                    Case: 12-10550          Date Filed: 09/28/2012   Page: 1 of 5

                                                                         [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10550
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 3:10-cr-00297-TJC-JBT-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus

HENRY MANNS,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (September 28, 2012)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Henry Manns appeals his 168-month sentence, an upward variance from the
              Case: 12-10550     Date Filed: 09/28/2012   Page: 2 of 5

10-year statutory minimum, imposed after he pleaded guilty to attempted

possession with intent to distribute 500 or more grams of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. On appeal, Manns argues that his

sentence is substantively unreasonable because the district court failed to consider

and properly weigh the 18 U.S.C. § 3553(a) factors as well as the policies

contained in the sentencing guidelines, and focused too much on his significant

criminal history.

      The guideline range based on Manns’s offense level and criminal history

category is 57–71 months. But the statutory minimum for his offense is 120

months, or 10 years, and the maximum is life imprisonment. Upon consideration

of the § 3553(a) factors, the district court applied an upward variance, bringing the

total sentence to 168 months, or 14 years.

      We review the substantive reasonableness of sentences under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). “We may set aside a sentence only if we determine, after giving

a full measure of deference to the sentencing judge, that the sentence imposed

truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir.

2010) (en banc), cert denied, 131 S. Ct. 1813. “The fact that the appellate court

might reasonably have concluded that a different sentence was appropriate is

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insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.

Ct. at 597.

      A sentence, such as this, that is outside of the guideline range is not

presumptively unreasonable. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Instead, the

party appealing the sentence must prove that the sentence is unreasonable in light

of the record and the § 3553(a) factors. “[W]e are to vacate the sentence if, but

only 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.” Irey, 612 F.3d at 1190 (quotation marks omitted).

      Under § 3553(a), the district court must impose a sentence “sufficient, but

not greater than necessary,” to reflect the seriousness of the offense, promote

respect for the law, provide just punishment, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. See 18 U.S.C.

§ 3553(a)(1)–(2). The court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, and the need to avoid unwarranted sentencing disparities.

§ 3553(a)(1), (3)–(7). After reviewing the record here, we conclude that Manns

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has not shown that his sentence resulted from an unreasonable application of the

§ 3553(a) factors.

      Manns contends that the upward variance is substantively unreasonable

because the district court put too much emphasis on his criminal history and the

nature of the offense, which had already resulted in an increase of the statutory

minimum under 21 U.S.C. § 841(b)(1)(B) and could have been considered under

§ 4A1.3 of the sentencing guidelines. Criminal history and the nature of the

offense are each factors expressly made part of the § 3553(a) analysis. See §

3553(a)(1)–(2)(A). As long as the final sentence is reasonable, “a district court

can rely on factors in imposing a variance that it had already considered in

imposing an enhancement . . . and there is no requirement that a district court must

impose an enhancement before granting a variance.” United States v. Rodriguez,

628 F.3d 1258, 1264 (11th Cir. 2010) (internal citations omitted).

      The district court also indicated that it relied on other § 3553(a) factors.

The court explained that a longer sentence was necessary to promote respect for

the law, protect the public, and afford adequate specific deterrence insofar that this

was the second time that Manns had violated the terms of his supervised release.

The court also considered whether there would be an unwarranted sentence

disparity among defendants with similar records and determined that any disparity

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would be warranted because Manns was not a typical offender and this was not

just a “small-time drug involvement.” The sentencing guidelines and policy

statements of the Sentencing Commission were also factors in the district court’s

analysis. Finally, the district court considered the mitigating factors presented by

Manns at sentencing in declining to give “even a more significant sentence.”

      In light of the record, Manns’s 168-month sentence is reasonable and the

district court did not abuse its discretion. Accordingly, we affirm.

AFFIRMED.




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