           Case: 16-13041   Date Filed: 05/09/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13041
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:15-cr-00064-TJC-JBT-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DAVID LEE MITCHELL,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 9, 2016)

Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       David Mitchell appeals his 120-month total sentence, imposed above the

Guideline range, after pleading guilty to aiding and abetting attempted bank fraud,

in violation of 18 U.S.C. §§ 1344(2) and 2, aiding and abetting aggravated identity

theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2, and aiding and abetting the

possession of counterfeit securities, in violation of 18 U.S.C. §§ 513(a) and 2. On

appeal, Mitchell argues that the sentence was procedurally and substantively

unreasonable. After review, 1 we affirm.

                                      I. DISCUSSION

       We briefly summarize the facts recounted by the district court when it

determined Mitchell’s sentence. Mitchell, now fifty-six years old, first became

involved in criminal activity in 1982, when he was convicted of perjury in official

proceedings. His presentence investigation report lists twenty-six other

convictions since then, including battery, burglary, grand theft, and multiple

convictions for forgery, uttering forged instruments, and executing fictitious

checks. He was convicted of passing stolen checks in 1988, the first of seventeen

convictions for similar offenses, committed steadily over the years until his most

recent in 2011. The district court observed that none of these convictions appeared

to deter Mitchell from returning to the same conduct each time.


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         We review the reasonableness of a sentence under the deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Irey, 612 F.3d 1160,
1188–89 (11th Cir. 2010) (en banc).
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      “When reviewing for procedural reasonableness, we ensure that the district

court: (1) properly calculated the Guidelines range; (2) treated the Guidelines as

advisory; (3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a

sentence based on clearly erroneous facts; and (5) adequately explained the chosen

sentence.” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010).

Mitchell bears the burden of showing his sentence is procedurally unreasonable,

United States v. De La Cruz Suarez, 601 F.3d 1202, 1223 (11th Cir. 2010), and he

takes issue only with the second factor listed above, contending the district court

failed to give the Guidelines range due consideration, resulting in the Guidelines

carrying effectively no weight at all. It is true that even though it is not bound by

the Guidelines, “a sentencing court may not give them so little consideration that it

amounts to not giving any real weight to the Guidelines range in imposing the

sentence.” United States v. Irey, 612 F.3d 1160, 1218 (11th Cir. 2010) (en banc)

(quotation omitted). But here, the district court thoroughly explained its sentence,

touching on each of the § 3553(a) factors, and expressing its conviction that the

Guidelines sentence was not sufficient to achieve those purposes. Indeed, the court

specifically and extensively explained why the Guidelines result was inappropriate

in this case. The court was entitled to place great weight on Mitchell’s criminal

history and the need for general and specific deterrence to protect the public,

noting that Mitchell had been committing crimes for decades, including multiple


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instances of the same fraudulent activity resulting in the present guilty plea. See 18

U.S.C. § 3553(a)(1), (2); see also United States v. Williams, 526 F.3d 1312, 1322–

23 (11th Cir. 2008) (holding a sentence to be reasonable where the sentencing

court explained why it attached great weight to one § 3553(a) factor). There was

no procedural error.

      Nor was Mitchell’s sentence substantively unreasonable. Irey, 612 F.3d at

1189 (“A district court abuses its discretion when it (1) fails to afford consideration

to relevant factors that were due significant weight, (2) gives significant weight to

an improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” (quotation omitted)). It is true that “[a] major

variance does require a more significant justification than a minor one—the

requirement is that the justification be sufficiently compelling to support the degree

of variance.” Id. at 1198 (quotation omitted). However, the court explicitly and

comprehensively considered all of the relevant factors in making its decision. That

Mitchell’s conviction was for an ordinary, low-level economic crime is not

dispositive; the court was entitled to place comparatively more weight on the fact

that these violations were part of a much broader and continuing pattern spanning

decades. Williams, 526 F.3d at 1322–23. The resulting sentence was below the

thirty-year statutory maximum Mitchell could have received, and we have upheld

variances of comparable magnitude. See United States v. Gonzalez, 550 F.3d


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1319, 1324 (11th Cir. 2008) (holding that a sentence under the maximum statutory

sentence available under law is an indicator of reasonableness); United States v.

Rosales-Bruno, 789 F.3d 1249, 1256–57 (11th Cir. 2015) (upholding sentence

more than three times as long as the top of the Guidelines range); United States v.

Early, 686 F.3d 1219, 1221–23 (11th Cir. 2012) (upholding sentence 113 months

above the Guidelines range). The district court’s thorough and forthright

discussion of the § 3553(a) factors in sentencing Mitchell does not leave a “definite

and firm conviction that the district court committed a clear error of judgment.”

Irey, 612 F.3d at 1190.

                                II. CONCLUSION

      For the foregoing reasons, we affirm Mitchell’s sentence.

      AFFIRMED.




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