           Case: 11-13327    Date Filed: 09/14/2012   Page: 1 of 5

                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-13327
                         Non-Argument Calendar
                       ________________________

               D. C. Docket No. 2:11-cr-00080-JHH-HGD-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DESMOND CHAD PRUITT,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 14, 2012)

Before HULL, EDMONDSON and BLACK, Circuit Judges.


PER CURIAM:

          Desmond Chad Pruitt, who pleaded guilty to being a felon in
              Case: 11-13327      Date Filed: 09/14/2012   Page: 2 of 5

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), appeals his 72-

month sentence. No reversible error has been shown; we affirm.

      We review a final sentence for procedural and substantive reasonableness .

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence

might be procedurally unreasonable if the district court fails to explain adequately

the chosen sentence. Id. We evaluate the substantive reasonableness of a sentence

under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The party challenging the

reasonableness of the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both the record and the 18 U.S.C. § 3553(a) factors.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      “Sentences outside the guidelines are not presumed to be unreasonable, but

we may take the extent of any variance into our calculus.” United States v. Shaw,

560 F.3d 1230, 1237 (11th Cir. 2009) (citation omitted). When the district court

decides after “serious consideration” that a variance is in order, the court is

required to explain adequately why that variance is appropriate in a particular case

with sufficient justifications. Id. (quotation omitted).

      Because 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

                                           2
              Case: 11-13327     Date Filed: 09/14/2012    Page: 3 of 5

      that is appropriate. We must give its decision due deference. We 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. However, that we might reasonably have
      concluded that a different sentence was appropriate is insufficient to
      justify reversal.

Id. at 1238 (citations and quotations omitted).

      We conclude that Pruitt’s sentence is reasonable. Although his 72-month

sentence varied upward from the top of the advisory guidelines range by 26

months, the sentence was well below the 10-year statutory maximum he faced.

See 18 U.S.C. § 924(a)(2); United States v. Valnor, 451 F.3d 744, 751-52 (11th

Cir. 2006) (affirming an upward variance and observing that the ultimate sentence

was appreciably below the statutory maximum).

      Pruitt argues that the district court gave undue weight to testimony

presented at the sentencing hearing about his threats to law enforcement and paid

little to no attention to the offense of conviction. But “[t]he weight to 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.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation

and citation omitted). In addition, the district court explained its decision to apply



                                          3
              Case: 11-13327     Date Filed: 09/14/2012   Page: 4 of 5

an upward variance, citing its reliance on several of the § 3553(a) factors,

including the history and characteristics of the defendant, the nature and

circumstances of the offense, the nature and extent of Pruitt’s criminal history, and

the need to protect the public from further crimes because Pruitt posed a

significant danger to society.

      Pruitt’s argument that the court failed to consider his arguments in

mitigation -- that he had just been shot when he made threats to police and that he

was compliant and non-combative once in custody -- also lacks merit. The district

court specifically stated that it had considered the nature and circumstances of the

particular offense. See 18 U.S.C. § 3553(a)(1). And contrary to Pruitt’s assertion,

the district court was permitted to consider Pruitt’s extensive prior criminal history

at sentencing, even though his previous offenses were included in his criminal

history and were therefore part of the calculation of his guideline range. See

United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (concluding that

the district court may consider factors that already have been addressed by the

Guidelines when determining a reasonable sentence, including information on the

background, character, and conduct of the defendant).

      Based on the evidence in the record, we conclude that Pruitt’s sentence was

reasonable and that the district court adequately justified its upwardly variant

                                          4
              Case: 11-13327     Date Filed: 09/14/2012    Page: 5 of 5

sentence. Although Pruitt disagrees with the district court’s assessment of several

of the § 3553(a) factors, we -- on this record -- cannot say that the court’s careful

consideration of the factors and its conclusion were unreasonable.

      AFFIRMED.




                                           5
