                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JULY 9, 2009
                            No. 06-14461                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 03-80146-CR-KAM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

CHARLES J. KERNS,

                                                        Defendant-Appellant.


                      ________________________

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

                              (July 9, 2009)

Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.

PER CURIAM:
      Charles J. Kerns, Sr., appeals his 240-month sentence imposed on remand of

his case for resentencing, following his convictions for conspiracy to commit

securities fraud, 18 U.S.C. § 371, securities fraud, 15 U.S.C. §§ 78j(b) and 78ff(a),

wire fraud, 18 U.S.C. § 1343, and money laundering, 18 U.S.C. § 1957. Kerns

appeals the district court’s denial of his appointed counsel’s motion to withdraw

from further representation prior to resentencing. Kerns asserts the district court

abused its discretion in denying counsel’s motion to withdraw because his

complaints about his attorney’s performance during his original pre-trial, trial,

sentencing, and appellate proceedings created a conflict of interest between himself

and counsel. He contends he was prejudiced by the district court’s denial of the

motion because a different attorney would have raised arguments regarding the

loss calculation used to determine his sentence, and, as a result, he would have

received a lower sentence. Kerns further argues his sentence was substantively

unreasonable because: (1) his advanced age rendered his 240-month sentence a de

facto life sentence; and (2) his codefendants received sentences substantially

shorter than the sentence he received.

                                          I.

      We review a district court’s ruling on counsel’s motion to withdraw for

abuse of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir.



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1997). In Calderon, we held the district court did not abuse its discretion in

denying counsel’s motion to withdraw from further representation, where, although

the defendant had vigorously complained about counsel’s performance at trial, the

defendant and his counsel had communicated with each other about the

defendant’s sentencing hearing. Id. at 1342-43. As the basis for his motion to

withdraw, counsel referred to a series of pro se letters the defendant had written to

the district court after his conviction, in which the defendant asserted that counsel

had failed to file proper motions, was biased and inexperienced, and was

unenthusiastic about his representation of the defendant. Id. Counsel argued his

continued representation of the defendant would be unethical and contrary to his

client’s wishes, but conceded he still could make legal arguments on the

defendant’s behalf. Id. at 1343. This Court reasoned the district court had not

abused its discretion in denying counsel’s motion because counsel had been able to

communicate with the defendant regarding the sentencing hearing. Id.

      The record reflects Kerns and his counsel remained able to communicate

about his resentencing proceedings. Additionally, counsel admitted, both at the

hearing on his motion to withdraw and at resentencing, that he could represent

Kerns in an ethical and competent manner. Therefore, the district court did not

abuse its discretion in denying counsel’s motion to withdraw. Because the district



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court did not abuse its discretion, we do not discuss Kerns’s assertion that a

different attorney may have successfully argued for a lower loss amount

attributable to him under the Guidelines.

                                            II.

      We review a defendant’s sentence for reasonableness. Gall v. United States,

128 S. Ct. 586, 594 (2007); United States v. Talley, 431 F.3d 784, 785 (11th Cir.

2005). Review for reasonableness is deferential. Talley, 431 F.3d at 788. The

reasonableness of a sentence is reviewed under an abuse-of-discretion standard

regardless of whether the sentence imposed is inside or outside a defendant’s

guideline range. United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir. 2008)

(citing Gall, 128 S. Ct. at 597). Under the abuse-of-discretion standard, we will

reverse only if the district court made a clear error of judgment. Id. at 1191. “[A]

sentence may be substantively unreasonable, regardless of the procedure used.”

United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).

        The party challenging the sentence “bears the burden of establishing that

the sentence is unreasonable in the light of [the] record and the factors in section

3553(a).” Talley, 431 F.3d at 788. We have recognized that “there is a range of

reasonable sentences from which the district court may choose.” Id. Where the

court imposes a sentence that is within the guideline range, we ordinarily expect



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that sentence to be reasonable. Id. Where the sentence imposed is outside the

guideline range, we may not presume the sentence is unreasonable. Gall, 128 S.

Ct. at 597. We have rejected a defendant’s argument that his 305-month sentence

was unreasonable under § 3553(a) because he was 65 years’ old when he was

sentenced. United States v. Dowd, 451 F.3d 1244, 1256-57 (11th Cir. 2006)

(noting that § 5H1.1 generally discourages the use of age as a basis for a downward

departure). Under 18 U.S.C. § 3553(a)(6), a district court should consider, among

other things, “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” We have

held a defendant’s sentence was reasonable in light of § 3553(a)(6) where,

although the defendant’s sentence was greater than the sentences his codefendants

received, factors such as the defendant’s role in coordinating a scheme or his

codefendants’ substantial assistance to the government caused the disparity to be

reasonable. See, e.g., United States v. Thomas, 446 F.3d 1348, 1356-57 (11th Cir.

2006) (holding the defendant’s 121-month sentence was reasonable despite the fact

that his codefendants’ sentences ranged from 41 to 53 months’ imprisonment

because the defendant had coordinated the offense); United States v. Williams, 526

F.3d 1312, 1323 (11th Cir. 2008) (holding the defendant’s sentence was

reasonable, despite the fact that a co-defendant received a substantially shorter



                                           5
sentence, because the co-defendant’s sentence reflected his substantial assistance to

the government).

      Kerns has not met his burden of demonstrating his sentence was

unreasonable in light of the § 3553(a) factors. Talley, 431 F.3d at 788. In

consideration of Kerns’s age, the district court weighed Kerns’s advanced age

against the seriousness of his offense and the need to protect the public from fraud,

and, accordingly, varied downward from the minimum of Kerns’s guideline range

by 84 months. In light of the Sentencing Commission’s general disfavor of age as

a mitigating factor, the fact that the district court did not give Kerns a further

downward variance based on his age did not cause his sentence to be unreasonable.

See U.S.S.G. § 5H1.1; Dowd, 451 F.3d at 1256-57. Moreover, while Kerns

received a substantially longer sentence than his four codefendants, various factors

warranted this disparity. First, two of Kerns’s four codefendants were not

convicted of the same conspiracy as Kerns, but of unrelated money marketing

conspiracies. Second, Kerns did not dispute that each of his codefendants had

cooperated with the government and received substantial-assistance departures

under U.S.S.G. § 5K1.1. Third, while the record reflects that Kerns’s codefendants

participated in the conspiracy by illegally selling stock, Kerns was the one who

fraudulently solicited the stock and directed the stock be sold. Thus, the



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dissimilarities between Kerns and his codefendants were such that it was not

unreasonable for Kerns to receive a substantially longer sentence than his

codefendants. See Thomas, 446 F.3d at 1356-57; Williams, 526 F.3d at 1323. The

district court did not abuse its discretion in determining a 240-month sentence was

necessary to reflect the seriousness of Kerns’s offense, deter crime, and protect the

public. 18 U.S.C. § 3553(a); Pugh, 515 F.3d at 1189-90. Thus, Kerns has not met

his burden of demonstrating his sentence was substantively unreasonable. Talley,

431 F.3d at 788.

      Accordingly, after review of the record and the parties’ briefs, we affirm.

      AFFIRMED.




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