           Case: 16-14947   Date Filed: 08/08/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14947
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:15-cr-00423-ELR-RGV-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

AVERY FRAZIER,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 8, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
               Case: 16-14947   Date Filed: 08/08/2017   Page: 2 of 6


      Avery Frazier pleaded guilty to four counts of Hobbs Act robbery, 18 U.S.C.

§ 1951(a), and one count of brandishing a firearm during a crime of violence, 18

U.S.C. § 924(c)(1)(A)(ii). The crimes involved robberies of automobile title loan

businesses where Frazier brandished a gun, threatened employees’ lives, and told

them that if they wanted to see their families again they had to comply with his

demands. During three of the four robberies, Frazier forced the employees into

another room in the business and ordered them to stay there so that he would have

time to flee the scene.

      Before the sentence hearing, the government filed victim impact statements

written by the employees of the stores that Frazier had robbed. One employee was

so traumatized by the robbery that she relocated to a different city and found a new

job. Another employee stated that she was “scared to come back to work” but that

she could not quit because she was a single mom and needed money to provide for

her family. At the hearing, which lasted over three hours, the government

presented evidence showing that Frazier had a gambling habit and had gambled

away the robbery proceeds. Frazier, however, stated during his allocution that he

had committed the offenses to provide for himself and his family. He failed to

address or even acknowledge the evidence that he gambled away the stolen money,

a failure that the district court found “confusing” and was concerned about.




                                         2
              Case: 16-14947     Date Filed: 08/08/2017    Page: 3 of 6


Frazier presented four character witnesses who testified about his faith and

involvement in the church.

      The district court calculated an advisory guidelines range of 162 to 181

months imprisonment, but decided to vary upward and imposed a sentence of 240

months imprisonment, explaining that “[a]fter considering all of the applicable

sentencing factors pursuant to 18 U.S.C. § 3553(a), I do find that this sentence,

which is above the advisory custodial guideline range, is appropriate, adequate,

and necessary for punishment and deterrence.” Frazier challenges his sentence,

contending that it is procedurally and substantively unreasonable.

      District courts “must impose a procedurally and substantively reasonable

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

sentence is procedurally unreasonable if the district court “fail[s] to adequately

explain its variance from the advisory Guidelines range to its chosen sentence in a

way that allows for any meaningful appellate review.” United States v. Livesay,

525 F.3d 1081, 1093 (11th Cir. 2008).

      Frazier contends that his sentence is procedurally unreasonable because the

district court’s explanation of its reasons for the upward variance was not adequate.

We disagree. Several times during the lengthy sentence hearing, the district court

expressed concern about the facts underlying all of Frazier’s crimes and the impact

those crimes had on the stores’ employees. It found Frazier (and his proffered


                                          3
                Case: 16-14947       Date Filed: 08/08/2017       Page: 4 of 6


reason for committing the robberies — to provide for his family) not credible,

especially given his failure to respond to the government’s evidence showing that

he gambled away the robbery money. It found that the facts of those crimes along

with his failure to respond to the gambling evidence related to two § 3553(a)

factors, punishment and deterrence, and stated that the guidelines range did not

sufficiently account for those two factors in Frazier’s case. The district court

adequately explained its reasons for varying upward, and for that reason Frazier’s

sentence was not procedurally unreasonable. 1

       Frazier also contends that his sentence was substantively unreasonable

because it was outside of the range of reasonable sentences for his offenses. We

review for an abuse of discretion the substantive reasonableness of a sentence.

United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc). “A

district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” Id. at 1189. We vacate a sentence for substantive

       1
          Frazier contends that by relying on the fact that he brandished a firearm during the
robberies as a reason to vary upward the district court engaged in double counting. He argues
that his firearm brandishing conduct had already been taken into account under his guidelines
calculation. Frazier misunderstands double counting. It occurs only when one part of the
guidelines is applied to account for a harm that another part of the guidelines has already fully
accounted for. See United States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006). In
imposing a variance, however, the district court “may consider conduct that a probation officer
already had considered in calculating the defendant’s guidelines range.” United States v. Moran,
778 F.3d 942, 983 (11th Cir. 2015).
                                                4
              Case: 16-14947      Date Filed: 08/08/2017   Page: 5 of 6


unreasonableness “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.’” Id. at 1190 (quoting United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).

      Under § 3553(a), the district court must “impose a sentence sufficient, but

not greater than necessary to comply with the purposes” listed in § 3553(a)(2),

including to provide punishment for the offense, reflect the seriousness of the

offense, and “afford adequate deterrence to criminal conduct.” 18 U.S.C.

§ 3553(a). District courts must also consider “the nature and circumstances of the

offense,” the defendant’s “history and characteristics,” and “the kinds of sentences

available.” Id. In the substantive reasonableness context, “a major variance

. . . require[s] a more significant justification than a minor one — the requirement

is that the justification be sufficiently compelling to support the degree of the

variance.” Irey, 612 F.3d at 1196 (quotation marks omitted).

      Frazier contends that the district court abused its discretion in varying

upward because it gave too much weight to his gambling habit and did not give

enough weight to his allocution, character witness testimony, and lack of criminal

history. The district court did not abuse its discretion in giving more weight to the

fact that Frazier gambled away the robbery money than it gave to his allocution. It


                                           5
              Case: 16-14947      Date Filed: 08/08/2017   Page: 6 of 6


found Frazier’s allocution not credible. He never addressed the gambling and he

asserted (despite the gambling evidence showing otherwise) that he had committed

the crimes to provide for his family. The district court also did not clearly err in

finding Frazier’s character witnesses’ testimony not credible. The record shows

that it was unclear how well those witnesses truly knew him. “The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court,” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(quotation marks omitted), and here the record establishes that the court acted well

within its discretion in weighing the § 3553(a) factors as it did.

      The record shows that Frazier robbed at least four businesses, used a firearm

to threaten at least seven employees, and subjected those people to emotional

trauma that was detailed in victim impact statements. In light of that evidence, the

district court did not abuse its discretion in concluding that the need for deterrence

and punishment justified the upward variance that it imposed.

      AFFIRMED.




                                           6
