           Case: 12-15971   Date Filed: 05/24/2013   Page: 1 of 5




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15971
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:10-cr-00071-WKW-WC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

OYANGO LANAR TOLBERT,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 24, 2013)

Before WILSON, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Oyango Tolbert appeals his 186-month sentence, imposed after he was

found guilty by a jury of one count of possession of cocaine base with intent to

distribute, and one count of possession of cocaine with intent to distribute, both in

violation of 21 U.S.C. § 841(a)(1). Tolbert’s sentence includes a 36 month upward

variance from the top end of his guideline range. On appeal, Tolbert argues his

sentence is unreasonable because the district court failed to provide adequate

justification for the variance and overemphasized his criminal history.

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

discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). To be

upheld on appellate review, a sentence must be both procedurally and substantively

reasonable. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010). The

party challenging the sentence bears the burden of showing it is unreasonable in

light of the record and the § 3553(a) factors. United States v. Rodriguez, 628 F.3d

1258, 1264 (11th Cir. 2010).

Procedural Reasonableness

      A sentence is procedurally unreasonable if the district court erred in

calculating the guideline range, treated the guidelines as mandatory, failed to

consider the § 3553(a) factors, selected a sentence based on clearly erroneous facts,

or failed to adequately explain the sentence, including any deviation from the

guideline range. Rodriguez, 628 F.3d at 1264. Extraordinary justification or rigid


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mathematical formulas are not required for a sentence outside the guideline range,

but the district court should explain why the variance is appropriate and the

“justification for the variance must be sufficiently compelling to support the degree

of the variance.” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en

banc) (quotations omitted).

      The record demonstrates that the district court provided ample justification

for the upward variance in Tolbert’s sentence. The district court varied upward

due to Tolbert’s likelihood of recidivism, given his criminal history and

disciplinary record in prison, and the inadequate extent to which his criminal

background was captured in his criminal history category. Because the district

court considered Tolbert’s arguments and the § 3553(a) factors and provided an

adequate explanation for the upward variance, Tolbert’s total sentence was

procedurally reasonable. Irey, 612 F.3d at 1187; Rodriguez, 628 F.3d at 1264.

Substantive Reasonableness

      The substantive reasonableness of a sentence is determined in light of the

totality of the circumstances, and we will not vacate a sentence as substantively

unreasonable unless “left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors” and

issued a sentence outside the range of reasonable sentences. Rodriguez, 628 F.3d

at 1264. A sentence outside the guidelines is not presumed to be unreasonable, and


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we must give deference to the district court's decision that the § 3553(a) factors

justify the extent of the variance. Turner, 626 F.3d at 574. When a defendant’s

criminal history category inadequately reflects his serious criminal record, an

upward variance is within the discretion of the district court. See United States v.

Shaw, 560 F.3d 1230, 1240-41 (11th Cir. 2009) (holding an upward variance for a

defendant who had 1.5 times the necessary points to reach the highest possible

criminal history category was reasonable).

      Tolbert’s sentence was substantively reasonable. The district court

discussed its serious concerns regarding Tolbert’s extensive criminal record and

his high likelihood of recidivism. Tolbert’s criminal history was replete with

serious and harmful acts, like theft, reckless endangerment, and eluding law

enforcement, and the district court’s determination that an upward variance was

necessary to protect the public was reasonable. Turner, 626 F.3d at 574. The

district court also noted Tolbert had nearly half again as many points needed to

reach the highest possible criminal history category, and acted within its discretion

when varying upward to promote respect for the law and account for the high

likelihood of recidivism. 18 U.S.C. § 3553(a)(2); Shaw, 560 F.3d at 1240-41. In

sum, the district court did not abuse its discretion in imposing Tolbert’s sentence,

and we affirm the 186 month sentence as procedurally and substantively

reasonable.


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AFFIRMED.




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