           Case: 13-10063   Date Filed: 10/09/2013   Page: 1 of 7


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10063
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:12-cr-00012-HL-TQL-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CEDRIC BELL,
a.k.a. CEDO,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 9, 2013)



Before DUBINA, MARCUS, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Cedric Bell appeals his 18-month sentence -- a variance from the guideline

range of 4 to 10 months -- imposed after he pleaded guilty to misprision of a

felony, in violation of 18 U.S.C. § 4. On appeal, Bell argues that his sentence is

procedurally and substantively unreasonable because the district court based the

upward variance on conduct comprising the essential elements of misprision of a

felony. He contends that the court wrongly understood the misprision of a felony

statute to require only that a person fail to report a felony to authorities, instead of

the correct reading of the statute: the correct reading also requires that the

defendant conceal or participate in the underlying felony. Thus, Bell argues, his

conduct participating in the underlying felonies merely constituted essential

elements of the offense and could not be used to vary upward.

      We review all sentences for reasonableness under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). The party challenging the sentence carries the burden to

demonstrate that it is unreasonable. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). When a sentencing argument is raised for the first time on

appeal, we review only for plain error. United States v. Bonilla, 579 F.3d 1233,

1238 (11th Cir. 2009).


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      “Whoever, having knowledge of the actual commission of a felony

cognizable by a court of the United States, conceals and does not as soon as

possible make known the same to [authorities], shall be fined under this title or

imprisoned not more than three years, or both.” 18 U.S.C. § 4. “Misprision of a

felony ‘requires both knowledge of a crime and some affirmative act of

concealment or participation.’” Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.

2002).



                           I. Procedural Reasonableness



      In determining reasonableness, we must determine whether the district court

committed a “significant procedural error” by “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.” Gall, 552 U.S. at 51,

128 S.Ct. at 597.

      As an initial matter, because Bell did not object before the district court that

the court erred in treating conduct that comprised the elements of the offense as

aggravating factors, we review his argument for plain error. See Bonilla, 579 F.3d


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at 1238. Although Bell is correct that misprision of a felony requires an

affirmative act of concealment or participation in the underlying felony, no

evidence suggests that the district court misunderstood the required elements of the

offense. See 18 U.S.C. § 4; Itani, 298 F.3d at 1216. Never did the court say or

distinctly indicate (as Bell suggests it did) that the simple failure to report a felony

was the only element of the offense. Thus, Bell has not carried his burden of

showing that the district court did not understand the elements of the offense and

committed procedural error, based on a misinterpretation of the criminal statute.




                            II. Substantive Reasonableness



      The district court is required to impose a sentence that is “sufficient, but not

greater than necessary, to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need for the sentence imposed to reflect the seriousness

of the offense, promote respect for the law, provide just punishment for the

offense, deter criminal conduct, and protect the public from future criminal

conduct. 18 U.S.C. § 3553(a)(2)(A)-(C). A district court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, and the applicable guideline range. Id.

§ 3553(a)(1), (a)(3)-(4).

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      We will not remand for resentencing unless “the district court committed a

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences.” United States v. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008). Imposition of a sentence well below the

statutory maximum is an indication of reasonableness. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (considering that defendant’s

sentence was well below the statutory maximum in finding the sentence

reasonable). A sentence may be substantively unreasonable if it is based on an

impermissible factor. Pugh, 515 F.3d at 1191-92. But “[t]he weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court, and we will not substitute our judgment in weighing the

relevant factors.” United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.

2009).

      Extraordinary justification or rigid mathematical formulas are not required

for a sentence outside the guidelines range, but the district court should explain

why the variance is appropriate in a particular case and the justification for the

variance must be “sufficiently compelling to support the degree of the variance.”

Gall, 552 U.S. at 47, 50, 128 S.Ct. at 595, 597. We must give deference to the

district court’s decision that the § 3553(a) factors justify the extent of the variance.

Id. at 51, 128 S.Ct. at 597.


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      In imposing an upward variance, the district court may consider information

about a defendant’s “background, character, and conduct.” United States v. Tome,

611 F.3d 1371, 1379 (11th Cir. 2010); see also 18 U.S.C. § 3661 (“No limitation

shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States may

receive and consider for the purpose of imposing an appropriate sentence.”).

      Because Bell argued before the district court that his sentence unreasonably

exceeded the guideline range, his substantive reasonableness argument has been

preserved. Nevertheless, the district court did not abuse its discretion in imposing

the above-guideline, 18-month sentence. See Gall, 552 U.S. at 41, 128 S.Ct. at

591. The record shows that the district court considered Bell’s advisory guideline

range, but determined that the § 3553(a) factors required a greater sentence. The

court properly considered that Bell arranged and was present during the sale of

stolen items, and that he accompanied co-conspirator Robert Kier to a home that

Kier had burglarized: this information was relevant to Bell’s background,

character, and conduct. See 18 U.S.C. § 3661; Tome, 611 F.3d at 1379. Thus,

because the court was permitted to consider Bell’s conduct in imposing the

sentence, it did not base its sentence on an impermissible factor. See Pugh, 515

F.3d at 1191-92. Furthermore, the court adequately explained its reasons --

chiefly, more than minimally significant criminal participation -- for the variance,


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and the justification for the variance was sufficiently compelling to support it. See

Gall, 552 U.S. at 50, 128 S.Ct. at 597. To the extent that Bell urges us to re-weigh

the § 3553(a) factors to place greater emphasis on his mitigating factors, we will

not do so. See Langston, 590 F.3d at 1237. Finally, Bell’s 18-month sentence fell

well below his 3-year statutory maximum sentence, another indicator of

reasonableness. See Gonzalez, 550 F.3d at 1324.

      In sum, Bell has not shown that his sentence was procedurally or

substantively unreasonable. Accordingly, we affirm.

      AFFIRMED.




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