           Case: 14-14453   Date Filed: 05/05/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14453
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:14-cr-00040-LC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


DOMINIC VINCENT GRASSO,

                                                         Defendant-Appellant.

                      ________________________

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

                              (May 5, 2016)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Dominic Grasso appeals his 60-month concurrent sentences, imposed above

the guideline range, for making and uttering counterfeit currency. He argues the

district court erred when it considered rehabilitation in imposing these sentences.

He further argues that the district court abused its discretion in imposing above-

guidelines sentences based on Grasso’s extensive criminal history. Upon review of

the record and the parties’ arguments, we affirm.

                                           I.

      We review de novo whether a factor considered by the district court in

sentencing is impermissible. United States v. Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). However, arguments not raised before the district court are

reviewed for plain error. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.

2005). Plain error occurs where: (1) there is an error; (2) that is plain; (3) that

affects the defendant’s substantial rights; and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. An error affects

substantial rights only when it affects the outcome of the proceedings. United

States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508

(1993).

      Under the invited error doctrine, we may not review on appeal any error that

the complaining party induced or invited the district court to make. United States

v. Harris, 443 F.3d 822, 823-24 (11th Cir. 2006). Even if a party does not induce


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the district court into making an error, invited error exists when a party

affirmatively accepts the district court’s proposal. See United States v. Fulford,

267 F.3d 1241, 1247 (11th Cir. 2001) (holding that a defendant invited the error

when he indicated that jury instructions were acceptable to him).

      A sentencing court may not impose or lengthen a prison term in order to

promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. ___, 131 S.

Ct. 2382, 2391, 180 L. Ed. 2d 357 (2011). Moreover, we have held that “Tapia

error occurs where the district court considers rehabilitation when crafting a

sentence of imprisonment,” not merely when it tailors the length of the sentence to

permit completion of a rehabilitation program, or makes rehabilitation the

dominant factor in reaching its sentencing determination. United States v.

Vandergrift, 754 F.3d 1303, 1310 (11th Cir. 2014) (emphasis in original). A court

may not consider rehabilitation “when determining whether to impose or lengthen

a sentence of imprisonment.” Id. “Because it is impermissible to consider

rehabilitation, a court errs by relying on or considering rehabilitation in any way

when sentencing a defendant to prison.” Id. at 1311. We may affirm a sentence

based on both proper and improper factors so long as the record reflects that the

improper factors did not affect or influence the district court’s sentence. United

States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994).




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       Grasso’s and his counsel’s remarks are most reasonably construed as asking

the district court to impose a lower sentence due to his drug addiction or

recommend that he be able to participate in the Federal Residential Drug Abuse

Program. The district court erred by stating that one of the factors it considered in

imposing the sentence was “to provide [Grasso] with the needed substance abuse

treatment during this period of incarceration.” Assuming that error was plain for

the sake of analysis, Grasso has not shown that the district court’s error affected his

substantive rights. The district court imposed an above-guidelines sentence “based

upon the extensive criminal history.” Because rehabilitation was a minor

consideration in the district court’s decision, Grasso has not met the third prong of

the plain error test.

                                          II.

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

discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591, 169 L. Ed. 2d 445 (2007). The party challenging the sentence has the

burden of establishing that the sentence was unreasonable. United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). A sentence imposed well below the statutory

maximum is an indicator of a reasonable sentence. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). The district court is required to impose a

sentence “sufficient, but not greater than necessary, to comply with the purposes”


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listed in 18 U.S.C. § 3553(a)(2). Id. We will 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.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

omitted).

      Where a district court correctly calculates the advisory guideline range,

considers the adequacy of the guidelines in light of the evidence and the § 3553(a)

factors, and imposes a sentence outside the guideline range because the range does

not adequately address a factor under § 3553(a), it has imposed a variance, not a

guidelines departure. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir.

2006). A sentencing court does not err when it fails to follow proper procedures

for imposing a departure when it imposes a variance under § 3553(a). Id.

      Here, the district court did not abuse its discretion by imposing an upward

variance from the guideline range in order to compensate for the fact that the

guidelines did not adequately reflect the severity of Grasso’s criminal history.

Because it imposed a variance, and not a departure, it was not required to follow

the procedure for an upward departure detailed in U.S.S.G. § 4A1.3. The district

court noted that Grasso had nearly three times the criminal history points required

for the highest criminal history category, and that several prior convictions were


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for similar offenses. The district court imposed sentences well below the statutory

maximum of 30 years’ imprisonment in total, which is further evidence of the

sentences’ reasonableness. It considered the 3553(a) factors, including the need to

protect the public and to deter future crimes, and imposed substantively reasonable

sentences.

      AFFIRMED.




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