                                                        [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                     FOR THE ELEVENTH CIRCUIT  U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     MAY 28, 2008
                            No. 07-15020          THOMAS K. KAHN
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 07-00004-CR-T-N

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

JONATHAN KEITH THOMAS,

                                                   Defendant-Appellant.

                       ________________________

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

                              (May 28, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Jonathan Thomas appeals his 72-month sentence imposed after pleading
guilty to one count of possession of a 9mm firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). On appeal, Thomas argues that (1) the district

court violated his due process rights when it imposed the upward variance based,

in part, on hearsay or unreliable testimony concerning an uncharged offense that

did not qualify as relevant conduct under the Guidelines, and (2) his sentence is

procedurally or substantively unreasonable.1 After a thorough review of the

record, we affirm.

                                                I.

       In January 2007, Thomas was indicted for possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g). The firearm

at issue in the indictment was a 38 caliber revolver. In May 2007, the government

filed a felony information charging Thomas with possession of a firearm by a

convicted felon, which carried a statutory maximum sentence of ten years’

imprisonment. The firearm at issue in the information was a 9mm pistol. Pursuant

to a written plea agreement, Thomas pleaded guilty to the information, admitting

that he possessed a 9mm pistol. In exchange, the government agreed to dismiss

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         Thomas also argues that his due process rights were violated when the district court
found that he committed the armed robbery with a Colt .38 revolver, even though the government
had not yet presented all of its evidence to establish those facts. We reject this argument, as the
record demonstrates that the court did not impose sentence until after a second sentencing
hearing in which the government presented additional corroborating testimony from the victim of
the armed robbery and witnesses to that offense.

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the indictment and recommend a sentence at the low end of the guidelines range.

The court accepted Thomas’s plea.

      The PSI calculated the guidelines range as 57 to 71 months’ imprisonment,

based in part on an enhancement for discharging a firearm. This enhancement

involved the use of the 38 caliber revolver to commit a robbery and shoot at the

victim.

      At the sentencing hearing, the government called an ATF agent to testify

that Thomas used the 38 caliber to rob a man named Clarence McMeans.

According to the agent, Thomas approached McMeans, a drug dealer, pointed the

38 caliber weapon at McMeans, and demanded drugs, money, and McMeans’s cell

phone. After McMeans complied and started to drive away, Thomas fired three

shots into McMeans’s car. The ATF agent had no direct knowledge of the events

and testified based on what she had been told by local investigators. The court

determined that it could not apply an enhancement for discharging the 38 caliber

firearm or consider the incident as relevant conduct under the guidelines, but that

it could be considered under the sentencing factors of 18 U.S.C. § 3553(a) as the

court was “absolutely” certain that Thomas committed the robbery using the 38

caliber pistol on the same day he had possessed the 9mm firearm. Thomas

objected to the use of this uncharged, non-relevant conduct to increase his

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sentence, noting that the evidence presented was based on unreliable hearsay. The

court then continued the sentencing hearing to enable the government to present

additional evidence and warned Thomas that it was considering a sentence well

above the advisory guidelines range in light of this conduct.

      At the second sentencing hearing, the government presented testimony from

the local investigator, McMeans, and several witnesses to the robbery. Thomas

was given the opportunity to cross-examine each witness and challenge their

credibility. After hearing the evidence, the court concluded that the government

had established “beyond a reasonable doubt” that Thomas used a 38 caliber gun to

rob McMeans. In light of the court’s findings, the guidelines range was 30 to 37

months’ imprisonment. Per the terms of the plea agreement, the government

recommended a sentence of 30 months. The probation officer recommended a

sentence of 72 months’ imprisonment based on Thomas’s history and criminal

record, the need to deter future crimes, and the need to protect the public.

      Defense counsel then objected to the government’s failure to recommend an

additional one-point reduction for acceptance of responsibility as outlined in the

plea agreement. After discussing the issue, the court applied the reduction,

making the guidelines range 27 to 33 months’ imprisonment.

      The court then considered the § 3553(a) factors, concluding that Thomas’s

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conduct - the possession of the 38 caliber gun and the robbery - was not

adequately taken into consideration in the guidelines range. The court addressed

the nature and circumstances of the offense, Thomas’s history and characteristics,

Thomas’s violent history, the seriousness of the offense and the need to promote

respect for the laws, protect the public, and deter future crimes. The court

concluded that a sentence of 72 months’ imprisonment was sufficient but not

greater than necessary to meet these goals. Thomas now appeals.

                                         II.

      We review de novo constitutional challenges to a sentence. United States

v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).

      The Fifth Amendment to the U.S. Constitution prohibits a person from

being deprived of life, liberty, or property without due process of law. U.S. Const.

amend. V. Due process, in the sentencing context, requires that the defendant “be

given adequate notice and an opportunity to contest the facts relied upon to

support his criminal penalty.” United States v. Satterfield, 743 F.2d 827, 840

(11th Cir. 1984). “The defendant need not, however, be accorded the same degree

of due process protections during the sentencing phase as was required at the

criminal trial.” Id. “The sole interest being protected is the right not to be

sentenced on the basis of invalid premises or inaccurate information.” Id. Thus,

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“[t]he degree of protection required is only that which is necessary to ensure that

the district court is sufficiently informed to enable it to exercise its sentencing

discretion in an enlightened manner.” Id.

      Judges may consider out-of-court information at sentencing as long as the

information is reliable and the defendant is given the opportunity to rebut it.

United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984). In determining the

reliability of hearsay, the court should consider whether the statement is

corroborated or contradicted by other evidence. Id. at 1169.

      To establish a due process violation based on the court’s reliance on false or

unreliable information, the defendant must show: “(1) that the challenged evidence

is materially false or unreliable, and (2) that it actually served as the basis for the

sentence.” Id. at 1167. If the defendant meets his burden, we will remand to the

district court for a new sentencing hearing. Id.

      Credibility findings are within the province of the factfinder. See United

States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004). Moreover, “‘[t]he fact

that a witness has consistently lied in the past, engaged in various criminal

activities, and though that his testimony would benefit him . . . does not make his

testimony incredible.’” United States v. Thompson, 422 F.3d 1285, 1291 (11th

Cir. 2005) (quoting United States v. Cravero, 530 F.2d 666, 670 (5th Cir. 1976)).

                                            6
“For testimony to be considered incredible as a matter of law, ‘it must be

unbelievable on its face, i.e., testimony as to facts that [the witness] could not have

possibly observed or events that could not have occurred under the laws of

nature.’” Id. (quoting United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.

1985)).

      The district court here did not violate Thomas’s due process rights in

relying on the government witnesses’ testimony at sentencing in order to find that

he engaged in criminal conduct other than the charged offense. First, to the extent

the district court relied on the ATF agent’s testimony, which was based on the

hearsay, Thomas’s due process rights were fully preserved. The hearsay

statements bore a “minimal indicia of reliability,” see Reme, 738 F.2d at 1167, as

they were consistent with the testimony of other government witnesses.

Moreover, Thomas had the opportunity to cross-examine all of the government

witnesses.

      Second, to the extent that the district court relied on the testimony of the

victim and the eyewitnesses, Thomas has not satisfied his burden of proving that

their testimony was materially false or unreliable so as to deny him due process.

The witnesses’ testimony was consistent on the dispositive point that Thomas

robbed McMeans while holding a 38 caliber revolver to his head and fired three

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shots at McMeans’s vehicle as he attempted to flee.

      Third, we will not disturb the district court’s credibility finding in favor of

the government witnesses over Thomas’s denial of ever possessing the 38 caliber

firearm.

      Finally, we note that even though the district court was only required to

make sentencing facts based on the “preponderance of the evidence” standard, it

decided unilaterally to use the beyond a “reasonable doubt” standard in order to

ensure that Thomas’s due process rights were fully protected. Even under this

heightened standard the court found that the government proved Thomas

committed the armed robbery with the 38 caliber revolver.

                                         III.

      Following United States v. Booker, 543 U.S. 220, 1125 S.Ct. 738,

160 L.Ed.2d 621 (2005), we review sentences for reasonableness. United States

v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). The Supreme Court recently

clarified that the reasonableness standard is synonymous with the abuse of

discretion standard. Gall v. United States, 552 U.S. __, 128 S.Ct. 587, 596, 169

L.Ed.2d 445 (2007).

      In imposing sentence, a district court first must correctly calculate a

defendant’s applicable advisory Guidelines range, and then must consider all of

                                          8
the factors outlined in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence.

Gall, 128 S.Ct. at 596-97. 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 afford adequate deterrence, to promote

respect for the law, to provide just punishment for the offense, to protect the

public, and to provide the defendant with needed educational or vocational

training or medical care; (3) the kinds of sentences available; (4) the Sentencing

Guidelines range; (5) pertinent Sentencing Commission policy statements; (6) the

need to avoid unwarranted sentencing disparities; and (7) the need to provide

restitution to victims. See 18 U.S.C. § 3553(a).

      If the court finds that a sentence outside of a defendant’s applicable

Guideline range is warranted, it “must consider the extent of the deviation and

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

variance.” Gall, 128 S.Ct. at 597. After deciding on the appropriate sentence, the

district court must sufficiently explain the chosen sentence to permit meaningful

appellate review and to promote the perception of fair sentencing. Id.

      Our review of a sentence imposed is two-fold. First, we must ensure that

the district court committed no significant procedural error. Second, we must

ensure that the sentence imposed by the district court was substantively

                                          9
reasonable. Id.

       A sentencing decision is procedurally sound if the district court correctly

calculated the defendant’s sentencing range, treated the Guidelines as advisory,

considered the § 3553(a) factors, selected a sentence that was not based on clearly

erroneous facts, and adequately explained the chosen sentence, including an

explanation for any deviation from the defendant’s sentencing range. Id.

       A sentencing decision is substantively reasonable if the district court acted

within its discretion in determining that the § 3553(a) factors supported the

sentence and justified any deviation from the defendant’s sentencing range. Id.

at 600. A “district court need only ‘acknowledge’ that it ‘considered the § 3553(a)

factors[,]’ and need not discuss each of these factors in either the sentencing

hearing or in the sentencing order[.]” United States v. Amedeo, 487 F.3d 823, 833

(11th Cir.), cert. denied, 128 S.Ct. 671 (2007) (internal citations omitted).

       In considering the substantive reasonableness of a sentence imposed, we

“will, of course, take into account the totality of the circumstances . . . [and] may

consider the extent of [any] deviation [or the degree of any variance], but must

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

whole, justify the extent of the [deviation or] variance.” Gall, 128 S.Ct. at 594-95,

597.

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      “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. Williams,

456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough

v. United States, 128 S.Ct. 558 (2007). We will not substitute our judgment for

that of the sentencing court as to the appropriateness of a particular sentence.

United States v. Melvin, 187 F.3d 1316, 1323 (11th Cir. 1999) (citation omitted)

(alteration in original). Thus, we will reverse a procedurally proper 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.” Williams, 456 F.3d at1363.

      Here, we conclude that Thomas’s sentence was procedurally sound. The

parties do not dispute that the district court properly calculated the guidelines

range. The record demonstrates that the court allowed Thomas to present

arguments as to why the probation officer’s recommendation of 72-months’

imprisonment was not reasonable, noted that the Guidelines were advisory,

considered the § 3553(a) factors, and thoroughly explained its reasoning for the

sentence imposed. Moreover, for the limited purpose of deciding this appeal, we

agree with the district court that information concerning Thomas’s involvement in

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the armed robbery, though uncharged and non-relevant criminal activity, could be

considered in imposing sentence under the following § 3553(a) factors: the

“history and characteristics of the defendant” and the need of a sentence to ?afford

adequate deterrence, . . . promote respect for the law, . . . [and] protect the public.”

      Thomas’s sentence was substantively reasonable as well. The record

demonstrates that the district court listened to the parties’ evidence and arguments

concerning a reasonable sentence, ultimately imposed a 72-month variant

sentence, and sufficiently explained the chosen variant sentence to permit

meaningful appellate review and to promote the perception of fair sentencing.

Specifically, the court explained that the sentence imposed was “sufficient but not

greater than necessary to comply with the statutory purposes of sentencing,” given

(1) the nature and circumstances of the offense; (2) Thomas’s history and

characteristics, specifically, that he was an “extremely violent man who shoots

into cars and who can kill people;” (3) the seriousness of the offense; (4) the need

to promote respect for the law; and (5) the need to afford adequate deterrence to

criminal conduct, and to protect the public from further crimes by Thomas. The

district court further stated that it believed any sentencing disparity was warranted,

and that the Guidelines did not adequately address Thomas’s conduct. In addition,

the 72-month sentence imposed was substantially less than the statutory maximum

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of 10 years’ imprisonment.

      Finally, even if Thomas is correct that the district court afforded more

weight to some § 3553(a) factors than it did to others, we have held that the weight

to be afforded to any particular factor “is a matter committed to the sound

discretion of the district court.” See Williams, 456 F.3d at 1363.

      In sum, we are not “left with the definite and firm conviction [on this

record] 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,” Williams, 456 F.3d at1363, and so we

AFFIRM Thomas’s 72-month sentence.




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