           Case: 19-10379   Date Filed: 10/09/2019   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10379
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:18-cr-00019-PGB-KRS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

KENDAL LARRY MITCHELL,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 9, 2019)

Before NEWSOM, BRANCH and GRANT, Circuit Judges.

PER CURIAM:
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      Kendal Mitchell pleaded guilty to one count of possessing 15 or more

counterfeit credit cards, in violation of 18 U.S.C. § 1029(a)(3). Although his

recommended Sentencing Guidelines range was 10–16 months’ imprisonment, the

district court varied upwards and imposed a 30-month sentence. Mitchell argues

on appeal that his sentence is procedurally unreasonable because the district court

failed to explain why a sentence within the Guidelines range was inadequate and

that it is substantively unreasonable because the district court’s justification for

varying upwards was based solely on his criminal history and was, therefore,

already accounted for by the Sentencing Guidelines. Finding no abuse of

discretion, we affirm.

                                           I

                                           A

      After Mitchell attempted to use a fake credit card at Kres Chophouse in

Orlando, Florida, the restaurant management called the Orlando Police Department

to report the fraudulent purchase. The restaurant’s manager told OPD officers that

Mitchell had been to the restaurant before and that the staff had encountered issues

getting his credit cards to process—once, for example, employees had to swipe

multiple cards to find one that worked. According to the manager, Mitchell and an

accomplice, Christian Dior Bob, incurred around $600 in fraudulent charges at the

restaurant.


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      OPD spoke with Mitchell at the restaurant—he told them his address, and

officers later obtained a warrant to search the premises. There, they found a

Bluetooth credit card skimmer, a credit card embosser, a credit card encoder, and

more than 200 suspected counterfeit credit cards—mostly in Mitchell’s and Bob’s

names—as well as gift cards, MDMA pills, marijuana, and a large amount of cash.

Of the 77 cards with Mitchell’s name embossed on them, 58 were counterfeit.

Notably, in addition to the paraphernalia found, OPD also recovered various lists

of victims’ names and personal information—including their credit card and social

security numbers.

                                          B

      Mitchell and Bob were charged with one count of possessing 15 or more

counterfeit devices, in violation of 18 U.S.C. § 1029(a)(3) and (c)(1)(A)(i), and one

count of possessing device-making equipment, in violation of 18 U.S.C. §

1029(a)(4) and (c)(1)(A)(ii). Mitchell pleaded guilty to the first count—when

asked what he planned to do with the counterfeit cards, he testified that he was

going to use them for “partying and stuff like that.” Mitchell’s criminal history

began with offenses like trespass and resisting arrest but later escalated to fraud.

Before the restaurant incident, he participated in a fraud scheme involving

timeshare properties, for which he pleaded guilty and was sentenced to 60-months’

probation—he subsequently violated the terms of his probation. While on pretrial


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release for the offense at issue here, he again committed credit card fraud—this

time, he checked into a hotel with counterfeit cards. This criminal conduct—along

with persistent marijuana use—violated the terms of his pretrial release.

      Mitchell’s recommended Sentencing Guidelines range was 10–16 months’

imprisonment, with a maximum possible sentence of 120 months. The district

court, however, found that the Guidelines range did not adequately reflect the

seriousness of Mitchell’s conduct. Specifically, the district court noted that

Mitchell’s criminal history showed a pattern of escalating fraud, that his

motivations for committing fraud were frivolous and self-serving, that his crime

involved numerous victims’ personal information, and that previous punishments

had not deterred him from violating the terms of his probation and pretrial

release—or, for that matter, from committing more fraud-related crimes. The

court, therefore, varied upwards from the Guidelines range, sentencing Mitchell to

30 months’ imprisonment—nearly double the high-end of the Guidelines range,

but far below the maximum 120-month sentence.

      Mitchell now appeals his sentence, arguing that it is procedurally and

substantively unreasonable. He claims that the district court inadequately

explained why the Guidelines range was insufficient and that the variance was

improperly based solely on his criminal history, which was already reflected in the

Guidelines range.


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                                          II

      We review the reasonableness of a sentence “under a deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). A sentence is

procedurally unreasonable if the district court “fail[s] to adequately explain [its]

chosen sentence.” Id. at 51. “The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356 (2007) (citation omitted). The district court need

not discuss on the record each 18 U.S.C. § 3553(a) factor or explain in detail the

parties’ arguments; rather, it need only acknowledge that it considered the

defendant’s arguments and the § 3553(a) factors. United States v. Sarras, 575 F.3d

1191, 1219 (11th Cir. 2009). We have, however, found procedural error when a

district court “failed to give any explanation of its reasons for imposing a

sentence,” providing “no reasoning or indication of what facts justified . . . a

significant variance from the advisory Guidelines range.” United States v. Livesay,

525 F.3d 1081, 1093 (11th Cir. 2008) (emphasis added).

      The district court’s sentence was not procedurally unreasonable because it

sufficiently explained that it was varying upwards due to Mitchell’s escalating

pattern of criminal history—including fraudulent activities before and after his


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arrest for the offense at issue here—his repeated noncompliance with probation

and pretrial release conditions, his frivolous motivations, and the significant

number of fraudulent credit cards and sensitive personal information involved in

this case.

                                          III

      We review the substantive reasonableness of a sentence for an abuse of

discretion. Gall, 552 U.S. at 51. We examine whether a sentence is substantively

reasonable by considering the totality of the circumstances, including the extent of

any variance. Id. We “may not apply a presumption of unreasonableness” just

because a sentence falls outside the Guidelines range—rather, we must “consider

the extent of the deviation” while “giv[ing] due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Id. The fact that a sentence is well below the statutory maximum penalty can be an

indicator of reasonableness. See, e.g., United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (holding that the sentence was reasonable, in part, because it

was well below the statutory maximum). We reverse only when “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




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States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation and

citations omitted).

      The weight given to each § 3553(a) factor is within the district court’s

“sound discretion.” United States v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir.

2013) (quotation omitted). A district court can abuse its discretion when it (1) fails

to consider “relevant factors that were due significant weight, (2) gives significant

weight to an improper or irrelevant factor, or (3) commits a clear error of judgment

in considering the proper factors.” Id. at 1326–27. Although a court’s “unjustified

reliance on a single factor” could be symptomatic of unreasonableness, “significant

reliance on a single factor does not necessarily render a sentence unreasonable.”

Id. at 1327 (citations omitted). When considering the § 3553(a) factors, a district

court is not prevented from also considering previous criminal conduct

encompassed by a sentencing enhancement. See, e.g., United States v. Turner, 626

F.3d 566, 570–71, 573–74 (11th Cir. 2010).

      When the district court decides that a variance is appropriate based on the §

3553(a) factors, it should explain that variance with “sufficient justifications.”

Gall, 552 U.S. at 46. The court’s justifications “must be compelling enough to

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

appellate review,” but “an extraordinary justification” is not required. United




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States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks and

citation omitted).

      Mitchell’s 30-month sentence is not substantively unreasonable—the district

court was permitted to consider Mitchell’s criminal history and offense conduct in

deciding to vary above the Guidelines range, even though such factors were

already accounted for in the Guidelines calculation. Additionally, while it was

permissible for the district court to give Mitchell’s criminal history significant

weight, the district court also identified other reasons justifying the upward

variance, such as Mitchell’s frivolous motive for committing fraud, the number of

fraudulent credit cards and the sensitive personal information involved in the case,

the minimal deterrent effect previous penalties had on Mitchell’s criminal activity,

his repeated probation and pretrial release violations, and a need to protect society

from further fraudulent activity. We find no abuse of discretion here.

      AFFIRMED.




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