                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            Aug. 18, 2009
                             No. 08-17029                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                     D. C. Docket No. 08-00022-CR-6

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

EDWIN WILSON,
a.k.a. Amos,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 18, 2009)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-appellant Edwin “Amos” Wilson was charged by second
superseding indictment along with Carlos Lundy with five drug-related offenses.

After waiving his right to an indictment, and in exchange for dismissal of the

indictment, Wilson pleaded guilty to an information charging him with a single

count of cocaine distribution, in violation of 21 U.S.C. § 841(a).1

       The probation officer prepared a presentence investigation report (“PSI”),

indicating that in April and May 2007, Wilson sold Lundy nine ounces of cocaine,

twice a week, for six weeks, for a total of about three kilograms. In June 2007,

agents obtained information from wiretaps that lead them to a separate transaction

involving eighteen ounces to be delivered to Roderick Burney; the deal never

occurred. Based on these transactions, Wilson was responsible for 3.51 kilograms

of cocaine, which resulted in a base offense level of 30. With a 3-level reduction

for acceptance of responsibility and no other enhancements or reductions, the total

adjusted offense level was 27. Wilson’s criminal history included four other drug-

related offenses that occurred between the ages of 28 and 41, a shooting into an

occupied building, and mail fraud in connection with an insurance claim, resulting

in a criminal history category III and yielding a guidelines range of 87 to 108

months’ imprisonment. The statutory maximum term of imprisonment was 20



       1
         The plea agreement contained a waiver-of-appeal provision. The provision, however,
permitted an appeal should the court impose an upward variance and thus does not bar Wilson’s
argument.

                                             2
years. 21 U.S.C. § 841(b)(1)(C).

      Wilson objected to the amount of drugs for which he was held responsible.

The probation officer explained that Lundy’s grand jury testimony and the other

evidence from wiretaps and surveillance supported a finding that Wilson was

involved with more than three kilograms of drugs as part of his relevant conduct.

      At sentencing, the court found that Wilson was involved with 3.51

kilograms of cocaine based on Lundy’s testimony and the other evidence. In his

statement to the court, Wilson explained that Lundy was the dealer and that he only

delivered about 1.7 grams to Lundy. After considering Wilson’s arguments and

the sentencing factors in 18 U.S.C. § 3553(a), the court imposed a sentence of 126

months’ imprisonment, which constituted an upward variance from the guidelines

range. The court explained that Wilson had seven prior convictions, four of which

involved drug possession; he had been placed on probation before, but each time it

ended in revocation and he required greater deterrent; Wilson was a repeat offender

with no respect for the law; and Wilson was not credible, as his version of events

was contradicted by the other evidence. This appeal followed.

      Wilson argues that the sentence imposed was substantively unreasonable

because the basis for the variance was taken into account in the determination of

his criminal history and the court failed to adequately explains its reasoning. He



                                          3
contends that the court should not have considered some of his prior convictions,

which were too remote.2

       Appellate review of the substantive reasonableness of a sentence-whether

inside or outside the guidelines range-is under an abuse-of-discretion standard.

Gall v. United States, 128 S.Ct. 586, 597 (2007). This review is deferential and the

appellant bears the burden of establishing the absence of reasonableness in light of

the record and the § 3553(a) factors. See United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008) (citing United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005)). Review for reasonableness has two steps. First, we must

“ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall v. United States, 128 S.Ct. 586, 597 (2007). Second, we

must determine whether the sentence imposed is substantively reasonable based on

the factors in § 3553(a), which include: the nature and circumstances of the

       2
           Wilson did not raise this argument before the district court and thus has forfeited it,
subjecting it to plain error review. Fed. R. Crim. P. 52. Wilson cannot show plain error in the
court’s calculations because the prior convictions that occurred more than ten years earlier did not
receive criminal history points, and nothing precluded the court from considering them in imposing
the variance. See United States v. Peagler, 847 F.2d 756, 758 (11th Cir. 1988) (explaining that
convictions that would not receive criminal history points could be used to determine a defendant’s
character).

                                                 4
offense; the history and characteristics of the defendant; the need for the sentence

to reflect the seriousness of the offense, provide just punishment, and promote

respect for the law; the need to deter criminal conduct; the need to protect the

public from other crimes of the defendant; and the advisory Guidelines range. 18

U.S.C. § 3553(a); Gall, 128 S.Ct. at 597. “The weight to be accorded any given

§ 3553(a) 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) (quotation omitted).

      When the district court decides after “serious consideration” that a variance

is in order, it should explain why that variance “is appropriate in a particular case

with sufficient justifications.” Gall, 128 S.Ct. at 594. The justifications must be

“compelling” enough “to support the degree of the variance” and complete enough

to allow meaningful review. Id. at 597. “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). We will

vacate a sentence only “if [] 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) (internal quotation marks omitted). That we “might reasonably have



                                           5
concluded that a different sentence was appropriate is insufficient to justify

reversal.” Gall, 128 S.Ct. at 597.

      Upon review, we conclude Wilson’s sentence is reasonable and the court

adequately explained its reasoning for imposing a variance. First, the court

explained it detail that it was imposing the upward variance due to the need to

punish and deter in light of Wilson’s prior convictions and sentences. The court

also considered Wilson’s characteristics, explaining that it did not believe Wilson’s

denial of his involvement in other drug deals because the evidence contradicted his

statements and his employment records did not support his finances. Finally, the

126-month sentence imposed was not significantly greater than the high end of the

guidelines range (108 months), and was much less than the statutory maximum of

20 years’ imprisonment.

      Accordingly, the court did not abuse its discretion by imposing an upward

variance, and Wilson has not met his burden to show the sentence imposed was

unreasonable.

      AFFIRMED.




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