                                                          [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    JANUARY 23, 2008
                                                    THOMAS K. KAHN
                              No. 07-13060
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                 D. C. Docket No. 07-00004-CR-FTM-29DNF

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

LUIS RAMIREZ,

                                                      Defendant-Appellant.
                        ________________________

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

                             (January 23, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Luis Ramirez appeals his 60-month sentence for larceny of
personal property, in violation of 18 U.S.C. §§ 661 and 2. Ramirez’s guideline

range was 8-12 months, but the district court sentenced him to the statutory

maximum of 60 months imprisonment.

      Ramirez argues on appeal that the district court’s 750% upward “deviation”

from the guideline range was unreasonable and was the result of the court’s

(1) overemphasis of his criminal history, (2) improper sentencing procedure, and

(3) inadequate consideration of the 18 U.S.C. § 3553(a) factors. Ramirez contends

that the court failed to consider the $1,000 loss amount, and he notes that,

according to our precedent, (1) a sentence that falls far outside the guideline range

must be supported by “extraordinary circumstances,” and (2) in determining a

defendant’s sentence, the district court should not rely on any one single factor.

Ramirez also argues that the district court failed to either set forth any statutory

elements to support an upward variance or follow the procedural requirements for

an upward departure pursuant to U.S.S.G. § 4A1.3. In his reply brief, Ramirez

argues that the district court did not follow Booker’s1 directives because it first

failed to correctly calculate the guideline range and then to consider the 18 U.S.C.

§ 3553(a) factors. Further, according to Ramirez, the court failed to implement

uniform sentencing, and the sentence nullified the two-level decrease he received



      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

                                                 2
for acceptance of responsibility.

      “We review the sentence imposed by the district court for reasonableness.”

United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). “Reasonableness”

review requires that the appellate court review the sentence under an

abuse-of-discretion standard. Gall v. United States, __ U.S. __, 128 S. Ct. 586,

594 (2007) (stating that the Supreme Court’s “explanation of ‘reasonableness’

review in the Booker opinion made it pellucidly clear that the familiar

abuse-of-discretion standard of review now applies to appellate review of

sentencing decisions”). We

      must first ensure that the district court committed no significant
      procedural error, such as failing to calculate (or improperly
      calculating) the Guidelines range, treating the Guidelines as
      mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
      selecting a sentence based on clearly erroneous facts, or failing to
      adequately explain the chosen sentence-including an explanation for
      any deviation from the Guidelines range.

Id., __ U.S. __, 128 S. Ct. at 597. “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.” Rita v.

United States, __ U.S. __, 127 S. Ct. 2456, 2468 (2007).

      “In reviewing the ultimate sentence imposed by the district court for

reasonableness, we consider the final sentence, in its entirety, in light of the



                                            3
§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.

2006). “Review for reasonableness is deferential,” and, in reviewing for

reasonableness, the relevant inquiry is “whether the sentence imposed by the

district court fails to achieve the purposes of sentencing as stated in section

3553(a).” Talley, 431 F.3d at 788. “[T]he party who challenges the sentence bears

the burden of establishing that the sentence is unreasonable in the light of both

[the] record and the factors in section 3553(a).” Id.

      The § 3553(a) factors that a district court must consider include: (1) the

nature and circumstances of the offense and the history and characteristics of the

defendant; (2) the need for the sentence imposed to reflect the seriousness of the

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

offense; (3) the need for the sentence imposed to afford adequate deterrence;

(4) the need to protect the public; (5) the need to provide the defendant with

educational or vocational training or medical care; (6) the kinds of sentences

available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements

of the Sentencing Commission; (9) the need to avoid unwanted sentencing

disparities; and (10) the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1)-(7).

      When applying these factors to a particular sentence, “[t]he weight to be



                                           4
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 because ‘our review is not de novo.’” United States v. Williams,

456 F.3d 1353, 1363 (11th Cir. 2006) (citation and alteration omitted), cert.

dismissed, 127 S. Ct. 3040 (2007), abrogated on other grounds, Kimbrough v.

United States, ___U.S.___, 128 S. Ct. 558 (2007). However, “nothing in Booker

or elsewhere requires the district court to state on the record that it has explicitly

considered each of the section 3553(a) factors or to discuss each of the section

3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      In United States v. Valdes, 500 F.3d 1291 (11th Cir. 2007), we vacated

Valdes’s sentence and remanded to the district court because it was unclear

whether the court was departing upwardly under U.S.S.G. § 4A1.3 or whether the

court was applying a variance based on the 18 U.S.C. § 3553(a) factors, and,

therefore, the record was “insufficient to permit the affirmance of the sentence.”

Id. at 1292. We stated that “[i]f the court intended to rely solely on § 3553(a) to

vary upward from the Guidelines, the reasons discussed were inadequate to support

an extraordinary variance to a sentence of 108 months, which was more than

double the high-end of the calculated Guidelines range, and significantly, well

above the Government’s recommended Guidelines range of 57-71 months.” Id. In



                                            5
a footnote, we stated that, “[m]any of the bases for the district court’s sentence

were already accounted for in calculating the Guidelines range and nothing

extraordinary about the circumstances of this case justified this extreme variance.”

Id. n.2. We found support in United States v. McVay, 447 F.3d 1348 (11th Cir.

2006), which held that a district court’s imposition of a sentence that falls far

outside the Guidelines range must be supported by “extraordinary circumstances.”

Id. at 1357.

      In United States v. Crisp, 454 F.3d 1285, 1290-92 (11th Cir. 2006), we

determined that a five-hour term of imprisonment was unreasonable. Although the

district court stated “the sentence reflects the seriousness of the offense, provides

just punishment, affords adequate deterrence and adequately protects the public,”

we determined that the district court’s primary concern at sentencing was to

provide restitution, and the court imposed a brief sentence to allow the defendant to

earn money in order to do so. Id. at 1290-91. We stated, “a district court’s

‘unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an

unreasonable sentence,’” and concluded that “[t]he district court focused

single-mindedly on the goal of restitution to the detriment of all of the other

sentencing factors. An unreasonable approach produced an unreasonable

sentence.” Id. at 1292 (citation omitted). In addition, we stated that “district courts



                                           6
should consider the policies behind the applicable guidelines provision” in

deciding a sentence and noted that “along with other relevant factors under the

guidelines, loss serves as a measure of the seriousness of the offense and the

defendant’s relative culpability and is a principal factor in determining the offense

level under this guideline.” Id. at 1291 (quoting U.S.S.G. § 2B1.1, comment.

(backg’d)).

      In its recent Gall decision, the Supreme Court stated,

      In reviewing the reasonableness of a sentence outside the Guidelines
      range, appellate courts may . . . take the degree of variance into
      account and consider the extent of a deviation from the Guidelines.
      We reject, however, an appellate rule that requires ‘extraordinary’
      circumstances to justify a sentence outside the Guidelines range. We
      also reject the use of a rigid mathematical formula that uses the
      percentage of a departure as the standard for determining the strength
      of the justifications required for a specific sentence.

Gall, __ U.S. __, 128 S. Ct. at 594-95. The Supreme Court stated that a

“proportional review” is “inconsistent with the rule that the abuse-of-discretion

standard of review applies to appellate review of all sentencing decisions-whether

inside or outside the Guidelines range.” Id., __ U.S. __, 128 S. Ct. at 596. When a

sentencing judge determines that a non-guideline sentence is warranted, “he must

consider the extent of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Id., __ U.S. __, 128 S. Ct. at

597. However, “a major departure should be supported by a more significant

                                           7
justification than a minor one.” Id. In reviewing the sentence for reasonableness,

an appellate court “may consider the extent of the deviation, but must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance. The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient

to justify reversal of the district court.” Id.

       In the present case, we affirm Ramirez’s sentence because even though the

sentence amounted to a significant upward variance, the district court properly

calculated the advisory guideline range, considered the relevant § 3553(a) factors,

articulated its reasons in open court, considered Ramirez’s arguments, and had a

reasoned basis for its decision. See Gall, ___ U.S. ___, 128 S. Ct. at 597; Rita, ___

U.S. ___, 127 S. Ct. at 2468.

       AFFIRMED.




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