                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                 No. 10-15888                  AUG 25, 2011
                                                                JOHN LEY
                             Non-Argument Calendar                CLERK
                           ________________________

                   D.C. Docket No. 2:05-cr-00061-RBP-TMP-8

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ROLAND PUGH CONSTRUCTION, INC.,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (August 25, 2011)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

      Roland Pugh Construction, Inc., (“PUGH”) appeals a $19.4 million fine

levied as punishment for convictions for bribery, in violation of 18 U.S.C.
§ 666(a)(2), mail fraud, in violation of 18 U.S.C. § 1341, and conspiracy to bribe

county officials in Jefferson County, Alabama, in violation of 18 U.S.C. § 371.

After review, we affirm.

                            I. BACKGROUND FACTS

      At PUGH’s original sentencing, the district court calculated a guidelines

fine range of $61,580,216.99 to $87,971,738.56 and imposed a total fine of $19.4

million. On appeal, this Court, inter alia, affirmed the district court’s findings of

fact pertaining to PUGH’s sentence and concluded that there was no error in the

district court’s calculations under the sentencing guidelines. United States v.

McNair, 605 F.3d 1152, 1237-38 (11th Cir. 2010), cert. denied, 131 S. Ct. 1600

(2011). However, in light of the reversal of PUGH’s conviction on Count 75 (on

statute of limitations grounds), the Court vacated PUGH’s sentence and remanded

for resentencing without Count 75. Id. In a footnote, the Court noted that the

reversal on Count 75 did not “appear to impact [PUGH’s] overall sentence.” Id.

at 1238 n.143. The Court remanded “in an abundance of caution” because, at a

minimum, Count 75 had to be removed. Id.

      At resentencing, the district court reimposed the $19.4 million fine against

PUGH, and directed the clerk to issue a refund check of $400 for the special

assessment on the Count 75 conviction.

                                           2
                                      II. DISCUSSION

       On appeal, PUGH argues that the $19.4 million fine is (1) procedurally

unreasonable because the district court failed to consider the pertinent sentencing

factors in 18 U.S.C. § 3572, and (2) substantively unreasonable because it creates

an unwarranted sentencing disparity with several of PUGH’s codefendants who

received substantially lower fines.

       We review the reasonableness of a sentence under a “deferential

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

586, 591 (2007). Our reasonableness review includes the district court’s decision

to impose a fine. See United States v. Bradley, __ F.3d __, No.06-14934, 2011

WL 2565480 at *67 (11th Cir. June 29, 2011).

       In reviewing for reasonableness, we look first at whether the district court

committed any significant procedural error, such as relying upon clearly erroneous

facts, miscalculating the advisory guidelines range, treating the guidelines as

mandatory or failing to consider the 18 U.S.C. § 3553(a) factors. Id.1 Although

       1
         The § 3553(a) sentencing 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 statements of the Sentencing
Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims. 18 U.S.C. § 3553(a).

                                                 3
the district court must consider the sentencing factors, it is not required to state or

discuss each factor on the record. Id. Rather, it is sufficient if “the record

demonstrates that the pertinent factors were taken into account by the district

court.” United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009).

       We next look at whether the sentence is substantively unreasonable in light

of the totality of the circumstances, giving deference to the sentencing court.

Bradley, 2011 WL 2565480 at *67. The party challenging the sentence bears the

burden to show it is unreasonable in light of the record and the sentencing factors.

United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). Although we do

not apply a presumption, we ordinarily expect a sentence within the guidelines

range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

A sentence imposed well below the statutory maximum is another indicator of a




        In deciding whether to impose a fine, in addition to the § 3553(a) factors, the district
court also considers the factors in § 18 U.S.C. § 3572(a), which include: (1) “the defendant’s
income, earning capacity, and financial resources”; (2) the burden on the defendant and others
financially dependent upon the defendant “relative to the burden that alternative punishments
would impose”; (3) “any pecuniary loss inflicted upon others as a result of the offense”; (4) the
amount of any restitution; (5) “the need to deprive the defendant of illegally obtained gains from
the offense”; (6) the government’s expected costs of any imprisonment, supervised release or
probation; (7) “whether the defendant can pass on to consumers or other persons the expense of
the fine”; and (8) “if the defendant is an organization, the size of the organization and any
measure taken by the organization to discipline any officer, director, employee, or agent of the
organization responsible for the offense and to prevent a recurrence of such an offense.” 18
U.S.C. § 3572(a)(1)-(8).

                                                 4
reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008).

       Here, PUGH does not raise any procedural irregularities except to argue that

the district court “said nothing . . . to indicate its due consideration of any of the”

§ 3572(a) factors and gave “short shrift” to § 3572(a)(2), which requires

consideration of the burden the fine will impose on the defendant.2 It is readily

apparent from the record that the district court explicitly and thoroughly

considered the burden on PUGH.3 Specifically, the district court considered: (1)

PUGH’s latest bankruptcy filing indicating that its only asset was a cash escrow

account worth $19,580,216.55; (2) heard testimony from Andy Pugh (an officer of

PUGH who was not indicted) about the current status of PUGH’s business;4 and


       2
         To the extent PUGH argues that the district court should have considered U.S.S.G.
§ 8C3.3(b), the district court properly declined to revisit its findings and calculations under the
guidelines. This Court already affirmed the district court’s application of the guidelines in
PUGH’s first appeal, making them law of the case. See United States v. Tamayo, 80 F.3d 1514,
1520 (11th Cir. 1996) (explaining that an appellate decision binds the sentencing court on
remand as to both explicit rulings and issues necessarily decided by implication); United States v.
Fiallo-Jacome, 874 F.2d 1479, 1481-82 (11th Cir. 1989) (explaining that appellants on their
second appeal should not get “two bites at the appellate apple”).
       3
         The financial burden on PUGH was one of only two § 3572(a) factors PUGH’s
mitigation arguments implicated. PUGH’s other argument was that it had paid restitution to the
county, which relates to § 3572(a)(4). See 18 U.S.C. § 3572(a)(4) (listing restitution made as a
factor to consider in determining whether and to what extent to impose a fine).
       4
        Pugh testified, inter alia, that he was involved in PUGH’s bankruptcy and helped close
the company down. At the time of resentencing, PUGH had finished all outstanding jobs,
auctioned off its office building and property and was not currently doing any work.

                                                5
(3) fully considered PUGH’s argument that, if the fine remained the same, the

company would go out of business.

      In deciding to reimpose the same $19.4 million fine, the district court found

that there were sufficient assets to allow the company to continue to conduct

business, but that other factors, principally the debarment order prohibiting PUGH

from working on federal projects and the economic downturn, prevented the

company’s viability. Given that the record shows the district court considered the

§ 3572(a)(2) factor, PUGH has not carried its burden to show the fine is

procedurally unreasonable.

      We also conclude that the $19.4 million fine is substantively reasonable.

Although codefendants Roland Pugh and Rast Construction received lower fines,

these fines were based on different guidelines calculations and a stipulated fine

amount, respectively. Additionally, as the government notes, PUGH was

convicted of more offenses and, as the district court found, made approximately

$43 million in profit from the scheme. Thus, PUGH has not shown the district

court failed to avoid an unwarranted sentencing disparity. See 18 U.S.C.

§ 3553(a)(6) (requiring sentencing court to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct”); McNair, 605 F.3d at 1232 (stating that a

                                         6
district court may impose a higher sentence on a defendant if he is not “similarly

situated” to his codefendants).

       Here, despite an advisory guidelines fine range of $61,580,216.99 to

$87,971,738.56, the district court fined PUGH only $19.4 million, less than one

third of the minimum fine suggested by the guidelines and less than a quarter of

the statutory maximum fine of approximately $87 million. In refusing PUGH’s

requested $5 million reduction in the fine to remain in business, the district court

expressed doubt that additional assets would be used to keep PUGH viable rather

than to pay “debts on the books owed to prior officers who were either directly

culpable based upon the Corporation’s involvement in this crime or even if not

directly culpable, were certainly aware; or even if they weren’t aware of the

circumstances, it happened on their watch.”5

       We cannot say the district court abused its discretion by reimposing the

$19.4 million fine.

       AFFIRMED.


       5
         On cross-examination, Andy Pugh conceded that the exhibit to PUGH’s most recent
bankruptcy filing was a balance sheet showing that the company had a liability of $310,000 for
“officers’ bonuses,” and that the officers included himself and Grady Pugh, Roland Pugh and
Eddie Yessick, each of whom was convicted in the bribery conspiracy. When asked whether he
would want to pay the officers’ bonuses if PUGH retained any money, Pugh said that “we would
make a choice,” and that the other choice would be simply to take all the money out of the
company because it could not do any business.

                                              7
