                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-11463         ELEVENTH CIRCUIT
                                                     MARCH 3, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

                D. C. Docket No. 07-00411-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALPHONSO GEORGE LAWRENCE,
a.k.a. Anthony Townsend,
a.k.a. James G. Parrish,
a.k.a. Paul Greg Reed,
a.k.a. Randall Smith,

                                                         Defendant-Appellant.


                       ________________________

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

                              (March 3, 2010)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Alphonso George Lawrence appeals his sentence of 60 months of

imprisonment following his plea of guilty to reentering the United States illegally

after conviction of an aggravated felony. 8 U.S.C. §§ 1326(a), (b)(2). Lawrence

argues that his sentence is unreasonable, and the government renews its argument

that Lawrence’s appeal is barred by the waiver in his plea agreement. We affirm.

      Lawrence entered an agreement to plead guilty to reentering the United

States illegally in exchange for three recommendations by the government that

Lawrence receive a sentence within the “applicable guidelines range as determined

by the Court”; a two-level downward adjustment for his acceptance of

responsibility, United States Sentencing Guideline § 3E1.1(a) (Nov. 2007); and a

four-level downward departure for his participation in the Fast Track Prosecution

Program, id. § 5K3.1. “In consideration for participation in the Fast Track

Program,” Lawrence agreed to waive the right to “directly appeal” or “collaterally

challenge” his “conviction, sentence, and any aspect of or matter relating to the

prosecution.”

      At his change of plea hearing, Lawrence affirmed that he “under[stood] the

significance of [the] proceeding and how it affect[ed]” him; he had reviewed and

discussed with counsel “in detail each and every term of [the] agreement and how



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it affect[ed]” him; and he had agreed to “each and every term and provision of

[the] agreement.” Lawrence acknowledged that he could not withdraw his plea of

guilt if the district court rejected the recommendations of the government to reduce

Lawrence’s base offense level, calculated the sentencing range differently from

defense counsel, or imposed a sentence above the advisory guideline range. The

district court asked Lawrence if he understood what rights he relinquished to

participate in the fast track program, which included the right to appeal or

challenge collaterally his sentence, and Lawrence responded affirmatively. The

district court later accepted Lawrence’s plea of guilty.

      The presentence investigation report provided a base offense level of 8,

U.S.S.G. § 2L1.2(a), increased that level by eight points because Lawrence had

been deported or remained unlawfully in the United States after conviction of an

aggravated felony, id. § 2L1.2(b)(1)(C), and then decreased that level by three

points for Lawrence’s acceptance of responsibility, id. § 3E1.1. Based on a

criminal history of III, the report provided a sentencing range between 18 and 24

months of imprisonment. The report stated that Lawrence might qualify for an

upward departure based on his criminal history. Id. § 4A1.3.

      The presentence report listed Lawrence’s 14 aliases and detailed his

extensive encounters with federal and state authorities. The report stated that



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Lawrence had been deported from the United States in 1986, after he attempted to

enter the country using an altered passport, and again in 1990 and 2003, after he

was convicted of reentering the United States illegally. The report provided

Lawrence’s extensive criminal history, which included an arrest in 1987 for traffic

offenses; convictions in 1987 and 1988 for loitering, unlawful use of a license, and

carrying a concealed firearm; a charge in 1989 that he had stabbed an inmate in the

back with a screwdriver; an arrest in 1989 for attempting to bribe an employee of

the Florida Department of Motor Vehicles to issue a fraudulent driver’s license; an

arrest in 2002 for grand theft auto; and an arrest in 2007 for being a felon in

possession of a firearm. The report also mentioned two other criminal incidents

involving Lawrence: a traffic stop in 1998 for speeding, from which Lawrence had

been released after he represented that he was a legal resident; and an arrest in

2007 for charges of attempted first degree murder, aggravated battery, and

shooting into a vehicle, which had been nol prossed.

      Lawrence objected to the report and argued that the district court should not

consider his uncharged misconduct. At the sentencing hearing, the district court

overruled Lawrence’s objection. The government moved for Lawrence to receive

a four-point downward departure for his participation in the fast track program and

stated that the request was made in exchange for Lawrence “giv[ing] up all right[s]



                                           4
to appeal.” After an extensive discussion about the effect of denying the

downward departure, the district court found that Lawrence was “technically

eligible” for the departure. The district court calculated Lawrence’s total offense

level at 9, which provided a sentencing range between 8 and 14 months of

imprisonment.

      The district court recited Lawrence’s extensive background and concluded

that a sentence within the Sentencing Guidelines would not be reasonable. The

district court described Lawrence’s criminal history as “horrendous” and decided

to vary upward from the sentencing range based on the sentencing factors, 18

U.S.C. § 3553(a). The district court stated that it could not “justify” sentencing

Lawrence to 14 months of imprisonment when the court had sentenced another

defendant, who had not been eligible for the fast track program, to 46 months for

reentering the United States illegally and that defendant was “citizen of the year . .

. compared to” Lawrence. The district court stated that the sentencing factors, 18

U.S.C. § 3553, and in particular “the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, to provide just

punishment for the offense and to afford adequate deterrence to criminal conduct, .

. . reasonably justif[ied] an upward variance.” The district court sentenced

Lawrence to 60 months of imprisonment and 3 years of supervised release.



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      Lawrence appealed and argued that he did not waive his right to appeal his

sentence knowingly and voluntarily. The government moved to dismiss the

appeal. We denied the motion summarily and instructed the government “to file a

brief on the merits.” The government again argues in its brief that the appeal

waiver bars Lawrence from challenging his sentence, but we need not revisit this

issue because Lawrence’s argument is meritless in any event.

      Lawrence argues that his sentence is unreasonable because the district court

varied upward based “entirely” on its implicit disagreement with the disparity

between the sentencing range provided for Lawrence under the fast track program

and the sentence imposed on another offender who was not eligible for the

program, but we disagree. The district court explained that its decision to vary

upward was based on Lawrence’s “history and characteristics,” which were so

“horrendous” “that the advisory guideline range just [did] not fix the parameters of

what [the court] would consider to be a reasonable sentence.” The district court

correctly calculated the advisory guideline range of 8 to 14 months, but the district

court reasonably determined that the sentencing range did not adequately reflect

Lawrence’s extensive criminal history. See United States v. Shaw, 560 F.3d 1230,

1237–40 (11th Cir. 2009). The district court determined that a sentence of 60

months of imprisonment was necessary to deter Lawrence from future similar



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crimes, protect the public against those potential crimes, and provide a just

punishment. See 18 U.S.C. §§ 3553(a), (c); United States v. Livesay, 525 F.3d

1081, 1090 (11th Cir. 2008) (discussing Gall v. United States, 552 U.S. 38, 128 S.

Ct. 586 (2007), and Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456 (2007)).

Lawrence has illegally reentered the United States three times since his first

deportation and each time has committed additional crimes. See United States v.

Burge, 407 F.3d 1183, 1188 (11th Cir. 2005) (“‘The sentencing factor at issue

here—recidivism—is a traditional, if not the most traditional, basis for a

sentencing court’s increasing an offender’s sentence.’” (quoting

Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230

(1998)). The district court did not abuse its discretion by sentencing Lawrence to a

term of imprisonment of 60 months.

      We AFFIRM Lawrence’s sentence.




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