                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-13259            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           MAY 17, 2012
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 1:10-cr-00467-TCB-GGB-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

CYNTHIA MATTHEWS,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (May 17, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

         Cynthia Matthews appeals her 60-month total sentence, imposed above the
applicable guideline range of 33 to 41 months, after pleading guilty to committing

bank fraud, in violation of 18 U.S.C. § 1344. For the reasons set forth below, we

affirm.

                                               I.

       The record shows that Matthews and other individuals executed a scheme to

defraud several banks by opening accounts, depositing stolen checks into those

accounts, and then withdrawing the funds. Matthews participated in this

enterprise by depositing numerous stolen checks into various bank accounts

opened by her accomplices. She did so on multiple occasions over a period of

several months, but withdrew only a fraction of the stolen money herself. The

total amount of intended loss from Matthews’s activities was calculated at

approximately $475,000, while the amount of actual loss suffered by the banks

reached nearly $330,000.1

       In compiling the presentence investigation report (“PSI”), the probation

officer described Matthews’s personal history and noted that she had provided

several conflicting or misleading statements to various officers after her arrest.

Specifically, she gave inconsistent statements regarding her place of birth, whether


       1
          Only some of Matthews’s criminal activity constituted the offense of conviction. The
rest qualified as “relevant conduct” to be considered only for sentencing purposes. See U.S.S.G.
§ 1B1.3.

                                               2
her parents were deceased, how many siblings she had, where she had lived

growing up, whether she had traveled outside the United States, and whether she

had been married. The probation officer also outlined Matthews’s criminal

history, which showed that she had been convicted on seven different occasions

for various crimes, including financial transaction fraud, theft, burglary, and

possession of illegal drugs with intent to distribute. With regard to several of

these crimes, Matthews had used false names or violated her probation. Moreover,

Matthews had a charge pending for identity fraud, and two charges pending for

drug offenses for which she had failed to appear in court.

      In calculating Matthews’s applicable guideline range, the probation officer

assigned her a base offense level of 7, pursuant to U.S.S.G. § 2B1.1(a)(1), and

added 14 levels under § 2B1.1(b)(1)(H) because the amount of intended loss

exceeded $400,000. Due to Matthews’s prior drug convictions, and because she

committed the current offense while on probation, she was placed into a criminal

history category of III. Ultimately, the district court gave her a 3-level reduction

for acceptance of responsibility, yielding a guideline range of 33 to 41 months in

prison.

      At the sentencing hearing, the district court determined that Matthews’s

guideline range did not provide for a sufficient punishment and, following the

                                          3
government’s recommendation, sentenced her to 60 months’ imprisonment. The

court explained that financial crimes such as Matthews’s were “particularly

troubling” because individuals who committed those crimes did so knowingly,

with “careful calculation and deliberation and malice aforethought.” The court

also stressed that Matthews’s offense involved nearly $500,000 in intended loss;

that she had made inconsistent statements to pretrial and probation officers; and

that she had a “very substantial” criminal history. On appeal, Matthews argues

that her sentence of 60 months was substantively unreasonable.

                                               II.

       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,

169 L.Ed.2d 445 (2007). “The review for substantive unreasonableness involves

examining the totality of the circumstances, including an inquiry into whether the

statutory factors in § 3553(a) support the sentence in question.” United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).2

       2
          Under § 3553(a), the sentencing court shall impose a sentence “sufficient, but not
greater than necessary” to comply with the purposes of sentencing set forth in § 3553(a)(2),
which include the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s crimes. 18 U.S.C. § 3553(a)(2). Other factors to be considered in imposing the
sentence include the nature and circumstances of the offense, the history and characteristics of
the defendant, the available sentences, the Guidelines’ policy and applicable range, the need to
avoid unwarranted sentence disparities, and the need to provide restitution to victims. Id.

                                                4
       If the district court determines that a sentence outside the guideline 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

omitted). However, we will only reverse due to a variance “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.”

United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted).

       In challenging the substantive reasonableness of her sentence, Matthews

makes several specific arguments, which we address in turn. First, she contends

that, by emphasizing the gravity of financial crimes in general, the district court

erroneously failed to focus on her individual characteristics. However, a district

court is permitted to consider the general seriousness of a statutory offense when

the defendant has been convicted of that offense. See United States v. Martin, 455

F.3d 1227, 1240 (11th Cir. 2006) (discussing the general negative characteristics

of white collar crimes in assessing the reasonableness of the defendant’s

sentence); United States v. Pugh, 515 F.3d 1179, 1195-99 (11th Cir. 2008)


§ 3553(a)(1), (3)-(7).

                                           5
(discussing the harms caused generally by child pornography in analyzing the

reasonableness of a sentence). Thus, we discern no error in this regard.

      Second, Matthews argues that her guideline range already accounted for the

seriousness of her offense, given that she received a 14-level enhancement based

on the amount of loss exceeding $400,000. While that may be so, the district court

could still consider the loss amount as a factor warranting a variance under

§ 3553(a). See United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010)

(stating that a district court can impose a variance based on factors that it had

already considered in applying a guideline enhancement), cert. denied, 131 S.Ct.

2166 (2011). Moreover, besides resulting in substantial monetary loss,

Matthews’s offense involved repeated deposits of stolen checks over a prolonged

period of time, and, as the district court noted, such conduct required “careful

calculation and deliberation.” The court could rightly view this as an aggravating

factor in determining the length of the sentence. See Martin, 455 F.3d at 1240

(“Because economic and fraud-based crimes are more rational, cool, and

calculated than sudden crimes of passion or opportunity, these crimes are prime

candidates for general deterrence.” (quotation and alteration omitted)).

      Third, Matthews argues that the inconsistencies in her post-arrest statements

were not made intentionally and, thus, did not warrant a sentence above the

                                           6
guideline range. However, given that persons generally have firm knowledge

about their basic personal histories, such as where they were born or grew up, the

district court could reasonably conclude that Matthews’s inconsistent statements

in this regard were made deliberately and not simply as a result of

misunderstanding or forgetfulness.

       Fourth, Matthews contends that the district court could have accounted for

her criminal history by imposing a guideline departure rather than a § 3553(a)

variance. Matthews’s criminal record is indeed substantial, involving seven

separate convictions and several charges for which she had failed to appear in

court, and this may well have warranted an upward departure under U.S.S.G.

§ 4A1.3. However, the court’s ability to depart upwards under the Guidelines did

not preclude it from imposing an upward variance instead. See Shaw, 560 F.3d at

1240 (affirming an upward variance under § 3553(a), even though the district

court had discretion to apply an upward departure under the Guidelines).

      Finally, Matthews asserts that the district court’s variance of 19 months

beyond the upper end of the guideline range resulted in an unwarranted sentencing

disparity. However, she points to no comparators “with similar records who have

been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6). An upward

variance by itself does not indicate an unwarranted sentencing disparity.

                                         7
      In sum, the district court did not commit a clear error of judgment in

determining that an above-guideline, 60-month sentence was appropriate for

Matthews under § 3553(a), given the seriousness of her offense, her mendacity,

and, most importantly, her substantial criminal history. See 18 U.S.C.

§ 3553(a)(1)-(2); Shaw, 560 F.3d at 1237-41 (upholding as reasonable a 120-

month sentence that significantly exceeded the guideline range of 30 to 37 months,

in large part due to the defendant’s extensive criminal history); see also United

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded

any given § 3553(a) factor is a matter committed to the sound discretion of the

district court.” (quotation omitted)). We also note that Matthews’s 5-year

sentence fell far below the statutory maximum of 30 years for each count. See 18

U.S.C. § 1344; Gonzalez, 550 F.3d at 1324 (concluding that a sentence was

reasonable in part because it was well below the statutory maximum). Because

Matthews’s sentence of 60 months was substantively reasonable, we affirm.

      AFFIRMED.




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