                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             July 29, 2009
                              No. 08-14809                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 08-00074-CR-WS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

SCOTT DOUGLAS MYERS,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 29, 2009)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Scott Douglas Myers appeals his 96-month sentence imposed for conspiracy
to commit bank fraud and making or possessing counterfeited securities. On

appeal, he argues that his sentence was substantively unreasonable because: (1) the

facts of his case did not justify the district court’s upward variance from his

guidelines range of 51 to 63 months of imprisonment; and (2) the upward variance

was improperly based on factors that also were used to calculate his guidelines

range. In addition, Myers argues that the district court plainly erred by ordering

that his 96-month sentence run consecutively to any future sentence imposed by

another district court for the conduct underlying his present offense. We AFFIRM.

                                 I. BACKGROUND

      On 17 April 2008, Myers pleaded guilty to one count of conspiracy to

commit bank fraud, in violation of 18 U.S.C. § 1349, and one count of making or

possessing counterfeited securities, in violation of 18 U.S.C. § 513. At his guilty-

plea hearing, the government articulated the factual basis for Myers’s plea as

follows: In February 2008, the government received information that an individual

in a green minivan was recruiting people from outside a homeless shelter to cash

false payroll checks at Wal-Mart stores. Doc. 160 at 22. Officers stopped the van

in Mobile County, Alabama. Id. The driver of the van, Joseph Stanley, told the

officers that a group of four people, led by Myers, had asked him to help them

recruit homeless people to cash false payroll checks at Wal-Mart stores. Id. at 22-



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23. Three of Myers’s co-defendants consented to searches of their residences and

made statements to the police. Id. at 23. Based on these searches and statements,

officers learned that, beginning in 2007, Myers and his co-defendants had recruited

homeless people in various cities in the United States. They would use a homeless

individual’s personal information to print false payroll checks payable to the

homeless individual, and then transport the individual to a Wal-Mart store to cash

the check, which was typically made out in the amount of $250-$300. Id. The

homeless individual who cashed the check would receive approximately $25 of the

check amount, while Myers and his co-defendants would split the remainder. Id. at

23-24.

         Under the Sentencing Guidelines, Myers’s base offense level was seven,

pursuant to U.S.S.G. § 2B1.1(a)(1). According to the presentence investigation

report (“PSI”), Myers and his co-defendants had victimized at least 119 Wal-Mart

stores in various cities in Louisiana, Texas, Alabama, Oklahoma, Arkansas,

Kansas, and Missouri, resulting in a loss of $94,846.51. For the purpose of

calculating Myers’s guideline range, this amount was determined to be the actual

loss in the case, yielding an eight-level increase pursuant to U.S.S.G.

§ 2B1.1(b)(1)(E), because the loss amount was more than $70,000 but less than

$120,000. Because the PSI indicated that Myers had orchestrated the fraudulent



                                          3
scheme and his co-defendants had viewed him as their leader, his offense level was

increased by four levels for acting as a leader or organizer of criminal activity

involving five or more participants, under U.S.S.G. § 3B1.1(a). Myers’s offense

level was further increased by two levels, pursuant to U.S.S.G. § 2B1.1(b)(9)(A),

for relocating a fraudulent scheme to another jurisdiction in order to evade law

enforcement. The probation officer then decreased Myers’s offense level by three

levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b),

yielding a final adjusted offense level of 18. Myers’s criminal history, which

included seven counts of conviction that were related to fraudulent behavior,

initially was given a criminal-history score of ten. Because Myers was on

supervised release as a result of his previous convictions in the Northern District of

Ohio at the time he committed his present offenses, the probation officer added two

additional points to his criminal-history score, resulting in a total criminal-history

score of 12 and a criminal history category of V. Accordingly, based on a total

offense level of 18 and a criminal history category of V, the probation officer set

Myers’s guideline range at 51 to 63 months of imprisonment.

      At sentencing, the district court noted that it had planned on conducting a

hearing concerning Myers’s revocation of supervised release in a matter that had

been transferred to the court from the Northern District of Ohio, and that Myers



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had objected to the court conducting the revocation hearing. Doc. 160-2 at 5. The

parties noted that Myers’s supervised release was subject to revocation due, in part,

to the conduct underlying Myers’s present offense. Id. at 4-5. Noting Myers’s

objection, the district court indicated that the revocation hearing could take place in

the Northern District of Ohio at a later date, absent an agreement to the contrary by

the parties. Id. at 6-7.

       The district court adopted the factual findings and guideline applications

contained in the PSI. Id. at 36. Myers requested that the court sentence him at the

low end of his guideline range, arguing that the PSI overrepresented his criminal

history. Id. at 37. The government asserted that the court should sentence Myers

at the high end of his guideline range because: (1) Myers was serving a term of

supervised release when he committed his present offenses; and (2) Myers’s

fraudulent scheme was extensive, causing significant harm in a number of states.

Id. at 37-38. The district court then sentenced Myers to a term of 96 months of

imprisonment and 5 years of supervised release, noting that: (1) Myers’s scheme

was extensive, targeting a large number of Wal-Mart stores and utilizing numerous

homeless individuals to perpetrate fraud; (2) Myers had previous convictions in

two federal courts, including a conviction for failure to appear; and (3) Myers was

on supervised release for federal offenses at the time he committed his present



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offenses. Id. at 38-41. The district court specified that its sentence would run

consecutively to the sentence imposed upon revocation of Myers’s supervised

release and to any sentence imposed in any jurisdiction based on his fraudulent

scheme. Id. at 40-41. The district court provided the following explanation for its

sentence:

       It is the judgment of this Court that a guideline sentence is
       inappropriate and that a sentence above the Guidelines is needed to
       reflect the seriousness of the offense, promote respect for the law, and
       provide just punishment to afford adequate deterrence to criminal
       conduct and to protect the public from your further crimes.

       Apparently, we have been unsuccessful in protecting the public from
       your further crimes by punishing you before and putting you on
       supervised release, only to have you continue to perpetrate crimes
       against the United States. So, a sentence within the Guidelines does
       not do that.

Id. at 40.

       Myers objected to his sentence as unreasonable because it was above his

guideline range. Id. at 43. In its order, the district court specified that the 96-

month sentence would run “consecutively to the federal revocation yet to be

imposed in the Northern District of Ohio, or any other jurisdiction where charges

are brought, related to this case.” Doc. 128 at 2. Myers did not object to the

district court’s determination that his sentence would be served consecutively to

any future sentence imposed for related conduct. See generally Doc. 160-2.



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                                  II. DISCUSSION

A.    Reasonableness of Sentence

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

552 U.S. 38, ___, 128 S. Ct. 586, 594 (2007); United States v. Talley, 431 F.3d

784, 785 (11th Cir. 2005) (per curiam). 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 (11th Cir. 2008) (citing Gall, 552 U.S. at ___, 128 S.Ct. at 591). 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 both [the] record and the factors in section

3553(a).” Talley, 431 F.3d at 788. Section 3553(a) provides that, in imposing a

sentence, a district court must consider:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need 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 deterrence; (4) the need to protect the public; (5)

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the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the
Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims.

Id. at 786. We have recognized that “there is a range of reasonable sentences from

which the district court may choose.” Id. at 788. Where the court imposes a

sentence that is within the guideline range, we ordinarily expect that sentence to be

reasonable. Id. Where the sentence imposed is outside the guideline range, we

may not presume the sentence is unreasonable. Gall, 552 U.S. at ___, 128 S.Ct.

at 597. We may, however, consider the extent of the variance, giving due

deference to the district court’s determination that the § 3553(a) factors justify the

extent of the variance. Id.

      District courts may determine, on a case-by-case basis, the relative weight to

give to the guidelines, as long as this determination is made with reference to the

§ 3553(a) factors. Hunt, 459 F.3d at 1185. We have rejected a defendant’s

argument that a district erred by varying above his guideline range based on his

criminal history, even though his criminal history already was reflected in his

guideline range. See United States v. Williams, 526 F.3d 1312, 1324 (11th Cir.

2008). Moreover, § 3553(a)(1) requires that the district court consider “the nature

and circumstances of the offense and the history and circumstances of the



                                           8
defendant.” 18 U.S.C. § 3553(a)(1).

       As an initial matter, we note that Myers challenges only the substantive

reasonableness of his sentence, not its procedural reasonableness. See United

States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008) (explaining that a

procedural error would include a district court failing to calculate, or improperly

calculating, a defendant’s guideline range; treating the guidelines as mandatory;

failing to consider the § 3553(a) factors; choosing a sentence based on clearly

erroneous facts; or failing to explain its chosen sentence). Accordingly, Myers has

abandoned any claim as to the procedural reasonableness of his sentence. United

States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003) (stating that a party

abandons an issue if he does not raise it in his initial brief).

       Here, Myers has failed to meet his burden of demonstrating that his sentence

was substantively unreasonable. Because Myers led others in an extensive

fraudulent scheme, resulting in a loss amount of almost $95,000, had a lengthy

criminal history, and committed his present offenses while serving a term of

supervised release for another federal offense, the court did not abuse its discretion

in determining that a 96-month sentence was necessary to deter criminal behavior

and promote respect for the law. Williams, 526 F.3d at 1322-23 (finding that a

sentence above the guidelines range was not unreasonable where the district court



                                             9
considered several of the § 3553 factors in determining the sentence).

      Moreover, the district court did not abuse its discretion in determining that

Myers’s guideline range failed to serve the purposes of sentencing in this case, and

did not improperly consider Myers’s criminal history and supervised release

violations for purposes of an upward variance, despite the fact that his criminal

history was used to calculate his guideline range. Id. at 1323-24. While Myers

contends that his sentence necessarily exceeds those received by similarly situated

defendants because the court varied above his guideline range based on factors that

were used to calculate his guideline range, his argument lacks merit because, as

noted previously, a district court does not abuse its discretion in considering a

factor used to calculate a defendant’s guideline range for purposes of an upward

variance under § 3553(a). Id.

      Because the district court has the discretion to determine that a sentence

above a defendant’s guideline range is necessary to serve the purposes of

sentencing, the district court did not abuse its discretion in imposing an upward

variance, regardless of whether it based the variance on factors that also were used

to calculate Myers’s guideline range. Furthermore, given the serious and extensive

nature of Myers’s offense and his likelihood of recidivism, Myers has not met his

burden of demonstrating that his sentence was substantively unreasonable.



                                          10
B.       Order That Sentence Run Consecutively to Future Sentence(s)

         Where a defendant raises an argument for the first time on appeal, we review

for plain error only. United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir.

2007). “Under this standard, we may exercise our discretion to correct a forfeited

error where there is (1) an error, (2) that is plain, (3) that affects substantial rights

(which usually means that the error was prejudicial), and (4) that seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. In order

for an error to be “plain,” it must be contrary to controlling precedent or the clear

language of a statute or rule. United States v. Lett, 483 F.3d 782, 790 (11th Cir.

2007).

         Under 18 U.S.C. § 3584(a), “[i]f multiple terms of imprisonment are

imposed on a defendant at the same time . . . the terms may run concurrently or

consecutively. . . . Multiple terms of imprisonment imposed at different times run

consecutively unless the court orders that the terms are to run concurrently.” 18

U.S.C. § 3584(a). In United States v. Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993),

we recognized that § 3584(a) does not precisely address whether a federal district

court possesses authority to order that its sentence run consecutively to an

unimposed, unrelated state sentence. We held that it does, primarily basing our

decision on principles of dual sovereignty and the need to protect both the federal



                                            11
and the state courts’ right to ensure that the defendant serve the entirety of his

federal and state sentences. See id. at 1507-10.

      In United States v. Andrews, 330 F.3d 1305, 1306 (11th Cir. 2003), we

considered a similar case where a district court sentenced the defendant to 24

months of imprisonment upon revocation of his supervised release. Noting that

both federal and state charges had been filed against the defendant for the same

conduct by which he had violated the terms of his supervised release, the district

court ordered that his sentence run “consecutively to any other term of

imprisonment imposed for any criminal conduct that is the basis of the violation.”

Id. (quotation omitted). Relying on Ballard, we held that the district court

possessed the authority to order that its sentence run consecutively to any future

sentence imposed for related conduct. Id. at 1307-08. Although the district court

order at issue in Andrews appeared to implicate federal sentences that had not been

imposed, we did not specifically discuss the potential concerns that could arise

where a district court orders that its sentence run consecutively to an unimposed,

future federal sentence. See id. at 1306-07.

      Nevertheless, Myers cannot show plain error because he cites no controlling

precedent holding that a district court may not order that its sentence run

consecutively to another district court sentence that has not yet been imposed.



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Lett, 483 F.3d at 790.

                               III. CONCLUSION

       Myers has not met his burden of demonstrating that his sentence was

substantively unreasonable, and he cannot show that the district court plainly erred

by ordering that its sentence run consecutively to a future, unimposed federal

sentence. Accordingly, we AFFIRM the sentence imposed by the district court.

      AFFIRMED.




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