

more significant justification than a minor variance, and the justification must be

sufficiently compelling to support the degree of the variance. Id. at 50. However,

there is no rigid mathematical formula that uses the percentage of a departure as

the standard for determining the strength of the justifications required for a specific

sentence. Id. at 47.

      A district court is not required to ignore what it has learned from similar

cases over the years. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009).

A sentence imposed well below the statutory maximum penalty is an indicator of a

reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008) (holding that the sentence was reasonable in part because it was well


                                          4
              Case: 17-14323    Date Filed: 04/16/2018   Page: 5 of 8


below the statutory maximum).        The district court may, in determining a

reasonable sentence, consider facts that have already been taken into account in

calculating the guideline range. United States v. Williams, 526 F.3d 1312, 1324

(11th Cir. 2008). The party challenging the sentence bears the burden to show it is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      Magness has not shown that his sentence was substantively unreasonable.

According to the presentence investigation report (“PSI”), which was adopted by

the court without objection, Magness was employed as the parts department

manager for an automobile dealership when he secretly used his employer’s

account to purchase winches and other items over a three-year period. Magness

then sold the items on his personal eBay account and retained all of the profits.

Magness was held responsible for the total monetary loss to the dealership of

$389,718.00 for 378 winches, and an unknown quantity of other items. The

district court sentenced Magness to 48 months’ imprisonment, which was a

variance of 15 months above the high end of the 27-33 month guideline range.

      Even assuming the district court’s sentence included a “major” variance

requiring a more significant justification, the record reveals that the court relied

upon reasons sufficiently compelling to justify the variance. Gall, 552 U.S. at 50.

For starters, the court considered Magness’s history and personal characteristics,

and determined that his age (46 years old) and his earlier “scrapes” with the law


                                         5
              Case: 17-14323     Date Filed: 04/16/2018   Page: 6 of 8


indicated that he should have known better.          In addition, Magness had been

charged with and convicted of similar crimes involving theft from his employers,

but none of these other crimes were reflected in the advisory guideline range.

Meanwhile, the court considered and was “duly sympathetic” to Magness’s

mitigating factors -- including his medical and living expenses -- and was within its

discretion to assign those factors minimal weight.

      The court also discussed the nature and circumstances of Magness’s offense,

and how they warranted an increased sentence. Relying on the PSI, the court

reasonably concluded that the guideline range, which was based on a loss amount

of $389,718.00, did not properly account for the full loss amount. Further, even if

the full loss amount had already been factored into the guideline range, the court

could have properly considered that amount in determining a reasonable sentence.

Williams, 526 F.3d at 1324.        The court also found that Magness was not

forthcoming in providing an accounting of what he bought and sold and where his

profits went. Due to the amount of money taken, all of which was gone, and

Magness’s unwillingness to provide an accounting, it was reasonable for the court

to doubt Magness’s assertion that all of the profits from his crimes went to

household expenses and bills. The court, properly relying on its prior experience,

also determined that it was unlikely that Magness would pay full restitution to his

victims, and that Magness would likely be rewarded with a tax-free windfall from


                                         6
              Case: 17-14323     Date Filed: 04/16/2018   Page: 7 of 8


his crimes.   See Shaw, 560 F.3d at 1238.          The court’s determination was

reasonable, since the PSI reported that Magness currently has no assets. And

although Magness’s victim was able to recover a portion of its losses through its

insurer, it still had over $100,000 in losses from Magness’s crimes.

      The record also reflects that the 48-month total sentence was well below the

statutory maximum of 20 years’ on each offense, another indicator of

reasonableness. As for Magness’s claim that United States v. Valnor, 451 F.3d

744 (11th Cir. 2006), is distinguishable, we’ve applied its holding -- that the

disparity between the sentence imposed and the statutory maximum sentence is an

indicator of reasonableness -- in a wide range of cases, not just national security

ones. See, e.g., Gonzalez, 550 F.3d at 1324. For these reasons, the district court

did not abuse its discretion in imposing Magness’s above-guideline sentence

because it provided sufficiently compelling reasons to support it.

      We are also unpersuaded by Magness’s claim that the district court violated

Fed. R. Crim. P. 32(h) by considering Magness’s criminal history as a basis for

departure without giving the parties prior notice. Fed. R. Crim. P. 32(h) provides:

      Before the court may depart from the applicable sentencing range on a
      ground not identified for departure either in the presentence report or
      in a party’s prehearing submission, the court must give the parties
      reasonable notice that it is contemplating such a departure.

Id. Rule 32(h)’s notice requirement does not apply to variances from the guideline

range. United States v. Irizarry, 553 U.S. 708, 714 (2008). The term “departure”

                                          7
               Case: 17-14323     Date Filed: 04/16/2018    Page: 8 of 8


in Rule 32(h) is a term of art referring to non-guidelines sentences under the

framework set out in the guidelines. Id.

      Here, we need not address this issue as it was raised for the first time in

Magness’s reply brief. But even if we were to consider it under plain error review,

the district court did not err, much less plainly err, because it did not violate Fed.

R. Crim. P. 32(h). It is true that the court considered Magness’s criminal history as

a relevant factor under § 3553(a). However, because the court imposed its above-

guidelines sentence as an upward variance pursuant to § 3553(a), Rule 32(h) --

which applies only to departures -- was inapplicable. Irizarry, 553 U.S. at 714. As

a result, the district court was not required to provide any notice to the parties prior

to considering Magness’s criminal history as a relevant factor for a variance. Id.

      AFFIRMED.




                                           8
