                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                       MARCH 6, 2012
                                            No. 11-14270
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                           D.C. Docket No. 6:11-cr-00007-BAE-GRS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                             versus

MARION J. WEAVER, JR.,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                           (March 6, 2012)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
      Marion Weaver, who was convicted of passing counterfeit securities of

corporations and organizations, appeals his 24-month prison sentence, contending

that his sentence is procedurally and substantively unreasonable.

                                         I.

      Weaver participated in a fraudulent check cashing scheme. His role was to

cash fraudulent checks and give the proceeds to the people running the scheme.

Those people paid Weaver $500 for serving as the “final link” in their plan. After

Georgia authorities arrested Weaver on unrelated charges, a federal grand jury

indicted him on one count of passing counterfeit securities of corporations and

organizations in violation of 18 U.S.C. § 513. He pleaded guilty to that charge.

      The presentence investigation report recommended a base offense level of 6

and added 2 levels because the intended loss from the scheme was $6,923.40.

Subtracting 2 levels for acceptance of responsibility, Weaver’s total offense level

was 6. The PSR recounted Weaver’s extensive criminal history, which included

three convictions for possession of cocaine, two convictions for public

drunkenness, two convictions for theft, two convictions for criminal trespass, and

one conviction for criminal damage to property. The PSR recommended a

criminal history category of III, which yielded a guidelines range of 2–8 months

imprisonment when combined with Weaver’s total offense level. The statutory

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maximum was 120 months imprisonment. See 18 U.S.C. § 513.

      After Weaver did not object to the PSR, the court adopted the PSR’s

findings. Weaver and the government then argued for a within-the-guidelines

prison sentence. The court varied upward and sentenced Weaver to 24 months

imprisonment. The court found that the upward variance was necessary because

Weaver had a long history of committing crimes, receiving lenient sentences,

spending minimal time in jail, and violating probation. The court reasoned:

      Well, when he is out, he is committing crimes, and I will not be able
      to stop him from committing crimes. He will go back and commit
      more crimes, fraud, bad checks, counterfeit, drugs. So the only
      protection I can give the public is when he is in jail he at least is not
      committing crime. . . . And the guidelines simply do not address this
      type of behavior, the history that he has compiled and the
      characteristics that he has indicated. . . . He would have defrauded as
      many businesses as possible by passing fraudulent checks.

The court also said that Weaver was the “final link” in a plan that was “destructive

of trust in the banking systems” and that it intended the sentence to “provide

deterrence for some future criminal conduct by this defendant.”

                                         II.

      Weaver contends that his 24-month prison sentence is procedurally

unreasonable, arguing that the district court imposed that sentence based

exclusively on his criminal history and personal characteristics, instead of on a



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consideration of all § 3553(a) factors, and that it failed to adequately explain the

upward variance. He also contends that his sentence is substantively

unreasonable, arguing that the district court improperly balanced the § 3553(a)

factors by placing undue weight on his criminal history and characteristics and

that the sentence created an unwarranted disparity between Weaver and the

“countless, similarly situated defendants, who are and have been sentenced within

the guideline range.”

      We apply an abuse of discretion standard in reviewing a sentence. United

States v. White, 663 F.3d 1207, 1215 (11th Cir. 2011). We first ensure that the

district court committed no significant procedural error, such as failing to consider

the relevant § 3553(a) factors or failing to adequately explain an upward variance

from the guidelines range. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.

2009). If the sentence is not procedurally unreasonable, we determine whether it

is substantively reasonable. White, 663 F.3d at 1215.

      Our substantive reasonableness review is guided by the factors in 18 U.S.C.

§ 3553(a). Id. at 1217. The district court is required to impose a sentence that is

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

that statutory provision. 18 U.S.C. § 3553(a). Those purposes include the need to

reflect the seriousness of the offense, promote respect for the law, provide just

                                          4
punishment of the offense, deter criminal conduct, protect the public from the

defendant’s future criminal conduct, and provide the defendant with needed

educational or vocational training or medical care. Id. § 3553(a)(2). Among other

factors, the district court must also consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the applicable guidelines

range, and the need to avoid unwarranted sentencing disparities. See id. §

3553(a)(1), (4), (6).

      The burden of establishing that a sentence is unreasonable lies with the

party challenging it. White, 663 F.3d at 1217. We will vacate a sentence for

substantive 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.” United States v. Irey, 612

F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted).

      The district court did not commit procedural error in imposing Weaver’s 24-

month prison sentence. The record establishes that the court adequately explained

its decision to impose an upward variance from the guidelines range and that it

properly considered the § 3553(a) factors. Although the court did not explicitly

state that it had considered each of those factors, it did explicitly base the prison

                                           5
sentence on a consideration of the applicable guidelines range, the nature and

circumstances of the offense, Weaver’s history and characteristics, the need to

deter future criminal conduct, and the goal of protecting the public from Weaver’s

future criminal conduct. “A sentencing court is not required to incant the specific

language used in the guidelines or articulate its consideration of each individual §

3533(a) factor.” United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010)

(quotation marks omitted).

      Nor has Weaver demonstrated that his prison sentence is substantively

unreasonable. His sentence was well below the statutory maximum prison term of

120 months, see United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)

(holding that a defendant’s sentence was reasonable in part because it was well

below the statutory maximum), and the record establishes that the sentence takes

into account not only Weaver’s history and characteristics but also the other §

3553(a) factors. The court’s specific finding that the nature and circumstances of

the offense, Weaver’s history and characteristics, deterrence of criminal conduct,

and protecting the public from Weaver’s future criminal conduct justified an

upward variance from the guidelines range does not amount to an improper

balancing of the § 3553(a) factors and does not render the sentence substantively

unreasonable.

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AFFIRMED.




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