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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12177
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-00463-TCB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DERRICK JOVAN REVERE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 31, 2016)

Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Derrick Revere appeals his 48-month sentence of imprisonment after

pleading guilty to conspiracy to steal, sell, or dispose of government property, in

violation of 18 U.S.C. §§ 371 and 641, and resisting or impeding government

officers while using a deadly or dangerous weapon, in violation of 18 U.S.C.

§ 111(a)(1), (b). On appeal, Revere argues that his sentence above the advisory

guideline range of 30 to 37 months is unreasonable. 1

       We review the reasonableness of a sentence, including a sentence above the

advisory guideline range, under a deferential abuse-of-discretion standard.2 Gall v.

United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). The party challenging

the sentence bears the burden of showing that it is unreasonable in light of the

record and the 18 U.S.C. § 3553(a) sentencing factors. United States v. Tome, 611

F.3d 1371, 1378 (11th Cir. 2010).

       In reviewing a sentence for reasonableness, we first ensure that the

sentencing court committed no significant procedural error before addressing the

substantive reasonableness of the sentence under the totality of the circumstances.

Gall, 552 U.S. at 51, 128 S. Ct. at 597. A sentence is procedurally unreasonable if


       1
          In an order entered on December 29, 2015, we dismissed Revere’s appeal in part as to
the district court’s imposition of two sentencing enhancements on the basis of a sentence-appeal
waiver in Revere’s plea agreement. We allowed the appeal to proceed as to Revere’s challenge
to his above-guidelines sentence.
       2
         We find it unnecessary to address whether, as the government contends, plain-error
review applies to Revere’s challenge to the procedural reasonableness of his sentence, because
Revere is not entitled to relief under our normal standard of review.
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the district court erred in calculating the guideline range, treated the Sentencing

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. Id. A sentence is substantively unreasonable if it does not achieve the

purposes of sentencing stated in § 3553(a).3 United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008); see 18 U.S.C. § 3553(a) (“The court shall impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in

[§ 3553(a)(2)].”).

       In general, the district court’s explanation of its sentence must articulate

enough to satisfy this Court that it “considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). The district court

does not need to explicitly discuss each of the § 3553(a) factors, and its statement

that it took into consideration the § 3553(a) factors and the defendant’s arguments

at sentencing is sufficient. United States v. Sanchez, 586 F.3d 918, 936 (11th Cir.

2009).




       3
         These purposes are retribution, deterrence, incapacitation, and rehabilitation. See 18
U.S.C. § 3553(a)(2). When sentencing a defendant, the district court also must 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, the need to avoid unwanted sentencing disparities, and the need to
provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
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      When reviewing a sentence outside the guideline range, we consider the

extent of deviation from the guidelines and the district court’s justifications for the

sentence. United States v. Irey, 612 F.3d 1160, 1186 (11th Cir. 2010) (en banc).

The district court’s justification must be sufficiently compelling to support the

degree of the variance. Id. at 1186–87. Nonetheless, we may not presume that a

sentence outside the guideline range is unreasonable, and we “must give due

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

justify the extent of the variance.” Id. at 1187 (internal quotation marks omitted).

In general, we will vacate a sentence 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.” Id. at 1190 (internal

quotation marks omitted).

      Revere’s arguments on appeal all relate to the district court’s reliance on his

extensive criminal history to sentence him above the advisory guideline range.

Revere’s presentence investigation report (“PSR”) reflects that he had over thirty

prior convictions and over twenty pending charges. The PSR counted a total of

twenty-two criminal history points, well above the thirteen necessary to place him

in criminal-history category VI.




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       At sentencing, after calculating the guideline range, the district court stated

that the problem it had with the case was Revere’s criminal history. In response to

Revere’s arguments that his criminal history included primarily minor offenses, the

district court explained that the offenses, while “petty,” were “not insignificant”

and “matter[ed] a lot,” and that Revere had not been punished seriously for them.

In light of the gravity of Revere’s criminal history, the court found that Revere

needed to spend more time in prison than recommended by the guidelines so that

he would “hopefully get the message that he can’t commit crimes and get away

with it.”

       Revere argues that the district court procedurally erred in relying on his

criminal history because that factor was already taken into account in his criminal

history category and, in turn, his guideline range. He also asserts that, while

U.S.S.G. § 4A1.3 authorizes an upward departure based on a defendant’s criminal

history, the district court did not follow the procedural requirements of that section,

nor did the court otherwise adequately explain why his criminal history was not

accurately reflected in his guideline range.

       Here, Revere has not shown that his sentence is procedurally unreasonable.

Nothing prohibits a sentencing court from relying on conduct already accounted

for in the calculation of the guideline range when imposing a variance based on the




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§ 3553(a) factors.4 United States v. Amedeo, 487 F.3d 823, 833–34 (11th Cir.

2007) (noting that “exceptional circumstances” in that case justified such reliance);

cf. 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning

the background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.”). Therefore, a sentencing court may impose an upward

variance under § 3553(a) when a defendant’s criminal-history category fails to

adequately reflect the extent or severity of his prior criminal record. See United

States v. Rosales-Bruno, 789 F.3d 1249, 1261–63 (11th Cir. 2015) (noting that a

defendant’s criminal history implicates several of the § 3553(a) factors, and citing

cases in which we have affirmed upward variances based in part on defendants’

significant criminal histories); United States v. Shaw, 560 F.3d 1230, 1240–41

(11th Cir. 2009) (holding that an upward variance of 83 months was reasonable

when a defendant had one-and-a-half times the number of points needed to fall

within criminal history category VI).

       Moreover, the district court adequately explained its reasons for basing an

upward variance on Revere’s extensive criminal history. The court stressed that

Revere had an extensive number of prior convictions but had not been seriously


       4
          Revere cites 18 U.S.C. § 3553(b), which significantly restricted courts’ ability to
sentence defendants outside the guideline range, but that provision was invalidated by United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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punished for them. For that reason, the court explained, Revere needed to serve a

lengthier sentence than called for by the guideline range in order to understand that

he could not get away with continuing to commit crimes. The court’s explanation

touched on a number of the § 3553(a) factors, including the nature and

characteristics of Revere and the need for the sentence to deter future criminal

conduct. The court also addressed Revere’s arguments and stated that it had

carefully considered the § 3553(a) sentencing factors. As a whole, the court’s

explanation was more than sufficient to show that it considered the parties’

arguments and had a reasoned basis for exercising its sentencing authority as it did.

See Rita, 551 U.S. at 356, 127 S. Ct. at 2468; Sanchez, 586 F.3d at 936.

      The district court also did not procedurally err by failing to follow the

requirements of U.S.S.G. § 4A1.3, which authorizes a sentencing court to depart

upward from the guideline range based on the inadequacy of a defendant’s

criminal-history category. U.S.S.G. § 4A1.3; see United States v. Gibson, 434

F.3d 1234, 1252 (11th Cir. 2006). Under § 4A1.3, when a defendant starts in

criminal-history category VI, as Revere did, “the court should structure the

departure by moving incrementally down the sentencing table to the next higher

offense level” until the court finds an appropriate guideline range.       U.S.S.G.

§ 4A1.3(a)(4)(B). Revere faults the court for not moving incrementally down the

sentencing table in arriving at his above-guidelines sentence.


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        However, the district court was not required to follow § 4A1.3’s procedures

because the court imposed a variance from the advisory range under § 3553(a)

rather than a departure under § 4A1.3. To determine whether the district court

applied a variance or a guided departure, we consider whether the court cited to a

specific guideline departure provision and whether the court’s rationale was based

on its determination that the guidelines were inadequate.         United States v.

Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009). In this case, no guideline

departure provision was applied or discussed at sentencing, and the court

specifically indicated that the guideline range was insufficient. See id. Because

the court applied a variance and not a departure, the court was not required to

follow the procedural requirements of § 4A1.3. See id. In sum, Revere has not

shown that his sentence was procedurally unreasonable.

        Turning to substantive reasonableness, Revere argues that his sentence is

excessive because his criminal history—mainly consisting of relatively minor

offenses—was accurately reflected in the guideline range and no adequate grounds

existed on which to base an upward variance. Giving due deference to the district

court, however, we conclude that the court’s justification was sufficiently

compelling to support the modest upward variance imposed. See Irey, 612 F.3d at

1187.




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      Generally speaking, a sentencing court has broad discretion to decide how

much weight to give each of the § 3553(a) factors and may attach great weight to

one particular factor, so long as the court does not commit a clear error of

judgment. Rosales-Bruno, 789 F.3d at 1262–63. As a result, “[d]istrict courts

have broad leeway in deciding how much weight to give to prior crimes the

defendant has committed.” Id. at 1261. In addition, we have recognized that

“[p]lacing substantial weight on a defendant’s criminal record is entirely consistent

with § 3553(a) because five of the factors it requires a court to consider are related

to criminal history.”   Id. at 1263. These five factors include the nature and

circumstances of the offense, the nature and characteristics of the defendant, the

need to promote respect for the law, the need to provide adequate deterrence, and

the need for the protection of the public. See id. at 1262–63.

      Here, Revere’s sentence is substantively reasonable. As recounted above,

Revere had twenty-two criminal-history points, well above the thirteen necessary

to place him in criminal-history category VI. See id. at 1263 (referencing cases in

which we have affirmed substantial upward variances based on a defendant’s

significant criminal history). Moreover, several of Revere’s prior convictions were

for the same types of crimes as the instant offenses, additional pending offenses

remained unaccounted for in his guideline range, and the court found that Revere’s

prior punishments had not been adequate to deter him from committing additional


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offenses.   These facts about Revere’s criminal history go beyond what was

accounted for in his criminal-history category and guideline range, and they

support the district court’s decision to impose an upward variance. Under these

circumstances, we cannot say it was unreasonable for the district court to

determine that a sentence above the guideline range was necessary to deter Revere

from future criminal conduct. See, e.g., United States v. Riggs, 967 F.2d 561, 563

(11th Cir. 1992) (“Similarity of offenses has been closely linked to recidivism.”).

      For these reasons, Revere has not shown the district court exceeded the

range of reasonable sentences under the totality of the circumstances. See Irey,

612 F.3d at 1190. For these reasons, we affirm Revere’s total sentence of 48

months of imprisonment.

      AFFIRMED.




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