            Case: 15-11865   Date Filed: 12/09/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-11865
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:14-cr-20889-FAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

MELVIN RODRIGUEZ RIVERA,

                                                          Defendant-Appellant.

                        ________________________

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

                             (December 9, 2015)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Melvin Rodriguez Rivera appeals his 30-month upward variance sentence,
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which the district court imposed after he pleaded guilty to one count of

impersonating a federal officer, in violation of 18 U.S.C. § 912. He contends that

his sentence is both procedurally and substantively unreasonable.

      We review the reasonableness of a sentence only for abuse of discretion.

Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We first

“ensure that the district court committed no significant procedural error,” such as

improperly calculating the guidelines range, basing the sentence on clearly

erroneous facts, or inadequately explaining the chosen sentence. Id. We then

examine whether the sentence was substantively reasonable in light of the totality

of the circumstances. Id.

      At sentencing the district court determined that Rodriguez Rivera’s base

offense level was six and criminal history category was IV. After deducting two

levels for acceptance of responsibility, the court correctly calculated his guidelines

range as two to eight months. The court decided, however, that the guidelines

range did not adequately account for Rodriguez Rivera’s criminal history, which

included at least five other offenses involving the impersonation of lawyers and

government officials to swindle victims out of their money. It concluded that an

upward variance was appropriate in light of Rodriguez Rivera’s recidivism and a

number of the other § 3553(a) factors, including the need to promote respect for

the law, to deter future criminal conduct, and to protect the public. The court


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sentenced Rodriguez Rivera to 30 months — a sentence above his guidelines range

but below the three year statutory maximum penalty for his conviction. See 18

U.S.C. § 912.

       That sentence is not procedurally or substantively unreasonable. The district

court correctly calculated Rodriguez Rivera’s guidelines range and explained in

detail why it decided to vary from that range. 1 See Gall, 552 U.S. at 51, 128 S. Ct.

at 597. When the district court varies from the guidelines, its justification “must be

sufficiently compelling to support the degree of the variance.” United States v.

Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en banc). A sentence outside the

guidelines range is not presumptively unreasonable, however, and 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.” Id. Rodriguez Rivera’s repeated recidivism was

a compelling justification for an upward variance, particularly when considered

alongside the other § 3553(a) factors. See United States v. Shaw, 560 F.3d 1230,

1240–41 (11th Cir. 2009) (finding an upward variance based on the defendant’s

recidivism to be reasonable); United States v. Clay, 483 F.3d 739, 745 (11th Cir.

2007) (“Both the Guidelines calculations and the sentencing factors of section



       1
          Rodriguez Rivera contends that the district court procedurally erred when it failed to
follow the procedure set out by the sentencing guidelines for departures based on the inadequacy
of a defendant’s criminal history score. See U.S.S.G. § 4A1.3(4)(A). But the district court did
not depart from the guidelines; it varied upward based on the § 3553(a) factors. See United
States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).
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3553(a) require a judge to consider characteristics of the defendant and the offense

that make it more or less likely that the defendant will reoffend.”).

      Ultimately, Rodriguez Rivera bears the burden of establishing that the

district court sentenced him unreasonably in light of the record and the factors set

forth in 18 U.S.C. § 3553(a). United States v. Tome, 611 F.3d 1371, 1378 (11th

Cir. 2010). He has not carried that burden.

      AFFIRMED.




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