              Case: 17-12738    Date Filed: 02/09/2018   Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-12738
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:17-cr-60017-JIC-1

UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                      versus

KRYSTAL ANTOINETTE BROWN,

                                                          Defendant - Appellant.

                          ________________________

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

                                (February 9, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Krystal Antoinette Brown appeals her 57-month sentence imposed after

pleading guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a).

On appeal, Brown argues that: (1) the district court erred in denying her motion for
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a downward departure; and (2) her sentence is procedurally and substantively

unreasonable because the district court failed to consider all of the factors in 18

U.S.C. § 3553(a), and her sentence is greater than necessary to achieve the goals

set forth in § 3553. After careful review, we affirm in part and dismiss in part.

      We lack jurisdiction to review the denial of a motion for a downward

departure where the district court understood its authority to depart, but chose not

to do so. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). We

review the sentence a district court imposes for “reasonableness,” which “merely

asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d

1179, 1189 (11th Cir. 2008) (quotation omitted).

      First, we conclude that we lack jurisdiction to review the denial of Brown’s

motion for a downward departure. As the record reveals, the district court noted at

the sentencing hearing that it had the authority to depart from a guideline range

sentence. The court then explained that it did not find Brown’s criminal history

category of IV to over-represent the seriousness of her criminal history, such that it

warranted a downward departure. This statement clearly indicates the district

court’s understanding of its authority to depart. Because the court acknowledged

its authority to depart downward when denying Brown’s motion but nevertheless

chose not to, we lack jurisdiction to review the denial of her motion. See Dudley,

463 F.3d at 1228. Accordingly, we dismiss her appeal as to that issue.


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       Next, we are unpersuaded by Brown’s claim that her sentence is

unreasonable. In reviewing sentences for reasonableness, we perform two steps.

Pugh, 515 F.3d at 1190. First, we “‘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 -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)).1 We do not require a district court to state on the record that it has

expressly considered each of the § 3553(a) factors; rather, we consider it sufficient

where the court acknowledged that it considered the defendant’s arguments and the

§ 3553(a) factors. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007).

       If we conclude that the district court did not procedurally err, we consider

the “substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,” based on the “totality of the circumstances.” Pugh, 515 F.3d

at 1190 (quotation omitted). We will not second guess the weight (or lack thereof)


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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that the court accorded to a given § 3553(a) factor, as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.

United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010). Similarly, we will not

remand for resentencing unless left with a definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by imposing a sentence outside of the range of reasonable sentences based upon

the facts of the case. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir.

2016). That we may reasonably conclude a different sentence is appropriate is

insufficient for reversal. Gall, 552 U.S. at 51. Moreover, a district court need not

specifically address every mitigating factor raised by the defendant in order for the

sentence to be substantively reasonable. Snipes, 611 F.3d at 873.

      However, a court may abuse its discretion if it (1) fails to consider relevant

factors that are due significant weight, (2) gives an improper or irrelevant factor

significant weight, or (3) commits a clear error of judgment by balancing a proper

factor unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)

(en banc). Also, a court’s unjustified reliance on any one § 3553(a) factor may be

a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,

1292 (11th Cir. 2006).

      The party challenging the sentence bears the burden to show it is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).


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While we do not automatically presume a sentence falling within the guideline

range to be reasonable, we ordinarily expect that sentence to be reasonable. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well

below the statutory maximum penalty is another indicator of reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Brown has not shown that her sentence is procedurally unreasonable. As the

record reflects, the district court referenced various § 3553(a) factors at her

sentencing hearing.     For instance, the district court acknowledged Brown’s

criminal history when it discussed her previous convictions for petit theft and

grand theft. The court also considered the seriousness of the offense when it noted

that Brown had graduated from retail theft to bank robbery. The district court then

referred to the guideline range when it explained that it chose to sentence Brown to

the lowest end of the guideline range due to her acceptance of responsibility. And

in any event, the district was not required to state on the record that it considered

each of the § 3553(a) factors; its statement that it “considered the statements of all

parties . . . as well as each of the factors set forth in 18 United States Code §

3553(a)” was more than sufficient. See Dorman, 488 F.3d at 938.

      Nor has Brown shown that her sentence is substantively unreasonable.

Indeed, the sentence was at the lowest end of the guideline range, which we

ordinarily expect to be reasonable. See Hunt, 526 F.3d at 746. The record also


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shows that the district court noted that Brown had had a difficult life, and balanced

this consideration with the seriousness of her offense. Brown argues that, because

she never served more than 120 days’ for her prior convictions, the guideline

sentence of 57 months’ is unreasonable.          However, Brown has eight prior

convictions for theft related offenses, and these did not deter her from committing

bank robbery.

      Brown concedes that a 57-month sentence for the instant offense

appropriately reflects the seriousness of the offense, but argues that a 37-month

sentence would accomplish the goals set forth in § 3553. Even if this Court

concluded that a 37-month sentence is appropriate, that conclusion alone is

insufficient for reversal. See Gall, 552 U.S. at 51. Further, the statutory maximum

for bank robbery in the instant case is 20 years. See 18 U.S.C. § 2113(a). Brown’s

sentence of 57 months’, which may be compared against the statutory maximum

for an indication of reasonableness, is less than a quarter of the 20-year statutory

maximum. See Gonzalez, 550 F.3d at 1324. In short, Brown’s 57-month sentence,

set at the lowest end of the guideline range, is reasonable because the statutory

factors in § 3553(a) support her sentence.       Accordingly, we affirm as to the

reasonableness of her sentence.

      DISMISSED IN PART; AFFIRMED IN PART.




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