                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 JUNE 27, 2008
                                 No. 07-15625
                                                               THOMAS K. KAHN
                             Non-Argument Calendar
                                                                   CLERK
                           ________________________

                      D. C. Docket No. 07-80086-CR-DTKH

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

JACKSON MONESCAR,

                                                          Defendant-Appellant.

                           ________________________

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

                                 (June 27, 2008)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

      Jackson Monescar appeals his 72-month sentence, imposed following his

conviction for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g).
After a thorough review of the record, we affirm.

      The presentence investigation report detailed Monescar’s criminal history as

follows: With respect to those prior offenses for which criminal history points were

assigned, the probation officer included a burglary charge and trespass at age 15

and grand theft at ages 16 and 17. At age 19, Monescar was arrested for

possession of marijuana and driving with a suspended license. He was sentenced

to time served. At age 21, he again was arrested for drugs and received a fine.

      The probation officer listed numerous juvenile convictions for theft, battery,

grand theft, grand theft auto, and burglary for which no criminal history points

were assigned. The probation officer also noted numerous other charges for theft,

battery, burglary, robbery and possession of a firearm, none of which were

prosecuted. Monescar’s criminal history category was VI, with an adjusted offense

level of 18 and a guidelines range of 57 to 71 months’ imprisonment. (Sentencing

Guidelines Table A). The probation officer recommended a possible upward

departure in the criminal history under U.S.S.G. § 4A1.3 because the category

understated the seriousness of Monescar’s criminal record. Monescar objected to,

inter alia, an upward departure in criminal history because most of his previous

arrests were as a juvenile.1



      1
          Monescar’s other objections and the court’s rulings are not relevant to the instant appeal.

                                                 2
      At sentencing, the court determined the guidelines range to be 46 to 57

months’ imprisonment based on an adjusted offense level of 16. The government

moved for an upward departure in the criminal history and the parties agreed that

the court could consider the upward departure under § 4A1.3 in conjunction with a

variance under 18 U.S.C. § 3553(a). The court noted that, because Monescar’s

criminal history category was a VI, the court could depart vertically in the adjusted

offense level to reach an appropriate sentence. The government requested a

sentence of 108 months’ imprisonment to keep Monescar incarcerated until he

reached age 30. After hearing argument from both sides, the court considered the

§ 3553(a) factors and its authority to depart vertically where, as here, there was a

pattern of criminal conduct. The court stated that it would depart upward 3 levels

to an adjusted offense level of 19, resulting in a sentencing range of 63 to 78

months’ imprisonment. The court explained that the criminal history category

under-represented Monescar’s criminal record, and the § 3553(a) factors made this

the appropriate sentencing range. The court then discussed the sentencing factors:

there was overwhelming evidence of guilt at trial and Monescar had committed a

serious crime, Monescar had a lengthy criminal history that was escalating and

now involved gang activity, there was a great need to protect the public and

promote respect for the law, and there was a need to punish the behavior.



                                           3
Accordingly, the court imposed a sentence of 72 months’ imprisonment. The court

further stated that, even if it had applied § 4A1.3 incorrectly, it would have

imposed the same sentence as a variance under § 3553(a). Monescar now appeals,

asserting that it is unclear whether the court imposed an upward departure under

§ 4A1.3 or a variance under § 3553(a), challenging the departure under § 4A1.3 on

various grounds, and asserting that there were no extraordinary circumstances to

justify the sentence imposed.

      We review a district court’s factual findings for clear error and its

application of the guidelines to those facts de novo. United States v. Kinard, 472

F.3d 1294, 1297 n.3 (11th Cir. 2006). We review the ultimate sentence imposed

for reasonableness. United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005).

The Supreme Court recently clarified that courts of appeal are to review sentences

for abuse of discretion. Gall v. United States, --- U.S. ----, 128 S.Ct. 586, 597

(2007). Under this review, we must first 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-including an explanation

for any deviation from the Guidelines range. Id. An improperly calculated



                                           4
guideline range is considered a procedural error. Id. However, where the district

court states that it would impose the same sentence irrespective of any sentencing

calculation errors or enhancements, we may review the reasonableness of the

sentence while assuming that the court erred in its guideline calculation. United

States v. Keene, 470 F.3d 1347, 1349-50 (11th Cir. 2006). See also United States

v. Dean, 517 F.3d 1224, 1232 (11th Cir. 2008). “[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a).” Talley, 431 F.3d at

788.

       Section 4A1.3 of the Sentencing Guidelines permits a district court to make

an upward departure in imposing a sentence on a defendant “[i]f reliable

information indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).

Vertical departures, such as the one imposed here because Monescar’s criminal

history category was VI, are expressly permitted under the Guidelines. U.S.S.G.

§ 4A1.3(a)(4), (comment. n.2(B)).

       We need not address Monescar’s arguments regarding the upward departure

because the district court stated that it would impose the same sentence even if it



                                          5
erred in its guidelines calculations. See Dean, 517 at 1232. The only issue is

whether the sentence imposed was reasonable.

       Upon review, we conclude that the sentence imposed was substantively

reasonable. The court stated that it had considered the § 3553(a) factors,2 and it

gave a detailed explanation as to how it weighed those factors. The court noted

that Monescar had committed a serious crime and had a lengthy criminal history

that had escalated to include gang activity. The court also considered the need to

protect the public, promote respect for the law, and punish the behavior. And the

sentence imposed was below the statutory maximum of ten years. See 18 U.S.C.

§ 924(a)(2). Accordingly, because Monescar has not shown his sentence is

unreasonable, we AFFIRM.




       2
         The § 3553(a) factors include:
       (1) the nature and circumstances of the offense and the history and characteristics of
       the defendant; (2) the need ... 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]
       deterrence; [4 the need] to protect the public; [5 the need] to provide the defendant
       with needed educational or vocational training [or] medical care; [6] the kinds of
       sentences available; [7] the [Sentencing Guidelines] range; [8 pertinent policy
       statement[s of] the Sentencing Commission; [9] the need to avoid unwanted
       sentenc[ing] disparities; and [10] the need to provide restitution to ... victims.

18 U.S.C. § 3553(a).

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