                                                         [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-10479         ELEVENTH CIRCUIT
                                                      OCTOBER 19, 2011
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________          CLERK

                     D.C. Docket No. 9:09-cr-80092-KLR-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus


WILLIAM M. KIRSCHNER,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (October 19, 2011)

Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      William M. Kirschner appeals his 120-month sentence imposed on remand

upon his pleading guilty to mail fraud in violation of 18 U.S.C. §§ 1341 & 2. In
Kirschner’s initial appeal before this Court, we concluded that his 120-month

sentence was procedurally unreasonable, vacated that sentence and remanded to

the district court for resentencing. Kirschner argues that at resentencing the

government violated the terms of the plea agreement by arguing in support of a

sentence above the guidelines range. Kirchsner also argues that the sentence the

district court imposed on remand is procedurally and substantively unreasonable.

After thorough review, we affirm.

                                         I.

      Kirschner first argues that the government violated the term of his plea

agreement in which it agreed to recommend a within-guideline sentence. We

review de novo whether the government has breached a plea agreement. United

States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008). “[W]hether the

government [has] violated [a] plea agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.” United

States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (quotation marks omitted).

The government breaches a plea agreement when it makes an unequivocal promise

to recommend a particular sentence and then advocates a position that is

incompatible with that promise. Id. at 370–71.




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      We conclude that the government did not advocate a position that was

incompatible with its promise to recommend a within-guideline sentence. At

resentencing when the district court asked the government to explain its

understanding of the Eleventh Circuit opinion remanding the case, the government

stated that the opinion did not require a de novo resentencing but merely required

the district court to explain its reasons for imposing Kirschner’s particular

sentence. The government clearly informed the district court, however, that its

“recommendation is going to remain that this be a guideline sentence, at the top

end of the guidelines, because that is consistent with our plea agreement.” Later

in the sentencing hearing, the government explained its understanding of the

reasons why the district court sentenced Kirschner above the guidelines range

during Kirschner’s original sentencing. When Kirschner objected on the basis that

the government was taking a position contrary to the plea agreement, counsel for

the government reiterated:

      I have been very clear that we are advocating for a position within the
      guideline range consistent with our plea agreement . . . . Our position
      is, has been and remains, that a sentence at the very top end of the
      guideline range for all the reasons we set forth previously consistent
      with our plea agreement is the sentence.




                                          3
It is clear from the record that the government argued in support of a within-

guideline sentence at Kirschner’s resentencing. Thus, the government did not

breach the terms of the plea agreement.

                                          II.

      Kirschner next argues that his sentence was procedurally and substantively

unreasonable. We review the reasonableness of a sentence under a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). In reviewing for reasonableness, we look first at whether the

district court committed any significant procedural error, such as relying upon

clearly erroneous facts, miscalculating or failing to calculate the advisory

guidelines range, treating the guidelines as mandatory, or failing to consider the 18

U.S.C. § 3553(a) factors. Id. at 51, 128 S. Ct. at 597. “If, after correctly

calculating the guidelines range, a district court decides that a sentence outside

that range is appropriate, it must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the

variance.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008)

(quotation marks omitted). If the sentencing decision is procedurally sound, we

then consider the substantive reasonableness of the sentence, “tak[ing] into




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account the totality of the circumstances, including the extent of any variance from

the Guidelines range.” Id.

                                         A.

      Kirschner argues that the district court committed procedural error by (1)

failing to conduct a de novo resentencing and recalculation of the advisory

guideline range based on the version of the guidelines in effect at the time of

resentencing; (2) selecting a sentence based on “unproven allegations” and

“misinformation”; (3) failing to adequately explain the justification for the

sentence imposed; and (4) imposing an upward departure without providing prior

notice. With respect to Kirschner’s first argument, our limited remand instructed

the district court to calculate the guidelines range on the record and to explain

fully its reasons for imposing a sentence above the guideline range in light of the §

3553(a) factors. The district court followed our mandate and lacked jurisdiction to

do anything more. See United States v. Davis, 329 F.3d 1250, 1252 (11th Cir.

2003) (affirming district court’s refusal on remand to conduct a de novo

resentencing because this Court’s mandate limited the permissible inquiry on

remand).

      Further, the district court properly determined that it was required to apply

the version of the sentencing guidelines that was in effect at the time of

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Kirschner’s original sentencing. In resentencing on remand, a district court “shall

apply the guidelines . . . that were in effect on the date of the previous sentencing

of the defendant prior to the appeal, together with any amendments thereto by any

act of Congress that was in effect on such date . . . .” 18 U.S.C. § 3742(g)(1).

Thus, Kirschner’s argument that that he was entitled to the benefit of the

Sentencing Commission’s amendment to U.S.S.G. § 4A.1.1 is unavailing, because

that amendment was neither in effect at the time of his previous sentencing nor

given retroactive effect. See United States v. Bordon, 421 F.3d 1202, 1207 (11th

Cir. 2005) (Section 3742(g)(1) requires use of prior guidelines where there has

been favorable guidelines change that was not given retroactive effect).

      Nor did the district court rely on “unproven allegations” and

“misinformation” in concluding that Kirschner was a “serial fraudster” and that a

variance above the guidelines range was warranted to serve the § 3553(a)

sentencing goals of deterring future criminal conduct and promoting respect for

the law. As Kirschner acknowledges, and as the presentence investigation report

reveals, he had two previous convictions for fraud-based crimes. See United

States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“failure to object to

allegations of fact in a PSI admits those facts for sentencing purposes”). One of

Kirschner’s convictions, for grand theft, related to his operation of an unlicensed

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mortgage lending business. The other conviction was for mail fraud related to

Kirschner’s fraudulent operation of a corporation that he solely owned. Kirschner

committed the current offense while still on supervised release for his mail fraud

conviction.

       We also reject Kirschner’s argument that the district court at resentencing

failed to explain the basis for his above guideline sentence. A district court must

“set forth enough to satisfy the appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468

(2007). Here the district court stated on the record that Kirschner’s guideline

range was 63 to 78 months, based on an offense level of 22 and criminal history

category of IV. Kirschner conceded that the guideline range was accurate.1 The

district court allowed Kirschner’s counsel to argue in support of a within-guideline

sentence and considered that argument. In addition, the district court considered

the § 3553(a) factors and explained that the need for deterrence, the seriousness of




       1
         Kirschner’s argument that 18 U.S.C. § 3742(g)(2) prevented the district court from
varying outside of the guidelines range at resentencing lacks merit. The Supreme Court has held
that 18 U.S.C. § 3742(g)(2) does not prevent a district court from imposing a variance in light of
the § 3553(a) factors on remand. See Pepper v. United States, —U.S.—, 131 S. Ct. 1229,
1244–45 (2011) (invalidating § 3742(g)(2) as unconstitutional under the Sixth Amendment).

                                                7
the offense, the characteristics of the defendant and the need to promote respect

for the law justified a variance above the guideline range.

      Specifically, the district court noted that Kirschner had engaged in similar

fraudulent criminal conduct in the past and that his two previous convictions and

punishments had not deterred him from committing the present fraudulent crime.

The court concluded that an above guideline sentence was necessary to deter

Kirschner from engaging in similar fraudulent conduct in the future. In addition,

the court explained that Kirschner’s sentence was necessary in order to protect the

public by depriving Kirschner of the opportunity to continue to defraud others.

The court also noted the seriousness of Kirschner’s crime, which involved

defrauding unsuspecting clients who invested a substantial amount of money. The

district court’s explanation was sufficient.

      Further, because the district court applied a variance, and not a departure,

the notice requirement of Federal Rule of Criminal Procedure Rule 32(h) did not

apply. See Irizarry v. United States, 553 U.S. 708, 713–17, 128 S. Ct. 2198,

2203–04 (2008); see also United States v. Kapordelis, 569 F.3d 1291, 1316 (11th

Cir. 2009) (explaining that “[i]n determining whether the district court applied an

upward departure under the Guidelines or a variance under the 18 U.S.C.

§ 3553(a) factors, we consider whether the district court cited to a specific

                                          8
guideline departure provision and if the court’s rationale was based on its

determination that the Guidelines were inadequate”). In this case the district court

did not cite to any specific guideline departure provision. Rather, the district court

made clear that “[t]he basis for [Kirschner’s] sentence is 18 U.S.C. § 3553(a).”

The district court explained that it was imposing “a variance” because “the

Sentencing Guidelines are inadequate” in Kirschner’s case. Thus, because the

district court applied a variance based on the § 3553(a) factors, it had no duty to

provide prior notice under Rule 32(h). Irizarry, 553 U.S. at 713–17, 128 S. Ct. at

2203–04.

                                         B.

      We also reject Kirschner’s argument that his sentence is substantively

unreasonable. Kirschner’s sentence is well below the twenty-year statutory

maximum for violations of 18 U.S.C. §§ 1341 & 2. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (upholding sentence in part

because it was “well below” the statutory maximum). Moreover, “[w]e will defer

to the district court’s judgment regarding the weight given to the § 3553(a) factors

unless the district court has made a clear error of judgment and has imposed a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” Id. at 1324 (quotation marks omitted). In light of Kirschner’s pattern of

                                          9
fraudulent criminal behavior, we cannot conclude on this record that the district

court “made a clear error of judgment” or “imposed a sentence that lies outside the

range of reasonable sentences dictated by the facts of the case.” Id.

      For these reasons, we affirm Kirschner’s sentence.

      AFFIRMED.




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