                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                           AUGUST 13, 2010
                               No. 10-10059                  JOHN LEY
                           Non-Argument Calendar               CLERK
                         ________________________

                 D.C. Docket No. 3:09-cr-00198-TJC-TEM-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ROBERT CHANNELLE,

                                                          Defendant-Appellant.


                         ________________________

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

                              (August 13, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

     After pleading guilty, Defendant-Appellant Robert Channelle appeals his 87-
month sentence for conspiracy to commit bank fraud, in violation of 18 U.S.C. §

1349. After review, we affirm.

                                 I. BACKGROUND

A.    Offense Conduct

      Channelle, with three co-conspirators, operated a split-deposit check-cashing

scheme. One of Channelle’s co-conspirators, Jasper Shields, received fraudulent

checks and fraudulent identification cards from an unknown source and gave those

materials to Channelle. Channelle then proceeded to various branch offices of

Wachovia Bank in Duval and Clay Counties, Florida, presented the fraudulent

checks and identification, and split-deposited the checks by depositing a portion of

the funds into a real bank account and obtaining the balance of the check amount

as cash. Channelle often dressed to impersonate a professional during these

fraudulent transactions in an effort to deter suspicions. Channelle would then

divide the proceeds of these transactions with Shields and the unknown source of

fraudulent checks. The presentence investigation report (“PSI”) lists 25 separate

fraudulent transactions from June 2006 to April 2007, through which Channelle

obtained, directly or indirectly, $86,437.67.

      On April 18, 2007, Channelle was arrested and charged by Florida law

enforcement authorities after attempting to cash a counterfeit check at a Wachovia



                                           2
Bank branch in Green Cove Springs, Florida, which was part of the conduct

underlying Channelle’s subsequent federal conspiracy charge. Channelle pled

guilty to this state offense and was sentenced to 20 months’ incarceration by the

Clay County Circuit Court. On October 8, 2008, he was released to the Duval

County Circuit Court for a separate prosecution for an October 4, 2006 fraudulent

check cashing, which also was part of the conduct underlying Channelle’s federal

conspiracy charge. Channelle pled guilty to this offense too and was sentenced by

the Duval County Circuit Court to 30 months’ imprisonment, with credit for 19

months’ time already served. In July 2009, Channelle was released from state

custody, having served approximately 27 months of imprisonment for these two

state convictions.

B.    Federal Charges and Guilty Plea

      On July 15, 2009, a federal grand jury indicted Channelle on one count of

conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349. Counts 2-26 of

the indictment charged Channelle with 25 substantive bank-fraud counts

underlying the conspiracy charge in Count 1, in violation of 18 U.S.C. § 1344.

      Channelle agreed to plead guilty to Count 1 only. In exchange, the

government agreed to dismiss Counts 2-26. In his plea agreement, Channelle

agreed that the district court had jurisdiction to impose any sentence up to the



                                           3
statutory maximum sentence and waived the right to appeal his sentence on any

ground, “including the ground that the [District] Court erred in determining the

applicable guidelines range pursuant to the United States Sentencing Guidelines,”

except if the sentence (1) exceeded the applicable guidelines range “as determined

by the [District] Court”; (2) exceeded the statutory maximum; or (3) violated the

Eighth Amendment; and (4) if the government appealed the sentence. (emphasis in

original) At his plea hearing, Channelle confirmed his intention to waive the right

to appeal his sentence, except for the four specific grounds listed in his plea

agreement.

C.    Sentencing

      The PSI recommended a base offense level of 7 pursuant to U.S.S.G. §

2B1.1(a)(1) and a total offense level of 16. The PSI also described Channelle’s 40-

year criminal history, listing his 26 separate state-law convictions and 2 withheld

adjudications ranging from 1967, when Channelle was 18, to the time of his

current sentencing in 2009. Channelle began cashing stolen checks in 1975, when

he was 26. Many of Channelle’s subsequent convictions involved fraud, theft, and

forgery. Beginning in 1985, Channelle was sentenced to prison time for his fraud

crimes – one year in 1985, another year in 1986, two years in 1987, three years in

1988, and ten years in 1989. In 1991, while released on parole, Channelle again



                                           4
cashed stolen checks at banks in Florida and received an additional two years of

incarceration. In 1993, following his release, he was convicted of possession of

heroin and sentenced to five years’ incarceration. In 2000, at age 50, Channelle

again pled guilty to numerous fraud and forgery offenses and was sentenced to 5

years’ imprisonment, which was enforced as 3 years of probation. His probation

was revoked in 2002 after he again committed forgery offenses and failed to

comply with the requirements of a drug-counseling program. Channelle was

released in 2004.

       The PSI also noted that Channelle considers himself to be addicted to heroin.

He first used heroin in 1970 at age 21 and has used it regularly since then. He

reported that his 40-year criminal history is directly linked to obtaining the funds

necessary to support his heroin addiction.

       Based on his extensive criminal history, the PSI listed Channelle’s total

criminal history points as 20 and his criminal history category as VI.1 The

probation officer calculated Channelle’s advisory guidelines range, based on his

total offense level of 16 and criminal history category of VI, as 46-57 months’



       1
         Once a defendant has 13 or more criminal history points, his criminal history category is
VI, the highest category. U.S.S.G. § Ch. 5 Pt. A (Table). Channelle received a criminal history
score of 18 based on his previous state convictions and a two-point increase in his criminal
history score because he committed the federal conspiracy offense less than two years following
his release from state custody on August 1, 2004. U.S.S.G. § 4A1.1(a)-(c), (e).

                                                5
imprisonment.2

       The PSI noted some factors that may warrant departure, both upward and

downward, from the advisory guidelines range. First, because Channelle

completed 27 months of state imprisonment for related offenses under state law

that were not credited towards his federal imprisonment, a downward departure

may be warranted pursuant to U.S.S.G. § 5K2.23. Second, an upward departure

may be warranted because the guidelines calculation may have understated the

seriousness of his conspiracy offense, which harmed approximately 60 account-

holders, pursuant to U.S.S.G. § 2B1.1 cmt. n.19. Third, an upward departure may

be appropriate because of Channelle’s extensive history of fraud and theft offenses

and likelihood of recidivism.

       Channelle did not object to the factual statements in the PSI or to the

calculations of his advisory guidelines range.

       At the sentencing hearing, Channelle’s attorney noted Channelle’s “lifelong

pattern of frauds, forgeries, [and] thefts,” and that he was a “heroin addict” with a

“very strong criminal tendency.” Channelle’s attorney stated Channelle’s illegal

conduct was the direct result of his heroin addiction, and because of this,

“treatment in his case becomes paramount.” Channelle’s attorney expressed a wish


       2
       The statutory maximum for Channelle’s conspiracy conviction is 30 years’
imprisonment. 18 U.S.C. §§ 1344, 1349.

                                             6
that Channelle be eligible for the federal Bureau of Prisons’s 500-hour drug

treatment program. He argued: “I know the [guidelines] range established may or

may not be sufficient, depending on whether or not the Bureau of Prisons can

somehow be guided into ensuring that this man gets the 500-hour drug program . . .

. [I]f there was ever a man that needed it, this is the man.” Channelle’s attorney

stated the Bureau of Prisons often permits only the 40-hour drug treatment

program for sentences less than 7 years.

       Before imposing the sentence, the district court stated that it was required to

consider the 18 U.S.C. § 3553(a) factors in imposing the sentence and was required

to arrive at a sentence that was sufficient but no greater than necessary. It also

noted that Channelle’s “drug addiction has played a big role in his criminal

activities.”

       The district court specifically noted Channelle’s “unbelievable pattern of

criminal conduct” and that Channelle’s criminal history score was “way above” the

criminal history category VI stated in the PSI. The district court explained, “But

about half of his crimes were unscored because they’re so old. And so this is just a

lifelong pattern of conduct.” The district court also emphasized the harm

Channelle had caused to society and his victims, the need to deter Channelle from

further criminal conduct and to protect the public, and the seriousness of the



                                           7
offenses and the need to promote respect for the law.

      The district court imposed a sentence of 87 months’ imprisonment, 30

months above the high end of the advisory guidelines range. The district court

determined that Channelle’s conduct justified “a very lengthy sentence, if not one

that effectively would be a life sentence for Mr. Channelle,” given that he was 60

years old at sentencing. The district court determined, however, not to impose

what would essentially be a life sentence because Channelle “already did a decent

amount of time in state court, over 20 months, for related conduct.” The district

court also noted the “significant sentence” would “hopefully afford Mr. Channelle

the opportunity to get the drug treatment.” The district court summed its reasons

for the 87-month sentence: “But I just think, given the long history of this criminal

conduct, which is just repeated over and over again – I just think that I have to look

more to deterrence and protecting the public and trying to get Mr. Channelle some

drug treatment that hopefully will alter his behavior.”

      After the district court imposed the sentence, Channelle objected “[j]ust as to

the departure.” Channelle filed this timely appeal.

                                 II. DISCUSSION

      Channelle argues his 87-month sentence was procedurally and substantively

unreasonable. We review the reasonableness of a sentence for abuse of discretion



                                          8
using a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.

2008). We look first at whether the district court committed any significant

procedural error and then at whether the sentence is substantively reasonable under

the totality of the circumstances. Id. The party challenging the sentence bears the

burden to show it is unreasonable in light of the record and the 18 U.S.C. § 3553(a)

factors. United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

A.     Procedural Unreasonableness

       Channelle argues his sentence is procedurally unreasonable because “the

district court failed to correctly calculate the guidelines, in that it did not apply the

departure analysis provided for under USSG § 5K2.23 and did not credit Mr.

Channelle for time he had already served in state prison . . . .”

       Section 5K2.23 provides that a downward departure “may be appropriate” if

a defendant has completed serving a term of imprisonment and would be eligible

for a sentence adjustment under U.S.S.G. § 5G1.3(b) had his sentence been

undischarged at the time of federal sentencing. U.S.S.G. § 5K2.23. The section

also provides that, if the district court grants such a departure, the departure

“should be fashioned to achieve a reasonable punishment for the instant offense.”

Id.

       Our review of the sentence imposed by the district court first inquires



                                             9
whether the district court correctly calculated the defendant’s guidelines range, and

we construe a challenge of the decision denying a downward departure pursuant to

§ 5K2.23 as a challenge of the preliminary application of the guidelines. United

States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). As such, this Court

lacks jurisdiction “to consider a defendant’s appeal of a discretionary decision of

the district court to not apply a downward departure, so long as the district court

did not incorrectly believe that it lacked the authority to apply a departure,”

including downward departures under § 5K2.23.3 Id.; accord United States v.

Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). Unless the record indicates

otherwise, we assume the district court understood it had the authority to depart

downward. Dudley, 463 F.3d at 1228.

      There is no indication in this case that the district court mistakenly believed

it lacked legal authority to use § 5K2.23 to depart downward from Channelle’s

advisory guidelines sentence. The PSI specifically noted § 5K2.23 as a potential

reason for a downward departure. At sentencing, the district court noted that

Channelle “already did a decent amount of time in state court” and that the law

would justify a sentence within the guidelines range of 46-57 months. The district

court concluded, however, that it “just d[id not] feel them to be sufficient in this –



      3
          This Court reviews its subject matter jurisdiction de novo. Winingear, 422 F.3d at 1245.

                                                10
in this case.” This record shows that the district court believed Channelle’s

conduct warranted a sentence above even the upper range of the guidelines

sentence and that anything less would not be a sufficient sentence. We accordingly

lack jurisdiction to review Channelle’s argument that he should have received a

downward departure pursuant to § 5K2.23.

      Even if we had jurisdiction to consider Channelle’s argument for a

downward departure, he cannot present it on appeal because it was waived as part

of his plea agreement. This Court reviews the validity of a sentence-appeal waiver

provision of a plea agreement de novo. United States v. Weaver, 275 F.3d 1320,

1333 n.21 (11th Cir. 2001). A sentence appeal waiver must be made knowingly

and voluntarily and is valid if the government shows either that the district court

specifically questioned the defendant about the waiver or the record makes clear

that the defendant otherwise understood the waiver. United States v. Bushert, 997

F.2d 1343, 1350-51 (11th Cir. 1993). Here, the district court specifically discussed

the provisions of the appeal waiver with Channelle during the plea hearing,

Channelle agreed that he understood the appeal waiver and its four limited

exceptions, and Channelle initialed each page of the plea agreement, including the

appeal waiver. Channelle waived any appellate challenge to the district court’s

calculation of the advisory guidelines range except to the extent the sentence



                                          11
imposed exceeds the guidelines range. This exception does not encompass

Channelle’s argument that the district court erred in calculating his advisory

guidelines range by failing to consider or impose a downward departure under §

5K2.23.

B.    Substantive Unreasonableness

      Channelle argues his sentence was substantively unreasonable because (1)

the district court erroneously relied upon an impermissible factor – Channelle’s

need for drug treatment – in imposing an above-guidelines sentence, (2) the

sentence was unfairly disparate from his co-defendant Shields’s 46-month

sentence, and (3) the sentence was too long under the totality of the circumstances.

“If, after correctly calculating the guidelines range, a district court decides that a

sentence outside that range is appropriate, it must ‘consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597

(2007)). Likewise, although “[s]entences outside the guidelines are not presumed

to be unreasonable, . . . we may take the extent of any variance into our calculus.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.

2847 (2009). However, we “must give due deference to the district court’s



                                            12
decision that the § 3553(a) factors, on the whole, justify the extent of the variance.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597.4

       A sentence may be substantively unreasonable “if it does not achieve the

purposes of sentencing stated in [18 U.S.C.] § 3553(a).” Pugh, 515 F.3d at 1191

(quotation marks omitted). Section 3553(a) provides that district courts must

consider, inter alia, (1) the applicable guidelines range; (2) the nature and

circumstances of the offense; (3) the history and characteristics of the defendant;

(4) the need for the sentence imposed to reflect the seriousness of the offense, to

promote respect for the law, to provide just punishment for the offense, to provide

adequate deterrence to criminal conduct, and to protect the public from further

crimes of the defendant; (5) the need to avoid unwarranted sentencing disparities;

(6) the need to provide training, medical care, or other correctional treatment to the

defendant; and (7) the need to provide restitution to the victims. 18 U.S.C. §

3553(a). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court, and we will not substitute

our judgment in weighing the relevant factors.” United States v. Amedeo, 487




       4
        We review the district court’s imposition of sentence – whether within the guidelines
range or outside it – for abuse of discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Channelle’s
objections to his sentence in the district court were sufficient, and we reject the government’s
argument that plain error review applies.

                                                13
F.3d 823, 832 (11th Cir. 2007) (quotation marks and alterations omitted).5

       Channelle’s first argument is that the district court improperly considered

the 500-hour drug-treatment program as a ground to impose an above-guidelines

sentence. We disagree because § 3553(a) includes as a factor the need for the

sentence to “provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner.” 18

U.S.C. § 3553(a)(2)(D). Thus the district court did not abuse its discretion in

considering Channelle’s need for drug treatment.

       In any event, Channelle’s attorney argued repeatedly that Channelle was a

lifelong heroin addict whose addiction was the primary, if not only, driver of his

fraud and forgery crimes. He also argued Channelle must attend the Bureau of

Prisons’s intensive 500-hour drug program, which, in his experience, was not

permitted for sentences less than seven years (84 months). Channelle cannot now

complain that it was erroneous for the district court to consider the 500-hour

training program in imposing the sentence. See United States v. Stone, 139 F.3d

822, 838 (11th Cir. 1998) (“Generally, an appellate court will not review an error

invited by a defendant, on the rationale that the defendant should not benefit from

introducing error at trial with the intention of creating grounds for reversal on


       5
        The burden of establishing that a sentence is substantively unreasonable lies with the
party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

                                                14
appeal.”).

      Channelle’s remaining two arguments lack merit also. The district court did

not abuse its discretion in sentencing co-conspirator Shields to a 46-month

sentence but Channelle to an 87-month sentence. The district court could not have

taken Shields’s sentence into consideration when it sentenced Channelle because

Shields was not sentenced until two months after Channelle, and the “[d]isparity

between the sentences imposed on codefendants is generally not an appropriate

basis for relief on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325-26

(11th Cir. 2001).

      Channelle finally argues the district court’s overall 30-month upward

variance was substantively unreasonable under the totality of the circumstances,

because in effect Channelle will serve 114 months’ imprisonment, including the

state imprisonment, for federal crimes for which the advisory guidelines sentence

at the low end was only 46 months. Channelle has not met his burden to show the

district court’s upward variance was unreasonable in light of the record and the §

3553(a) factors. We must give due deference to the district court’s decision that

the § 3553(a) factors, on the whole, justify an upward variance. Gall, 552 U.S. at

51, 128 S. Ct. at 597. We may vacate a sentence for substantive unreasonableness

if “we are left with the definite and firm conviction that the district court



                                           15
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,” which may be indicated by “a district court’s unjustified reliance

on any one Section 3553(a) factor . . . .” Pugh, 515 F.3d at 1191 (quotation marks

omitted).

        The district court did not abuse its discretion in imposing this upward

variance. The district court stated it relied on several permissible § 3553(a)

factors, including Channelle’s extensive history of these sorts of crimes, that the

guidelines range did not effectively take into account Channelle’s criminal history

and the harm to his victims, the need to deter Channelle from future criminal

conduct, the need to protect the public from Channelle’s recidivist behavior, and

the need to rehabilitate Channelle’s drug addition. On this record, we cannot say

the district court abused its discretion in imposing an 87-month sentence that was

still well under the statutory maximum of thirty years. See 18 U.S.C. §§ 1344,

1349.

        AFFIRMED.




                                           16
