            Case: 13-11828    Date Filed: 12/18/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11828
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:12-cr-00004-DHB-WLB-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

WHITNEY T. WITTMER,
a.k.a. Tanya,

                                                           Defendant-Appellant.

                       ________________________

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

                             (December 18, 2013)

Before HULL, MARCUS, and FAY, Circuit Judges.

PER CURIAM:
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      Whitney T. Wittmer appeals her 24-month sentence, imposed above the

applicable Sentencing Guidelines range of 10 to 16 months, after pleading guilty to

one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). We

affirm.

                                          I.

      From approximately September 2011 to April 2012, Wittmer and five other

individuals illegally engaged in the business of selling firearms without a license.

Wittmer personally participated in the sale of two firearms. On December 15,

2011, Wittmer provided a rifle to a codefendant, Terryon Norris, who sold the rifle

to confidential informants. Wittmer’s three-year-old son and newborn daughter

were present during the transaction. On another occasion, before April 26, 2012,

Wittmer stole a firearm from Amber Meeks and sold that firearm to Norris for $75.

      A federal grand jury subsequently charged Wittmer with conspiracy to

engage in the business of dealing in firearms without a license, in violation of 18

U.S.C. §§ 371 and 922(a)(1), and possession of a stolen firearm, in violation of 18

U.S.C. § 922(j). Following her initial appearance, Wittmer was granted a $20,000

unsecured bond. She later pled guilty to possession of a stolen firearm, pursuant to

a written plea agreement.

      While on pretrial release, Wittmer violated several of her bond conditions.

She changed residences without permission on multiple occasions, and she tested


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positive for marijuana and cocaine use. Wittmer also avoided her presentence

interview several times, and she lied to probation officers about having

employment, taking drugs, and being on jury duty.

      At sentencing, the district judge determined an upward variance was

warranted, based on Wittmer’s failure to understand the seriousness of the offense,

her multiple lies to probation officers, the need to afford adequate deterrence, and

the need to provide her with rehabilitation. The judge imposed a sentence of 24

months of imprisonment, above the applicable Guidelines range of 10 to 16

months.

                                         II.

      On appeal, Wittmer argues her 24-month sentence is unreasonable. She

contends the district judge did not consider her arguments in mitigation, but

considered unknown impermissible factors and factors already considered in the

Sentencing Guidelines. Wittmer further argues her 24-month sentence creates a

sentencing disparity between similarly situated defendants and is longer than

necessary to achieve the goals of sentencing. Finally, she asserts the court did not

provide adequate reasons for the upward variance.

      We review the reasonableness of a sentence deferentially for abuse of

discretion. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed.

2d 445 (2007). This “deferential abuse-of-discretion standard” applies regardless


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of whether the sentence is “inside, just outside, or significantly outside the

Guidelines range.” Id. at 41, 128 S. Ct. at 591. In evaluating a sentence for

reasonableness, we examine the sentence in light of the “totality of the

circumstances, including the extent of any variance from the Guidelines range.”

Id. at 51, 128 S. Ct. at 597.

       The district judge must impose sentences that are “sufficient, but not greater

than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),

including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, protect the

public from the defendant’s future criminal conduct, and provide the defendant

with needed vocational training or medical care. See 18 U.S.C. § 3553(a)(2). 1 In

imposing a particular sentence, the judge also must consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable Guidelines range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7).

       1
          A district judge, however, “may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v.
United States, 564 U.S. ___, 131 S. Ct. 2382, 2393, 180 L. Ed. 2d 357 (2011). Wittmer does not
argue the judge imposed or lengthened her sentence for the sole purpose of providing her with
treatment or vocational training; consequently, she has abandoned that argument. See United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (recognizing that an appellant
abandons a claim not raised plainly and prominently in the initial brief).
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      When considering the § 3553(a) factors, the district judge need not discuss

each of them individually. United States v. Talley, 431 F.3d 784, 786 (11th Cir.

2005). Rather, “an acknowledgment by the district court that it has considered the

defendant’s arguments and the factors in section 3553(a) is sufficient.” Id. In

addition, 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) (citation and internal quotation marks omitted).

      A district judge, who sentences outside the Guidelines range, should explain

why the variance is appropriate in the particular case. United States v. Shaw, 560

F.3d 1230, 1238 (11th Cir. 2009). While extraordinary justification is not required,

Gall, 552 U.S. at 47, 128 S. Ct. at 595, the “justification for the variance 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) (citation and internal

quotation marks omitted). In imposing a variance, a district judge may consider

conduct a probation officer had considered in calculating the defendant’s

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

2008) (holding that, although defendant’s previous offenses were part of the

Guidelines calculation, those offenses fit squarely into the history and

characteristics factor of § 3553(a)(1) and properly could be considered by the

judge); see also United States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir. 2007)


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(concluding it was not error for the district judge to rely on factors in imposing a

variance that had been considered in imposing an enhancement).

      We will “vacate the sentence if, but only if, we are 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.” Irey, 612 F.3d at 1190

(citation and internal quotation marks omitted). We “may not presume that a

sentence outside the guidelines is unreasonable and 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. at 1187 (citation and internal quotation marks omitted). The

burden of establishing the sentence is unreasonable, considering both the record

and the § 3553(a) factors, is on the party challenging the sentence. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      Wittmer has not met her burden of establishing her 24-month sentence is

unreasonable. Id. Contrary to her argument, the district judge did not consider any

impermissible factors on which she relies. Nothing in the record suggests the

judge considered unknown facts; the judge based Wittmer’s sentence on the

presentence investigation report. In addition, the judge considered Wittmer’s

arguments in mitigation and noted they were “appealing.” The judge was

permitted to rely on factors already considered by the Sentencing Guidelines when


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imposing the upward variance, such as Wittmer’s bond violations. Williams, 526

F.3d at 1324.

      The district judge also provided adequate reasons for imposing the upward

variance and recognized Wittmer had “thumbed her nose at the processes of the

court,” had lied to probation officers, and had a total disregard for the rules of

society. The judge determined a variance was required to provide an appropriate

sentence, to provide rehabilitation, and to “make any sort of example for this

conduct.” Finally, Wittmer has not identified a similarly situated defendant who

was given a lesser sentence; therefore, her sentencing-disparity argument fails.

Accordingly, Wittmer’s 24-month sentence is reasonable.

      AFFIRMED.




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