           Case: 16-10797   Date Filed: 09/08/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10797
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:15-cr-20781-FAM-1



UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                    versus

AHMED FERNANDEZ,

                                                     Defendant-Appellant.

                       ________________________

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

                            (September 8, 2016)

Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.

PER CURIAM:
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       Ahmed Fernandez appeals his 60-month sentence, imposed above the

Sentencing Guidelines range, after pleading guilty to breaking and entering carrier

facilities with intent to commit larceny in violation of 18 U.S.C. § 2117. He raises

two issues on appeal, which we address in turn. After review,1 we affirm

Fernandez’s sentence.

                                      I. DISCUSSION

A. Procedural Reasonableness

       Fernandez first contends his sentence is procedurally unreasonable because

the district court failed to explain why it imposed a sentence above the Sentencing

Guidelines recommendation. See Gall v. United States, 552 U.S. 38, 51 (2007)

(“[The appellate court] must ensure that the district court committed no significant

procedural error, such as . . . failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.”).

       Fernandez has the burden of demonstrating his sentence was unreasonable.

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). He has not met it.

The district court adequately explained its reasons for choosing a sentence outside

the range set by the Guidelines, taking into due account the considerations

presented by § 3553(a). It explicitly invoked § 3553(a) and stated that Fernandez’s


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         We review the reasonableness of a sentence under the deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Irey, 612 F.3d 1160,
1188-89 (11th Cir. 2010) (en banc).
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past criminality and his recidivism, the need to promote respect for the law, and the

need to protect the public motivated it to increase the sentence. See 18 U.S.C.

§ 3553(a)(2). The court dwelt at length on Fernandez’s criminal record and

discussed in detail its view that the Guidelines failed to take into account the

number and gravity of Fernandez’s past crimes. See 18 U.S.C. § 3553(a)(1); see

also United States v. Williams, 526 F.3d 1312, 1322-23 (11th Cir. 2008) (holding a

sentence to be reasonable where the sentencing court explained why it attached

great weight to one § 3553(a) factor). Further, it acknowledged Fernandez’s

acceptance of responsibility and guilty plea and considered them as possible

mitigating factors. See Rita v. United States, 551 U.S. 338, 356 (2007) (“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.”). The record belies Fernandez’s suggestion the

sentencing court’s explanation was inadequate. The court’s thorough discussion of

its reasons for its upward variance provided ample opportunity for appellate review

and Fernandez’s sentence is procedurally reasonable. Gall, 552 U.S. at 50 (“[The

district court] must adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing.”).




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B. Substantive Reasonableness

      Second, Fernandez asserts his sentence is substantively unreasonable in light

of the applicable 18 U.S.C. § 3553(a) factors. We examine whether the sentence

was substantively reasonable bearing in mind the totality of the circumstances,

including the extent of any variance. See Gall, 552 U.S. at 51. A court abuses its

discretion when it (1) fails to consider relevant factors that were due significant

weight, (2) gives an improper or irrelevant factor significant weight, or (3)

commits a clear error of judgment by balancing the proper factors unreasonably.

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The district

court did not err in any of these respects.

      Fernandez has failed show his sentence is substantively unreasonable in light

of the record and the § 3553(a) factors, as it was his burden to do. See Tome, 611

F.3d at 1378. The district court reviewed Fernandez’s past and concurrent criminal

conduct, including his repeated DUIs, driver’s license violations, sexual battery,

strong-arm robberies and other thefts, and his pending state court charges. The

court expressly considered the components of § 3553(a). It then varied

Fernandez’s Guidelines-recommended sentence upward in order to, in the court’s

words, “protect the public from [Fernandez’s] future crimes” and to “provide just

punishment for an offense one after the other.” Cf. 18 U.S.C. § 3553(a)(2)(A), (C).

Although district court gave comparatively deeper scrutiny to Fernandez’s criminal


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record, it was free to attach great weight to any single § 3553 factor, even to the

point of significant reliance on it. Gall, 552 U.S. at 57 (approving of district

court’s heavy emphasis on the defendant’s efforts at rehabilitation); United States

v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013) (“[S]ignificant reliance on one

factor does not necessarily render a sentence unreasonable.”); see also United

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

specific § 3553(a) factor is committed to the sound discretion of the district

court . . . .”) (citations and internal quotations omitted).

      That Fernandez’s sentence was set outside the Guidelines range entails no

presumption of unreasonableness. Irizarry v. United States, 553 U.S. 708, 714

(2008). Further, the 60-month sentence was well below the statutory maximum of

10 years, which is another indication it was reasonable. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding the sentence was

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

      In light of the above, the record does not leave a “definite and firm

conviction that the district court committed a clear error of judgment” in weighing

the § 3553(a) factors. Irey, 612 F.3d at 1190.

                                   II. CONCLUSION

      Accordingly, we affirm Fernandez’s sentence.

      AFFIRMED.


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