           Case: 12-15463   Date Filed: 08/14/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15463
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cr-20483-RNS-7



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MANUEL VALDES,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (August 14, 2013)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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        On July 19, 2011, Manuel Valdes and others were indicted for conspiracy to

commit bank fraud,1 Count 1; four counts of bank fraud, 2 Counts 6-7, 10 and 13;

and five counts of wire fraud,3 Counts 29-30 and 33-35. On December 30, 2011,

Valdes, pursuant to a plea agreement, pled guilty to Count 1 of the indictment.

        Valdes’s commission of the Count 1 offense violated the conditions of a

probation sentence he was serving as the result of state court convictions on four

counts of second-degree grand theft and one count of organized fraud. 4 One of the

terms of the probation sentence required Valdes to pay restitution in the sum of

$109,155. When he appeared before the District Court for sentencing on Count 1,

on October 12, 2012, he still owed restitution payments in the sum of $85,658.

        At sentencing, after considering the presentence report and the Valdes’s

objections to the report, the District Court fixed Valdes’s adjusted offense level at

20 and his criminal history category at II; this yielded a Guidelines sentence range

of 37 to 46 months’ confinement. Both sides recommended the imposition of a

prison term of 37 months. The court rejected their recommendation and, varying

upward from the sentence range, sentenced Valdes to a term of 60 months. The

court concluded that an upward variance was necessary because of his prior fraud

conviction and because he had paid very little toward the restitution sum of

1
    18 U.S.C. § 1349.
2
    18 U.S.C. § 1344(1)-(2).
3
    18 U.S.C. § 1343.
4
    The criminal activity underpinning those offenses occurred over a 10-year period.
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$109,155 at the time he committed the Count 1 offense. Valdes now appeals his

sentence.

      Valdes argues that his sentence is procedurally unreasonable because the

District Court committed a clear factual error regarding his restitution-payment

history and because it did not explain how that history affected his sentence. He

also argues that his sentence is substantively unreasonable because (1) he was

involved in the Count 1 conspiracy for a shorter period of time than his

codefendants and was involved in only a small number of the fraudulent

transactions listed in the indictment, (2) his sentence constitutes an unwarranted

disparity from those received by his codefendants, and (3) his probation status at

the time of his arrest did not justify the upward variance because the Guidelines

sentence range reflected the state court convictions.

      We review the reasonableness of a sentence using the deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). We first determine whether the “district court

committed . . . significant procedural error.” Gall, 552 U.S. at 51, 128 S.Ct. at 597.

Such error may occur if the court improperly calculated the Guidelines sentence

range, failed to treat the Guidelines as advisory, failed to consider the 18 U.S.C.

§ 3553(a) sentencing factors, based the sentence on clearly erroneous facts, or

failed adequately to explain the sentence imposed. Id. We have never required a


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sentencing judge to “articulate his findings and reasoning with great detail or in

any detail for that matter.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.

2010) (en banc). Nevertheless, as a general matter, he is required to explain in

greater detail his decision to grant a variance above or below the Guidelines

sentence range. United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir. 2008)

(rejecting a sentence because the district court “gave no reasoning or indication of

what facts justified such a significant variance from the advisory Guidelines

range”).

      A “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.” Rita v. United States, 551

U.S. 338, 345, 356, 358, 127 S. Ct. 2456, 2462, 2468–69, 168 L. Ed. 2d 203 (2007)

(holding that the district court’s reasoning was sufficient when the court simply

stated that the guideline range was not inappropriate and that the public needed to

be protected before imposing a guideline-range sentence). In Rita, the Supreme

Court reasoned that, although the district court had provided a limited explanation

of its sentence, the record showed that the court had listened to the evidence and

arguments and was aware of the various factors that would justify a lower

sentence. Id. at 358, 127 S. Ct. at 2469.




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      On finding the district court’s sentencing decision procedurally reasonable,

we turn to the decision’s substantive reasonableness. Gall, 552 U.S. at 51, 128 S.

Ct. at 597. We review the totality of the facts and circumstances to gauge for

substantive error. Irey, 612 F.3d at 1189–90. The relevant inquiry is “whether the

sentence imposed by the district court fails to achieve the purposes of sentencing as

stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005). The court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” set out in 18 U.S.C. § 3553(a)(2), which

include the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(2). The court must also consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

      The court is not required “to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, its

acknowledgment that it has considered them is sufficient. Talley, 431 F.3d at 786.


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Additionally, the weight given to each factor is “a matter committed to the sound

discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007) (citation omitted). The court can consider factors even if they were

considered during the calculation of the defendant’s Guidelines sentence range.

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

the district court properly considered the defendant’s prior fraud-related crimes in

the § 3553(a) factors, specifically, the history and characteristics of the offender).

We may vacate a sentence 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.” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008) (quotation omitted).

      The sentence in this case is both procedurally and substantively reasonable

because the District Court (1) sufficiently explained its reliance on Valdes’s

restitution-payment history, and (2) acted within its discretion in weighing the

§ 3553(a) factors as it did. The judgment of the District Court is accordingly

      AFFIRMED.




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