                    Case: 12-11307          Date Filed: 11/29/2012   Page: 1 of 5

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11307
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 4:11-cr-00205-BAE-GRS-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus

MICHAEL PRINGLE,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.



                                     ________________________

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

                                           (November 29, 2012)

Before CARNES, WILSON and BLACK, Circuit Judges.


PER CURIAM:
               Case: 12-11307     Date Filed: 11/29/2012     Page: 2 of 5

      Michael Pringle appeals his above-guidelines sentence of 30 months after

pleading guilty, pursuant to a plea agreement, to the charge of conspiring to

commit financial aid fraud. Pringle argues (1) the district court erred by adopting

the probation officer’s erroneous determination of his criminal history score,

(2) the district court failed to follow the proper procedure for imposing an upward

sentencing departure, and (3) his above-guidelines sentence was substantively

unreasonable. After review, we affirm Pringle’s sentence.

                                           I.

      Pringle first contends his sentence was procedurally unreasonable because

the PSI stated he had 15, rather than 13, criminal history points.     Because Pringle

failed to raise this argument before the district court, we review for plain error.

Under this standard, we can make corrections only if (1) there is an error, (2) that

is plain, and (3) that affects substantial rights. United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). A defendant fails to meet his burden on the

third factor when “the effect of an error on the result in the district court is

uncertain or indeterminate.” Rodriguez, 398 F.3d at 1301.

      In determining Pringle’s sentence, the district court never mentioned

Pringle’s criminal history points or indicated that it was basing sentencing on that

number. Rather, the district court recounted the lengthy history of Pringle’s

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criminal convictions. Moreover, although Pringle had only 13 criminal history

points, Pringle still would have earned the same criminal history category (VI)

based on that number. See U.S.S.G. Ch. 5, Pt. A. Because it is at most uncertain

as to whether the misstatement of the criminal history points affected the district

court’s sentencing decision, Pringle cannot show the error affected his substantial

rights. Rodriguez, 398 F.3d at 1301.

                                         II.

      Pringle next contends his sentence was procedurally unreasonable because

the district court failed to follow the proper procedure for an upward departure

from his guidelines range of 12 to 18 months. Because Pringle failed to raise this

argument before the district court, we again review for plain error. Rodriguez, 398

F.3d at 1298.

      When uncertainty exists as to whether the district court applied a departure

or variance, we consider: (1) whether the district court referenced a particular

guidelines departure provision, and (2) whether the court based its decision on a

belief that the guidelines were not adequate. See United States v. Kapordelis, 569

F.3d 1291, 1316 (11th Cir. 2009). In Kapordelis, we held that even though the

district court stated it was granting a “motion for an upward departure,” where the

court did not cite a specific guideline departure and its rationale was based on the

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§ 3553(a) factors and a finding that the guidelines were inadequate, it actually

granted a variance. Kapordelis, 569 F.3d at 1316.

      Contrary to Pringle’s contentions, the district court did not impose an

upward departure, but instead imposed an upward variance based on the § 3553(a)

factors. Id. In imposing Pringle’s sentence, the district court correctly calculated

Pringle’s advisory guideline range, found it did not sufficiently address the §

3553(a) sentencing factors, and imposed a sentence outside the advisory

guidelines range without citing a specific guideline provision. These factors

indicate the district court imposed a variance, not a departure. Thus, the court did

not plainly err in failing to follow the proper procedure for imposing an upward

sentencing departure.

                                          III.

      Pringle’s final argument is that his 30 month sentence was substantively

unreasonable. If the district court applies a variance, the reasonableness of the

variance is assessed in light of the § 3553(a) factors and the totality of the

circumstances, with due deference given to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance. Gall v. United

States, 128 S. Ct. 586, 597 (2007). The party challenging the sentence bears the




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burden of establishing unreasonableness. United States v. Tome, 611 F.3d 1371,

1378 (11th Cir. 2010).

       Pringle has not established his above-guidelines sentence was substantively

unreasonable. The sentence was based expressly on the § 3553(a) factors. The

sentence was also well below the statutory maximum of 60 months. See United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Moreover, the court

gave sufficient reasons to support the extent of the variance, including its

observations that Pringle had a history of failing to comply with probation, and

that Pringle had been undeterred from criminal conduct by his previous sentences.

The district court did not abuse its discretion in imposing a 30-month sentence.

      AFFIRMED.




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