                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                MAR 9, 2010
                              No. 09-13470                      JOHN LEY
                          Non-Argument Calendar                   CLERK
                        ________________________

                  D. C. Docket No. 05-00324-CR-11-CAP-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANGEL MAZARIEGOS,
a.k.a. Grumpy,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (March 9, 2010)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Angel Mazariegos appeals the reasonableness of his 140-month sentence,
imposed following his conviction for conspiring to violate the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). On

appeal, Mazariegos argues that the district court’s articulated reasons for the

upward variance, to more than three times the sentence recommended by the

guidelines, do not justify the extent of the deviation from the advisory guidelines

range. Upon review, we conclude that the district court did not abuse its discretion

and we affirm the sentence.

       This appeal is before us after resentencing. See United States v. Sandoval,

325 Fed. Appx. 828 (11th Cir. 2009) (unpublished). To summarize the relevant

facts, Mazariegos is a member of the Sur-13 gang. Mazariegos and other gang

members were charged in a 31-count superceding indictment.1 The charges against

Mazariegos included conspiracy to violate RICO based on a drive-by shooting and

carjacking, attempted murder of a rival gang member, discharging a firearm during

and in relation to the attempted murder, and using and carrying a firearm in

connection with the carjacking. Following a jury trial, Mazariegos was convicted

only of the conspiracy count.

       At the initial sentencing hearing, the court considered the sentencing


       1
          Several of the other gang members have been before this court on appeal. See United
States v. Flores, 572 F.3d 1254 (11th Cir. 2009), cert. denied, 130 S.Ct. 561 (2009), 130 S.Ct.
562 (2009); 130 S.Ct. 568 (2009); 2010 WL 58717 (Jan. 11, 2010) (No. 09-7849). This case
provides a more detailed description of Sur-13’s activities. See id. at 1259-61.

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objections raised by both sides and determined the applicable guidelines range to

be 70 to 87 months’ imprisonment. The court sentenced Mazariegos to 160

months’ imprisonment, finding that the guidelines range did not satisfy the

sentencing factors in 18 U.S.C. § 3553(a) in light of the violence involved in

Mazariegos’s activities and the need to protect the public. The statutory maximum

penalty for RICO violations is 20 years’ imprisonment. See 18 U.S.C. § 1963(a).

On direct appeal, this court affirmed the convictions, but remanded for

resentencing after concluding that the court improperly calculated the guidelines

range.

         On remand, the district court calculated the sentencing range to be 37 to 46

months’ imprisonment. The government moved for an upward variance, stating

that the 160-month sentence originally imposed was reasonable in light of the

violent nature of Mazariegos’s acts. Mazariegos argued that the sentencing range

was sufficient to achieve the § 3553(a) sentencing purposes. After listening to the

arguments, the court sentenced Mazariegos to 140 months’ imprisonment, finding

that the guideline range did not adequately consider the violent nature of the

conduct. The court considered Mazariegos’s rehabilitative efforts, particularly the

educational courses he had completed, but explained that the guidelines

calculations were “so far off” that they did not meet the § 3553(a) factors. The



                                            3
court concluded that a 140-month sentence was reasonable and “favorable to the

defendant under all the circumstances of the case.” Mazariegos now appeals,

arguing that the district court impermissibly relied on both uncharged conduct that

was not found by the jury and factors that were already accounted for in the

Sentencing Guidelines, resulting in an unreasonably severe sentence.

      We review the reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 40-41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007).

Our review is deferential, and the appellant bears the burden of establishing that

the sentence is unreasonable in light of the record and the sentencing factors set

forth in 18 U.S.C. § 3553(a). United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009).

      When reviewing for reasonableness, we must first “ensure that the district

court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552

U.S. at 51, 128 S.Ct. at 597. In general, the district court is not required to

explicitly address and analyze each of the § 3553(a) factors. United States v. Scott,

426 F.3d 1324, 1329 (11th Cir. 2005). The district court’s overt acknowledgment



                                            4
that it has considered the parties’ arguments and the § 3553(a) factors is sufficient

to demonstrate that it has adequately considered the pertinent sentencing factors.

Id. at 1330. Furthermore, in fashioning a reasonable sentence, a district court “may

consider relevant facts concerning a defendant’s background, character, and

conduct.” United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (quotation

omitted); see also 18 U.S.C. § 3661 (providing that “[n]o limitation shall be placed

on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence”). As long as a court

does not impose a sentence that exceeds the statutory maximum authorized by the

jury verdict, it may consider relevant uncharged or acquitted conduct that is proven

by a preponderance of the evidence. Faust, 456 F.3d at 1347-48. It is also

permissible for a district court to consider factors already accounted for in the

Guidelines in imposing an upward variance. United States v. Amedeo, 487 F.3d

823, 833-34 (11th Cir. 2007).

      Once we ensure that the sentencing decision was procedurally sound, we

must determine whether the sentence imposed is substantively reasonable based on

the factors enumerated in § 3553(a). Gall, 522 U.S. at 48-50, 128 S.Ct. at 596-97.

The statutory factors include: (1) the nature and circumstances of the offense;



                                           5
(2) the history and characteristics of the defendant; (3) the need to reflect the

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

punishment; (4) the need to afford adequate deterrence to criminal conduct; (5) the

need to protect the public from further crimes by the defendant; (6) the advisory

guidelines range; and (7) the need to avoid unwarranted sentencing disparities. 18

U.S.C. § 3553(a); see also United States v. Williams, 526 F.3d 1312, 1322 (11th

Cir. 2008). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court.” United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007) (quotation omitted).

      Moreover, when considering whether a sentence is substantively reasonable,

we compare the sentence imposed to the statutory maximum. United States v.

Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006). We will vacate a sentence only if

“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.”

Shaw, 560 F.3d at 1238 (quotation omitted). The fact that we might reasonably

conclude that a different sentence is appropriate is “insufficient to justify reversal

of the district court.” Williams, 526 F.3d at 1322 (quotation omitted).

      When a district court decides that a variance is in order, “it should explain



                                            6
why that variance is appropriate in a particular case with sufficient justifications.”

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.) (quotation omitted), cert.

denied, 129 S.Ct. 2847 (2009). “The justifications must be compelling enough to

support the degree of the variance and complete enough to allow meaningful

appellate review.” Id. (quotation omitted). The district court need not, however,

provide an extraordinary justification for a sentence outside the guidelines range.

Id. Although we may consider the extent of the deviation, we must “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Williams, 526 F.3d at 1322 (quotation omitted).

      Upon review, we conclude that Mazariegos has not shown that the district

court committed procedural error or abused its discretion in imposing a significant

upward variance from the advisory guidelines range. Mazariegos had a violent

criminal history including his activities with the SUR-13 gang. He was only

twenty-two years old at the time of his arrest, but by this age he had engaged in at

least two shootings, multiple robberies, and a carjacking, and he did so to increase

his position within the gang. The district court was permitted to consider other,

uncharged conduct when determining an appropriate and reasonable sentence.

Faust, 456 F.3d at 1347-48.

      Moreover, although the sentence imposed substantially exceeded the



                                           7
advisory guidelines range, it was well below the statutory maximum of 20 years’

imprisonment. On this record, we cannot conclude that the court abused its

discretion. Accordingly, Mazariegos’s sentence is affirmed.

      AFFIRMED.




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