                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11754         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 3, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                           D.C. Docket No. 1:10-cr-00204-WSD-ECS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

BRANDON RICHARD DELANCY,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                            (July 3, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Brandon Richard Delancy appeals his 36-month sentence on one of his two

counts of conviction, which varied downward from his applicable guideline range.

Delancy pled guilty to one count of access device fraud, in violation of 18 U.S.C.

§ 1029(a)(5). Delancy also pled guilty to one count of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1), and the district court sentenced him to the

mandatory 24 months’ imprisonment on that count, to run consecutively to the

sentence he now appeals. Delancy does not appeal the sentence on the § 1028A

offense. On appeal, Delancy argues that the district court’s failure to adequately

account for Delancy’s greater likelihood to be victimized while in prison made his

sentence for the § 1029 offense substantively unreasonable.

      We review the reasonableness of a sentence, regardless of whether the

sentence imposed is inside or outside the Guidelines range, under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128

S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We reverse only if “left with the definite

and firm conviction that 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 dictated by the facts of the case.” United States v. Irey,

612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813

(2011). Objections to a sentence raised for the first time on appeal are reviewed

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for plain error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). The

burden of establishing that a sentence is unreasonable lies with the party

challenging the sentence. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.

2008).

      Procedural reasonableness includes whether the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the §

3553(a) factors, did not select a sentence based upon clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.

Once we determine that a sentence is procedurally sound, we examine whether the

sentence was substantively reasonable in light of the totality of the circumstances

and the § 3553(a) factors. Id.

      A sentence may be substantively unreasonable where a district court

“unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent

§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on

impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009). However, “[t]he weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). A sentence imposed well below

the statutory maximum penalty is an indicator of a reasonable sentence. United

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States v. Gonzales, 550 F.3d 1319, 1324 (11th Cir. 2008).

      The Sentencing Guidelines state:

      Physical condition or appearance, including physique, may be
      relevant in determining whether a departure is warranted, if the
      condition or appearance, individually or in combination with other
      offender characteristics, is present to an unusual degree and
      distinguishes the case from the typical cases covered by the
      guidelines.

U.S.S.G. § 5H1.4. Cf. Koon v. United States, 518 U.S. 81, 111-12, 116 S.Ct.

2035, 2053, 135 L.Ed.2d 392 (1996) (holding that the district court did not abuse

its discretion by downwardly departing from the defendants’ guideline ranges in

part because of their susceptibility to abuse in prison).

      Although Delancy argues that his 36-month sentence on the § 1029 count

was substantively unreasonable, his arguments regarding the applicability of

U.S.S.G. § 5H1.4 suggest that he also challenges the procedural reasonableness of

that sentence. However, in this case, Delancy’s 36-month sentence was

procedurally reasonable. The district court properly calculated Delancy’s

guideline range, treated the Guidelines as advisory, based the sentence on

undisputed facts set forth in the PSI, and adequately explained the chosen

sentence. Moreover, the record indicates that the court expressly considered the

§ 3553(a) factors in determining Delancy’s sentence. Finally, the district court



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took into account Delancy’s argument about potential mitigating factors, including

his age, medical conditions, and vulnerability to abuse while in prison, in arriving

at a sentence of 36 months for the § 1029 count .

      The district court’s failure to depart downward from Delancy’s guideline

range, pursuant to U.S.S.G. § 5H1.4, did not result in a procedurally unreasonable

sentence. The district court did not rule as a matter of law that it lacked the

discretion to depart downward on this basis. Delancy never moved for a

downward departure and specifically stated that he did not object to the court’s

guideline calculations. See generally United States v. Dudley, 463 F.3d 1221,

1228 (11th Cir. 2006) (explaining that a refusal to depart is unreviewable unless

the court incorrectly believed that it lacked authority to depart). Additionally,

although the court did not address a downward departure, the court did vary

downward 21 months from the bottom of Delancy’s guideline range. As a result,

Delancy has not demonstrated that his sentence was procedurally unreasonable.

      Delancy’s 36-month sentence for Count 13 was also substantively

reasonable. His sentence was appropriate to promote respect for the law, provide

just punishment, provide adequate deterrence, and protect the public from further

crimes. See 18 U.S.C. § 3553(a)(2)(A)-(C). Moreover, his sentence was

significantly below his guideline range. Delancy’s sentence also reflected the

                                          5
nature and circumstances of the offense and his criminal history, background, and

personal characteristics. See 18 U.S.C. § 3553(a)(1).

      Although Delancy argues that the district court refused to consider his

arguments regarding his vulnerability to abuse in prison and wrongly dismissed

his expert’s testimony regarding those issues, the record shows that the district

court actively questioned Delancy’s expert regarding his opinion, took into

account Delancy’s vulnerability in prison in determining his below-guideline

sentence, and included in the judgment and commitment order recommendations

that the Bureau of Prisons evaluate Delancy’s physical condition and medical

needs in determining the appropriate designation for service of his sentence. The

fact that the district court chose to give more weight to other factors, including

Delancy’s age, medical condition, and the need for Delancy’s sentence to be

consistent with sentences for similar offenses, does not mean that the court abused

its discretion in sentencing Delancy. See Williams, 526 F.3d at 1322.

      AFFIRMED.




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