          Case: 15-13946   Date Filed: 04/25/2016   Page: 1 of 9


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-13946
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 6:15-cr-00085-GKS-TBS-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                  versus

FITZGERALD GABRIEL,

                                                        Defendant-Appellant.

                     ________________________

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

                            (April 25, 2016)
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Before TJOFLAT, JILL PRYOR, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Fitzgerald Gabriel appeals his above-guidelines sentence of 24 months,

which was imposed after Gabriel pleaded guilty to fraudulent use of a counterfeit

credit card, in violation of 18 U.S.C. § 1029(a)(1) and (c)(1)(A)(i). Gabriel

contends that his sentence is procedurally and substantively unreasonable. Gabriel

also seeks reassignment to a different district judge on remand. Reversible error

has been shown; we vacate the sentence and remand for resentencing without

direction of reassignment.

      We review the reasonableness of a sentence -- whether it is imposed inside

or outside the guidelines range -- under an abuse-of-discretion standard. Gall v.

United States, 128 S. Ct. 586, 597 (2007).

      In sentencing an individual defendant, the district court must first consider

the applicable guidelines range, the parties’ arguments, and the 18 U.S.C. §

3553(a) factors. Id. at 596. The district court then “must make an individualized

assessment based on the facts presented.” Id. at 597. The district court must also

“adequately explain the chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Id. A district court commits


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“significant procedural error” when it, among other things, fails to calculate

properly the guidelines range, fails to consider the section 3553(a) factors, or fails

“to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.” Id. After determining that a sentence is

procedurally sound, we review the sentence’s substantive reasonableness under the

totality of the circumstances. Id.

      At Gabriel’s sentencing hearing, after confirming the parties had no

objections to the Presentence Report, the district court made the following

statement:

      [T]his Court feels that the guidelines in this case, which is a criminal
      offense level ten, criminal history category I, that gives you an
      exposure of up to twelve months imprisonment, is totally out of touch.
      They haven’t taken into consideration how credit card and counterfeit
      credit card fraud has just gone viral in this country. There’s a credit
      card fraud being committed every five seconds and something has to
      stop this.

      The parties presented arguments to the court; each party requested a

sentence of 6 months’ imprisonment. Before imposing Gabriel’s sentence, the

district court made these comments:

      Mr. Gabriel, even though, fortunately, you got caught only after a loss
      of $439, you had pre-encoded cards with your name on it that had a
      potential of thousands of dollars, $9000, and probably would have
      defrauded somebody if you hadn’t been caught.
      As I said earlier, the guidelines in this case the Court thinks are
      inappropriate. And the public has to know that if they try to defraud


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      other people and steal their identity, they’re going to have to pay for
      it. This has to stop somehow.

The court then sentenced Gabriel to 24 months’ imprisonment.

      On appeal, Gabriel first argues that the district court erred procedurally by

failing to calculate his advisory guidelines range. The district court made no

mention of Gabriel’s guidelines range of 6 to 12 months’ imprisonment. The

district court did, however, state correctly Gabriel’s criminal offense level and

criminal history category, and that the guidelines provided for “exposure of up to

twelve months imprisonment.” At this point, we see no “significant procedural

error.”

      Gabriel goes on to contend that the district court erred by failing to consider

the section 3553(a) factors. We stress that nothing “requires the district court to

state on the record that it has explicitly considered each of the § 3553(a) factors or

to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,

1329 (11th Cir. 2005) (the district court’s explicit acknowledgement that it

considered the parties’ arguments and the section 3553(a) factors is sufficient).

Moreover, we have affirmed a sentence as procedurally reasonable where the

district court failed entirely to state that it had considered the section 3553(a)

factors, but where the record otherwise demonstrated that the district court had

considered the sentencing factors. See United States v. Dorman, 488 F.3d 936,

944 (11th Cir. 2007) (no procedural error occurred because the district court

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discussed facts pertinent to several section 3553(a) factors in ruling on defendant’s

objections and motion for a downward departure).

      Here, as in Dorman, the district court made no mention of the specific

section 3553(a) factors and failed to state more broadly that it had considered the

statutory factors in imposing Gabriel’s sentence. But this case is different from

Dorman. The district court in Dorman imposed a within-guidelines sentence and

engaged in a detailed discussion of facts specific to the case that also pertained to

the section 3553(a) factors. See id. at 944-45. Given the brevity of the district

court’s comments in this case and our precedent, we conclude that the record is

insufficient to establish that the district court considered the array of factors

necessary for proper sentencing -- including the section 3553(a) factors --

especially when imposing an above-guidelines sentence.

      Next, Gabriel contends that the district court erred procedurally when it

failed to explain adequately the chosen sentence. A district court is required “at

the time of sentencing,” to “state in open court the reasons for its imposition of a

particular sentence.” 18 U.S.C. § 3553(c). In doing so, a district court must “tailor

its comments to show that the sentence imposed is appropriate, given the factors to

be considered as set forth in § 3553(a).” United States v. Bonilla, 463 F.3d 1176,

1181 (11th Cir. 2006).




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      “The appropriateness of brevity or length” of the court’s stated reasons

“depends upon circumstances” and is left in large part “to the judge’s own

professional judgment.” Rita v. United States, 127 S. Ct. 2456, 2468 (2007). The

district court must, however “adequately explain the chosen sentence to allow for

meaningful appellate review.” Gall, 128 S. Ct. at 597.

      The Guidelines are not mandatory. Nevertheless, one “circumstance”

important in determining the adequacy of the district court’s explanation is whether

the sentence imposed is inside or outside the guidelines range. “[W]hen a judge

decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.” Rita, 127 S. Ct. at 2468 (concluding that

the district court’s statement that the within-guidelines sentence was “appropriate”

was legally sufficient because the case was “conceptually simple” and the record

evidenced the district court considered the parties’ arguments and supporting

evidence). As the Supreme Court did in Rita, we have affirmed within-guidelines

sentences as procedurally reasonable where the district court provides a brief

explanation of the sentence imposed and the record establishes clearly that the

court considered the section 3553(a) factors. See, e.g., United States v. Agbai, 497

F.3d 1226, 1230 (11th Cir. 2007) (no procedural error when the court described the

case as “cookie-cutter” and discussed the need for deterrence and to avoid

unwarranted sentencing disparities, because the record indicated the court


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considered the section 3553(a) factors and concluded that the guidelines range was

proper in a mine-run case); Bonilla, 463 F.3d at 1181-82 (no procedural error when

the district court explained that the sentence imposed was “consistent with” the

guidelines, “accords with the array of factors specified at 18 U.S.C. § 3553,”

“adequately reflects the seriousness of the offense,” and was “neither greater nor

lesser than necessary to achieve the statutory purposes of sentencing” and where

the record made it “obvious the court considered many of the § 3553(a) factors”

(emphasis in original)); cf. United States v. Veteto, 920 F.2d 823, 826-27 (11th

Cir. 1991) (vacating as procedurally unreasonable a within-guidelines sentence

where the district court stated only that the sentence “seemed right”).

      Meanwhile, the imposition of a sentence outside the advisory guideline

range often necessitates a more detailed explanation. See 18 U.S.C. § 3553(c)(2)

(requiring a sentencing court to state “the specific reason for the imposition of a

sentence” outside the advisory guidelines range); Rita, 127 S. Ct. at 2468 (a judge

imposing a sentence outside the guidelines range “will explain why he has done

so”). In United States v. Livesay, 525 F.3d 1081 (11th Cir. 2008), we concluded

that the district court failed to explain adequately its reasons for varying below the

guidelines range. Even though the district court listed expressly the section

3553(a) factors and explained that it viewed the sentence imposed as “appropriate”

based on those statutory factors, we concluded the record allowed no meaningful


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appellate review because the district court offered “no reasoning or indication of

what facts justified” the variance or of “how the below-guidelines sentence

furthered the purposes of sentencing.” See id. at 1089, 1093-94.

      We accept that, in some circumstances, the district court may vary

categorically from the guidelines range based solely on a policy disagreement with

the guidelines. See Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007)

(involving the 100:1 crack to powder cocaine ratio). The district court’s decision

to do so, however, is entitled to “greatest respect” when the court determines that

the case falls “outside the heartland” of cases contemplated by the Sentencing

Commission and is subject to “closer review” in a “mine-run case.” Id. Here, the

District Court does not tell us enough about why this defendant got this sentence or

whether this case is a mine-run case or not.

      In this case, the record evidences no “individualized assessment based on the

facts presented” and contains no comments tailored to explain how the specific

sentence imposed is appropriate for this defendant, in the light of the section

3553(a) factors. Instead, the district court concluded that the “guidelines in this

case” were “inappropriate” and “totally out of touch” given that credit card fraud

has recently “gone viral.” Although the district court discussed some facts

pertinent to the section 3553(a) factors, it is not “obvious” from the record that the

court decided on the sentence based on the parties’ arguments or the section


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3553(a) factors. We also cannot determine whether the district court based its

sentencing decision solely on a policy disagreement with the guidelines or whether

the court considered Gabriel’s case to be a “mine-run case” or one that falls

“outside the heartland.” Given the record and the pertinent caselaw, we cannot

conclude that the district court’s explanation -- which is not focused on the

circumstances of this case and this defendant -- for the above-guidelines sentence

is sufficient.

       Because Gabriel’s sentence is procedurally unreasonable, we need not

address his arguments about substantive reasonableness. We vacate Gabriel’s

sentence and remand for resentencing.

       We deny Gabriel’s request for reassignment on remand.

       VACATED AND REMANDED. *




*
 We note that the district court also appears to have violated the rule set forth in United States v.
Jones, 899 F.2d 1097, 1102-03 (11th Cir. 1990), when it failed at the sentencing hearing to
“elicit[] fully articulated objections following the imposition of sentence.” This omission played
no part in our decision to vacate Gabriel’s sentence and to remand; we mention the omission
only so that the district court may elicit such objections upon resentencing.
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