              Case: 11-15731   Date Filed: 11/20/2012   Page: 1 of 6

                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                      _____________________________

                               No. 11-15731
                           Non-Argument Calendar
                      _____________________________

                    D. C. Docket No. 1:11-cr-20476-CMA-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

     versus

JAVIER DE LA TORRE HERRERA,

                                                            Defendant-Appellant.

               _________________________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
               _________________________________________
                              (November 20, 2012)

Before TJOFLAT, KRAVITCH, and EDMONDSON, Circuit Judges.


PER CURIAM:
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       Javier De La Torre Herrera, who pleaded guilty to conspiracy to commit

bank larceny and bank larceny, in violation of 18 U.S.C. §§ 371 and 2113(b),

appeals his total 24-month sentence. On appeal, De La Torre Herrera argues that

the district court gave undue weight to the need to avoid a sentencing disparity

between his own sentence and that of his codefendants. No reversible error has

been shown; we affirm.

       We review a final sentence for procedural and substantive reasonableness.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence

might be procedurally unreasonable if the district court fails to explain adequately

the chosen sentence. Id. We evaluate the substantive reasonableness of a sentence

under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The party challenging the

reasonableness of the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both the record and the 18 U.S.C. § 3553(a) factors.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).1




   1
     Under section 3553(a), a district court should consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and educational needs of the defendant, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

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      “Sentences outside the guidelines are not presumed to be unreasonable, but

we may take the extent of any variance into our calculus.” United States v. Shaw,

560 F.3d 1230, 1237 (11th Cir. 2009). When the district court decides after

“serious consideration” that a variance is in order, the court is required to explain

adequately why that variance is appropriate in a particular case with sufficient

justifications. Id. (quotation omitted).

              Because of its institutional advantage in making sentence
      determinations, a district court has considerable discretion in deciding
      whether the [section] 3553(a) factors justify a variance and the extent of one
      that is appropriate. We must give its decision due deference. We may vacate
      a sentence because of the variance only if we are left with the definite and
      firm conviction that the district court committed a clear error of judgment in
      weighing the [section] 3553(a) factors by arriving at a sentence that lies
      outside the range of reasonable sentences dictated by the facts of the case.
      However, that we might reasonably have concluded that a different sentence
      was appropriate is insufficient to justify reversal.

Id. at 1238 (citations and quotations omitted).

      We conclude that De La Torre Herrera’s sentence is reasonable. Although

his 24-month sentence varied upward from the top of the advisory guidelines

range by 12 months, the sentence was well below the 10-year statutory maximum

he faced. See 18 U.S.C. § 2113(b); United States v. Valnor, 451 F.3d 744, 751-52

(11th Cir. 2006) (affirming an upward variance and observing that the ultimate

sentence was appreciably below the statutory maximum).



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       At the sentencing hearing, De La Torre Herrera pointed to the sentence

reductions awarded to his codefendants for their substantial assistance; and then

he argued in favor of a sentence at the low-end of the 6 to 12 month guideline

range. The district court responded that De La Torre Herrera “could not start at

consideration of a six-month sentence at all because to do that was to, effectively,

nullify any reward for cooperation given to the coodefendants.”

       Here, the district court considered the issue of sentencing disparity in direct

response to De La Torre Herrera’s insistence that the court compare his sentencing

range to his codefendants’ sentences.2 More important, the court expressly

engaged in a comparison of De La Torre Herrera’s sentencing range with his

codefendants’ sentences -- not to justify an upward variance to his sentence -- but

instead to reject his arguments for a sentence at the low-end of the applicable

guideline range. De La Torre Herrera’s two codefendants received five-month

sentences, in part due to the government filing a motion for a downward departure

based on substantial assistance under U.S.S.G. § 5K1.1; no such recommendation

was made for De La Torre Herrera. The court also highlighted that the applicable

   2
     The government argues that we should review De La Torre Herrera’s argument that the
district court gave undue weight to the need to avoid sentencing disparities for plain error
because he did not raise this argument in district court. It is unnecessary to address this issue
because De La Torre Herrera failed to show that the district court committed an error, plain or
otherwise, in considering the disparity between De La Torre Herrera’s and his codefendants’
sentences.

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guideline range for the instant offense -- 6 to 12 months’ imprisonment -- was

relatively low in the light of the amount of money taken from the bank, $30,000.

       The district court further explained that it was “looking at disparity in

sentencing, but I’m also looking at relative culpability.” The court determined that

De La Torre Herrera was more culpable than his codefendants for the offense

conduct because he came up with the idea to rob the bank and convinced his

girlfriend (an employee at the bank) to cooperate in his plan.3 The court

specifically noted that it was unlikely that the bank would ever recover the money

taken by De La Torre Herrera because he already had spent his $15,000 share.

       The district court explained its decision to apply an upward variance, citing

its reliance on several of the section 3553(a) factors: the history and characteristics

of the defendant, the nature and circumstances of the offense (including De La

Torre Herrera’s relative culpability in the offense) and the need for deterrence.

See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (“[t]he weight to

be accorded any given [section] 3553(a) factor is a matter committed to the sound

discretion of the district court, and we will not substitute our judgment in


   3
     De La Torre Herrera cites to cases from other circuits about the application of a leadership
enhancement in calculating the guideline range to argue that there was no evidence that he
exercised decision-making authority over his codefendants. The district court, however, never
imposed a leadership role enhancement, and De La Torre Herrera failed to establish that the
district court erred in concluding that he was more culpable than his codefendants.

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weighing the relevant factors.”) (quotation and citation omitted). As a result, De

La Torre Herrera failed to demonstrate that the district court unduely focused on

the sentencing disparity between De La Torre Herrera and his codefendants in

imposing an above-guideline sentence.

      Based on the evidence in the record, we conclude that De La Torre

Herrera’s sentence was reasonable and that the district court adequately justified

its upwardly variant sentence. Although De La Torre Herrera disagrees with the

district court’s assessment of several of the § 3553(a) factors, we -- on this record -

- cannot say that the court’s careful consideration of the factors and its conclusion

were unreasonable.

      AFFIRMED.




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