                    Case: 11-13973          Date Filed: 09/25/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]




                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13973
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 1:11-cr-00013-KD-C-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus

LAULETTE LOVE,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (September 25, 2012)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 11-13973     Date Filed: 09/25/2012   Page: 2 of 6



      Laulette Love appeals her 60-month above-guideline sentence, imposed after

pleading guilty to bank fraud, in violation of 18 U.S.C. § 1344. On appeal, Love

argues that: (1) her sentence is substantively unreasonable because the district court

improperly balanced the 18 U.S.C. § 3553(a) factors by overemphasizing her criminal

history; and (2) her sentence should be vacated and remanded because it is unclear

whether the sentence is to run concurrently with a previously imposed state sentence.

After careful review, we affirm in part, and dismiss in part.

      The sentence a district court imposes is reviewed for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (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).

We review de novo a district court’s application of Federal Rule of Criminal

Procedure 36 to correct its judgment. United States v. Portillo, 363 F.3d 1161, 1164

(11th Cir. 2004).

      First, Love has not shown that her sentence is substantively unreasonable. We

consider the “‘substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,



                                          2
                 Case: 11-13973       Date Filed: 09/25/2012        Page: 3 of 6

515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,”

requiring us to determine “whether the sentence imposed by the district court fails to

achieve the purposes of sentencing as stated in section 3553(a).”1 Talley, 431 F.3d

at 788. “[W]e will not second guess the weight (or lack thereof) that the [district

court] accorded to a given factor . . . as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Snipes, 611

F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted), cert.

denied, 131 S.Ct. 2962 (2011). We will “vacate the sentence if, but only if, we are

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.” See

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

omitted), cert. denied, 131 S. Ct. 1813 (2011).

       Where the district court decides a variance is in order, the justifications must

be “compelling” enough to support the degree of the variance. United States v. Shaw,

       1
          The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
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
               Case: 11-13973      Date Filed: 09/25/2012     Page: 4 of 6

560 F.3d 1230, 1238 (11th Cir. 2009) (citations omitted). Imposition of a sentence

well below the statutory maximum is another indication of reasonableness. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (considering that the

sentence was well below the statutory maximum in finding the sentence reasonable).

       In this case, the district court did not abuse its discretion in sentencing Love

to an above-guideline sentence of 60 months. The district court noted Love’s

extensive history of fraud, identity theft, and theft charges, and it did so in the context

of the court’s duty to advance the statutory purposes of 18 U.S.C. § 3553(a). Indeed,

the record shows that the court based its sentence on Love’s criminal history and

characteristics, see 18 U.S.C. § 3553(a)(1), and found that Love’s sentence was

necessary to deter her from future crimes, see id. § 3553(a)(2)(B), and to protect the

public from those future crimes, see id. § 3553(a)(2)(C). Thus, although the

60-month sentence was a significant upward variance from Love’s guideline range,

the variance was supported by significant justification. See Shaw, 560 F.3d at

1240-41 (affirming upward variance from 30 to 37 months’ imprisonment to statutory

maximum of 120 months’ imprisonment as substantively reasonable where district

court methodically reviewed the § 3553(a) factors and, among other things, found that

the defendant had committed similar crimes before and that shorter sentences in the

past were ineffective to protect the public). Furthermore, Love’s 60-month sentence

                                            4
              Case: 11-13973     Date Filed: 09/25/2012    Page: 5 of 6

was well below the statutory maximum sentence of 30 years’ imprisonment, another

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

      We also reject Love’s claim that her sentence should be vacated and remanded

because it is unclear whether her sentence is to be served concurrently with a

previously imposed state sentence. Rule 36 provides that “[a]fter giving any notice

it considers appropriate, the court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an error in the record arising

from oversight or omission.” Fed.R.Crim.P. 36. This Rule may not be used “to make

a substantive alteration to a criminal sentence.” United States v. Pease, 331 F.3d 809,

816 (11th Cir. 2003). However, a district court may correct clerical errors in the

written judgment at any time “to ensure that the judgment is in accord with the oral

sentence.” Portillo, 363 F.3d at 1164. The entire record may be reviewed as extrinsic

evidence when attempting to discern the intent of the sentencing court. United States

v. Whittington, 918 F.2d 149, 151 (11th Cir. 1990). A sentence that is pronounced

orally takes precedence over any subsequently issued written criminal judgments.

United States v. Ridgeway, 319 F.3d 1313, 1315 (11th Cir. 2003). Other types of

allowable alterations to a judgment per Rule 36 are those that are “minor and

mechanical,” or that do not fundamentally alter a sentence by making it more onerous

to the defendant. See Portillo, 363 F.3d at 1165.

                                          5
               Case: 11-13973     Date Filed: 09/25/2012    Page: 6 of 6

      Here, the district court retained jurisdiction to correct its clerical error. See

Pease, 331 F.3d at 816 (noting that the district court does not lose jurisdiction to

amend a judgment to correct clerical errors pursuant to Fed. R. Crim. P. 36). The

district court’s amended judgment says that “the Court intended for the sentence to

run consecutive to the state sentence defendant is serving in Louisiana for the

unrelated bank fraud conviction.” There is no support for Love’s argument that the

oral pronouncement and written judgment show that the court intended to impose a

concurrent sentence. Rather, the statement made by the district court during the

sentencing hearing -- that “it will not be served concurrent” -- constitutes extrinsic

evidence indicating that the sentence was to be served consecutive to the state

sentence. See Whittington, 918 F.2d at 151. Thus, the complete record shows that

the amended judgment was made to ensure that the written judgment was in accord

with the oral sentence, which indicated that Love’s federal sentence would be served

consecutive to the state sentence. See Portillo, 363 F.3d at 1164. Because the record

is no longer ambiguous as to the court’s sentence, there is no longer a live

controversy as to this issue, and it is therefore moot. See De La Teja v. United States,

321 F.3d 1357, 1364 (11th Cir. 2003) (holding that when an issue in a case becomes

moot on appeal, we must dismiss as to the mooted issue).

      AFFIRMED IN PART, DISMISSED IN PART.

                                           6
