              Case: 13-11694     Date Filed: 12/18/2013   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-11694
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:12-cr-00021-BAE-GRS-4


UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                       versus

CHARLES PRETLOW,

                                                          Defendant-Appellant.

                          _________________________

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

                               (December 18, 2013)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Charles Pretlow appeals his 12-month sentence for concealing an escaped

prisoner. After reviewing the record and the parties’ briefs, we affirm.
              Case: 13-11694     Date Filed: 12/18/2013   Page: 2 of 5




                                              I

      Cecil Nelson, Mr. Pretlow’s cousin, escaped from a Swainsboro, Georgia

prison while awaiting sentencing following a high-profile conviction for

conspiracy to kidnap. According to Mr. Pretlow’s account of events, he agreed to

assist Mr. Nelson after Mr. Nelson explained that he had been released on bond

and sought to leave Georgia for his own safety. En route to Pennsylvania, Mr.

Nelson confessed to Mr. Pretlow that he had in fact escaped.             Mr. Pretlow

persuaded Mr. Nelson to surrender to authorities, and the FBI prearranged for Mr.

Nelson to surrender at a designated location. Instead of leaving Mr. Nelson there,

however, Mr. Pretlow acceded to Mr. Nelson’s instructions and instead dropped

him off at his mother’s residence, where he later submitted to authorities.

      Mr. Pretlow pled guilty to concealing an escaped prisoner in violation of 18

U.S.C. § 1072. Mr. Pretlow’s pre-sentence investigation report, as adopted by the

district court, listed an advisory guidelines range of four to ten months’

imprisonment.    Before sentencing, the government moved for a reduction in

sentence, citing Mr. Pretlow’s cooperation and admission of responsibility. At

sentencing, the district court expressed skepticism about Mr. Pretlow’s initial

ignorance of Mr. Nelson’s escape, particularly in light of the extensive media

coverage surrounding the event, and sentenced him to twelve months’


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imprisonment to be followed by twelve months’ supervised release, an upward

variance of two months from the top end of the advisory guideline range.

      On appeal, Mr. Pretlow argues that his sentence is substantively

unreasonable because the district court erroneously factored in Mr. Nelson’s

underlying crime in imposing an upward variance on Mr. Pretlow’s sentence.

                                             II

      We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). This standard

applies “[r]egardless of whether the sentence imposed is inside or outside the

Guidelines range.” Id. Even if the district court's sentence is more severe or more

lenient than the sentence we would have imposed, we will only reverse if we are

“left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the [18 U.S.C.] § 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

                                             III

      Mr. Pretlow contends that the district court abused its discretion when it

imposed an upward variance on the basis of Mr. Nelson’s underlying crime.

Subject to several listed enhancements that do not apply to Mr. Pretlow, § 2X3.1,


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the advisory guideline applicable to violations of 18 U.S.C. § 1072 provides for a

base offense level of “6 levels lower than the offense level for the underlying

offense[.]” U.S.S.G. § 2X3.1 (a)(1). Mr. Pretlow appears to read § 2X3.1 as

setting forth the only bases on which a district court may impose an enhancement

to a sentence for a violation of 18 U.S.C. § 1072. Mr. Pretlow, however, cites no

authority in support of this proposition, nor have we located any.

      To the extent the district court factored in Mr. Nelson’s underlying crime in

imposing an upward variance, it did not abuse its discretion in doing so. Mr.

Pretlow’s argument does not account for the non-binding nature of the advisory

guidelines following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005). See United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006)

(“If Booker is to mean anything, it must be that district courts are obligated to

impose a reasonable sentence, regardless of the Guidelines range, so long as the

Guidelines have been considered.”). The record indicates that the district court

considered the advisory guidelines but that other factors dictated an upward

variance to reach an appropriate sentence.       In addition to citing the factors

identified in 18 U.S.C. § 3553(a), the district court underscored the apprehension

that Mr. Nelson’s escape—which Mr. Pretlow prolonged—engendered in the

community, Mr. Pretlow’s decision to assist Mr. Nelson in disregarding his

scheduled rendezvous with the FBI, and Mr. Pretlow’s extensive criminal history


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which, in the district court’s view, his pre-sentence investigation report did not

adequately reflect. The district court, in short, considered the advisory guidelines

but determined that the unique factual circumstances of the case warranted an

upward variance. Because we find that “the justification for the variance [is]

sufficiently compelling to support the degree of the variance,” Irey, 612 F.3d at

1187 (internal quotation marks omitted), we find that the imposed upward variance

was reasonable.

                                        IV

      Mr. Pretlow’s 12-month sentence is affirmed.

      AFFIRMED.




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