                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                        ________________________              AUGUST 7, 2009
                                                            THOMAS K. KAHN
                              No. 08-16193                      CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 08-00151-CR-J-24-JRK

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

AARON TYRONE WILSON,
a.k.a. T-Y

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 7, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Aaron Tyrone Wilson appeals the 96-month sentence imposed by the district
court for his printing and production of false and fictitious documents purporting to

be actual securities or other financial instruments, in violation of 18 U.S.C. § 514.

On appeal, Wilson argues that his sentence is procedurally and substantively

unreasonable. He also asserts that the district court erred because it identified the

wrong laptop computer in the forfeiture order accompanying the sentence. For the

reasons that follow, we AFFIRM his sentence but REMAND to permit the district

court to correct the record with respect to the forfeiture order.

                                 I. BACKGROUND

      Between August and November 2007, Wilson manufactured counterfeit

checks that purported to be from various corporations conducting business in

Florida and other states. On 6 November 2007, Secret Service agents observed

Wilson attempting to cash counterfeit checks and seized various pieces of

evidence, including a laptop computer and a printer, which Wilson later admitted

he used to print the checks. A grand jury subsequently indicted him for knowingly

making fictitious financial instruments, in violation of 18 U.S.C. § 514(a)(1), a

crime to which Wilson pled guilty in June 2008. Wilson’s indictment included a

provision in which the government sought forfeiture under 18 U.S.C. § 492 and 24

U.S.C. § 2461(c) of an Acer 800 laptop computer, a power cord, and a Lexmark

printer. The government, after determining that agents had seized a Dell Inspiron



                                           2
laptop rather than a Acer 800 laptop, simultaneously filed a motion to dismiss the

forfeiture count with respect to the Acer laptop and a bill of particulars specifying

forfeiture of the Dell Inspiron laptop, along with the Lexmark printer and power

cord. It subsequently moved for a preliminary order of forfeiture on those latter

three items, which the district court granted.

      The district court held a sentencing hearing in October 2008, at which

Wilson reiterated his guilty plea. Prior to the hearing, the government filed a

motion based on U.S.S.G. § 4A1.3 for a two-level upward departure with respect to

Wilson’s criminal history category. In the motion, the government asserted that

Wilson’s criminal history category did not adequately reflect his past criminal

conduct because many of his prior convictions no longer could be taken into

account due to the passage of time. At the sentencing hearing, the court noted that,

prior to any departures or variances, Wilson’s guideline sentencing range would be

18 to 24 months of imprisonment, based on a criminal history category of IV and a

total adjusted offense level of 11. It then granted the government’s motion for a

§ 4A1.3 upward departure, which increased Wilson’s criminal history category

from IV to VI and changed his guideline range to 27 to 33 months of

imprisonment. After granting this motion, the court expressed its displeasure with

this adjusted range, noting that Wilson’s criminal history was “just bad” and that



                                           3
recidivism was likely. R6 at 16–17. The court stated that it was “going to depart

upward” and sentence Wilson to 96 months of imprisonment “based on this

uncounted criminal history, the fact that he’s on supervised release[,] . . . which

leads to the conclusion that he can’t stop,” and because “a longer sentence than

what’s recommended under the guideline is needed to protect the public.” Id. at

19. The court later commented that it had “considered the sentencing guidelines,

as well as the [18 U.S.C. §] 3553 factors, and for [the] reasoning already indicated

[was] going to . . . depart upward from the guideline range.” Id. at 21. Wilson

objected to the sentence as an excessive departure from the guidelines and

unreasonable in light of the § 3553 factors. The court also sentenced Wilson to 24

months of imprisonment, to run consecutively with his other sentence, for

committing the crime while on supervised release.

      The district court stated at the sentencing hearing that it also was granting

the forfeiture motion and including it in the final judgment. The final judgment of

conviction, as well as the court’s statements at sentencing, identified the property

to be forfeited as the Acer 800 laptop, power cord, and Lexmark printer. Wilson

did not object to this catalog of items at the hearing, even though the court had

misidentified the laptop in question. When the court issued the final judgment of

forfeiture, it correctly listed the Dell Inspiron laptop along with the Lexmark



                                           4
printer and power cord as the property subject to forfeiture. Wilson subsequently

appealed his sentence.

                                   II. DISCUSSION

      On appeal, Wilson raises two issues. First, he contends that his 96-month

sentence is both procedurally and substantively unreasonable. Second, he asserts

that the district court erred in ordering him to forfeit his interest in the Acer 800

laptop. With respect to the reasonableness of his sentence, he maintains that it is

unclear from the record whether the district court based his above-guidelines

sentence on an upward departure under § 4A1.3 or an upward variance under

§ 3553(a). If it was the former, then the court would not have followed the

required procedure for departing upward. Furthermore, he asserts that the sentence

was greater than necessary to deter future criminality.

A. Reasonableness of Wilson’s Sentence

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

reasonableness.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008)

(per curiam). In so doing, we must consider both the procedural and substantive

reasonableness of a sentence. See id. “A sentence may be procedurally

unreasonable if the district court improperly calculates the Guidelines range, treats

the Guidelines as mandatory rather than advisory, fails to consider the appropriate



                                            5
statutory factors, selects a sentence based on clearly erroneous facts, or fails to

adequately explain the chosen sentence.” Id. After we determine that a sentence is

procedurally reasonable, we examine the substantive reasonableness of a sentence

under an abuse-of-discretion standard, focusing on whether the totality of the

circumstances, including the relevant § 3553(a) factors, support the sentence. See

id. at 1323–24.

      As Wilson notes, there is an intrinsic difference between an upward

departure and an upward variance, with the former resulting from the application

of particular provisions of the sentencing guidelines, such as § 4A1.3, and the latter

from the court’s consideration of the § 3553(a) factors1 . See United States v.

Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam). A district court may

issue an upward departure if it determines that the criminal history category

      1
          These factors include:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant; (2) the need 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 deterrence; (4) the need to
      protect the public; (5) the need to provide the defendant with needed
      educational or vocational training or medical care; (6) the kinds of
      sentences available; (7) the Sentencing Guidelines range; (8) pertinent
      policy statements of the Sentencing Commission; (9) the need to avoid
      unwanted sentencing disparities; and (10) the need to provide restitution
      to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam)

                                            6
assigned to a defendant “substantially under-represents the seriousness of the

defendant’s criminal history or the likelihood that the defendant will commit other

crimes.” U.S.S.G. § 4A1.3(a)(1) (Nov. 2007). For upward departures from a

criminal history category of VI, the court “should structure the departure by

moving incrementally down the sentencing table to the next higher offense level in

Criminal History Category VI until it finds a guideline range appropriate to the

case.” Id. § 4A1.3(a)(4)(B). On the other hand, the court may upwardly vary a

sentence after taking into account all of the factors listed in § 3553(a). A

sentencing judge need not make an explicit statement indicating that he has taken

all of those factors into account; however, he should provide enough indication “to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” United

States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation marks and

citation omitted).

      In this case, both parties agree that the district court initially imposed an

upward departure to criminal history category VI and that there was no procedural

error in that action. We therefore must determine whether the court’s subsequent

decision to impose a 96-month sentence represented an upward variance or a

second upward departure. Based on our review of the evidence, it appears that the



                                           7
court intended to impose an upward variance. Admittedly, the court stated that it

was “depart[ing] upward” in imposing the above-the-guidelines sentence. R6 at

19. In the same sentence, though, the court justified its action by citing concepts

that seem to reflect the § 3553(a) factors, such as the need to protect the public,

Wilson’s criminal history and characteristics, and the risk of recidivism. See 18

U.S.C. § 3553(a)(1), (2)(A)–(C). The court later explicitly stated that it was basing

its “departure” in part on § 3553. Additionally, the court’s written statement of

reasons supporting the sentence indicated that it imposed an above-guidelines

sentence for the reasons articulated in § 3553(a)(2), i.e., protecting the public from

future crimes by Wilson, in addition to upwardly departing under § 4A1.3 to reflect

Wilson’s inadequate criminal history. These repeated references to § 3553(a)

considerations indicate that the court intended to impose an upward variance, since

those factors, with the exception of criminal history, generally would not be

relevant for an upward departure under § 4A1.3. We therefore find that the court’s

above-guidelines sentence reflected an upward variance, notwithstanding the

court’s reference to an upward “departure.”

      In light of this finding, we turn to evaluating Wilson’s sentence for

reasonableness. Neither party asserts that the court improperly calculated the

applicable guidelines range and the court provided a number of legitimate



                                           8
justifications for the above-guidelines sentence. We therefore find Wilson’s

sentence to be procedurally reasonable. See Gonzalez, 550 F.3d at 1323. Wilson

argues that his sentence was substantively unreasonable because the court relied on

faulty calculations of his prior offenses and effectively doubly penalized him by

sentencing him for committing the crime while on supervised release and upwardly

varying his sentence based on his recidivism. We disagree. Wilson still would

have a quite extensive criminal history even ignoring all of the charges he disputes.

Additionally, Wilson’s sentence for violating his supervised release is premised on

a breach of the court’s trust. See U.S.S.G. Ch.7, Pt.A, intro. comment. 3(b). On

the other hand, the court’s reference to Wilson’s inability to stop committing

crimes relates to various § 3553(a) factors, including promoting respect for the law

and deterring criminal conduct. See 18 U.S.C. § 3553(a)(2)(A)–(B). The upward

variance thus would not constitute double punishment for Wilson’s violation of his

supervised release. Although Wilson’s sentence represented a dramatic increase

from his guideline range, the variance is not unreasonable given the totality of the

circumstances. See Gonzalez, 550 F.3d at 1323–24. Wilson’s vast criminal

history, along with concerns about recidivism and protecting the public, all support

the court’s sentence. Additionally, we note that his 96-month sentence was well

below the statutory maximum of 300 months. See 18 U.S.C. §§ 514(a),



                                          9
3581(b)(2).

B. Forfeiture Order

      Both parties concede that the district court erred when it ordered the

forfeiture of an Acer 800 laptop computer instead of a Dell Inspiron laptop

computer. Wilson asserts that, as a result, we should vacate that provision of his

sentence and remand for resentencing. Because Wilson did not object to this error

before the district court, we review his objection under a plain error standard. See

United States v. Garey, 546 F.3d 1359, 1363 (11th Cir. 2008) (per curiam). For us

to correct such an error, “(1) there must be error; (2) the error must be plain; and

(3) the error must affect substantial rights.” Id. If we find those conditions to be

met, we may exercise our discretion “to notice a forfeited error, but only if . . . the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks and citation omitted).

      In this case, there is no basis for vacating this portion of Wilson’s sentence.

Although the first two prongs of the plain error standard would be met, Wilson has

provided no evidence that his substantial rights were affected by the error. In fact,

the final judgment of forfeiture listed the Dell Inspiron laptop rather than the Acer

laptop. The court’s references to the Acer laptop at the sentencing hearing and in

the final judgment of conviction thus would constitute the kind of clerical error that



                                            10
the district court could correct pursuant to Rule 36 of the Federal Rules of Criminal

Procedure. See Rule 36 (stating that the district court “may at any time correct a

clerical error in a judgment, order, or other part of the record, or correct an error in

the record arising from oversight or omission”). Bearing this in mind, we think the

appropriate course of action is to affirm the forfeiture order but remand the case to

the district court to permit it to take any corrective action it may deem appropriate.

                                 III. CONCLUSION

       Wilson appeals the district court’s 96-month sentence following his

conviction for printing and producing false and fictitious documents purporting to

be actual securities or other financial instruments. The record sufficiently indicates

that the court’s sentence was based on an upward variance from an adjusted

guideline range. Wilson’s sentence therefore was procedurally and substantively

reasonable given his criminal history, the need to protect the public, and the risk of

recidivism. Furthermore, although the district court misstated the property subject

to forfeiture in connection with this offense, we find both that this was not plain

error that would necessitate vacating that portion of his sentence and that such an

error can be corrected by the district court pursuant to Rule 36. We thus AFFIRM

his sentence and REMAND to allow the district court to correct the record as it

sees fit.



                                           11
AFFIRMED and REMANDED.




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