                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               June 27, 2007
                               No. 06-12241                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-60315-CR-FAM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

EVARISTO YANEZ-CORBO,
a.k.a. Roberto Nunez,

                                                           Defendant-Appellant.


                         ________________________

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

                               (June 27, 2007)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     Evaristo Yanez-Corbo appeals his 42-month sentence for use and traffic in
one or more counterfeit devices in violation of 18 U.S.C. § 1029(a)(1), use of one

or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2), and

possession of 19 counterfeit credit cards in violation of 18 U.S.C. § 1029(a)(3). At

the sentencing hearing, the district court calculated Yanez-Corbo’s total adjusted

offense level at 12, with a Criminal History Category of III. As a result, Yanez-

Corbo was subject to a sentencing range of 15-21 months under the Sentencing

Guidelines. Nevertheless, the district court varied from the Guidelines and

sentenced Yanez-Corbo to 42 months’ imprisonment.

      On appeal, Yanez-Corbo argues that his sentence was unreasonable because

it did not comply with the principles set forth in United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). First, he argues that the district

court’s sentence was not consistent with 18 U.S.C. § 3553(a) because the court

placed disproportionate weight on Yanez-Corbo’s criminal history, which, apart

from an attempted bombing offense, involved relatively minor offenses that took

place over thirty years ago. Second, he argues that the district court’s upward

variance under § 3553(a) was “in effect” an upward departure for

underrepresentation of his criminal history under the Guidelines, see U.S.S.G.

§ 4A1.3 (2005), imposed without following the procedural requirements for

granting an upward departure. Third, he argues that the district court did not



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sufficiently elicit objections at the conclusion of sentencing because the court

merely asked if there were objections as to reasonableness but did not ask if there

were objections to the sentence or the manner in which it was imposed as required

by United States v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other

grounds sub. nom. United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en

banc).

         We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

Our review for reasonableness is deferential. United States v. Thomas, 446 F.3d

1348, 1351 (11th Cir. 2006). We consider the factors outlined in 18 U.S.C.

§ 3553(a), and the district court’s reasons for imposing the particular sentence.

United States v. Williams, 456 F.3d 1353, 1360-61 (11th Cir. 2006), pet. for cert.

filed, (U.S. Oct. 19, 2006) (No. 06-7352). The § 3553(a) factors take into account:

         (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). “[T]here is a range of

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reasonable sentences from which the district court may choose[,]” and the burden

of establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors lies with the party challenging the sentence. (Id. at 788). “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court[,]” and this Court will not “substitute [its]

judgment in weighing the relevant factors because [its] review is not de novo.”

Williams, 456 F.3d at 1363 (citation and quotation marks omitted).

      When reviewing the length of a sentence for reasonableness, [this
      Court] will remand for resentencing if [it is] 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.). Here, the district court considered the § 3553(a) factors. In its discussion,

the district court particularly emphasized the possibility of recidivism and Yanez-

Corbo’s prior criminal history. The district court also stated that “a sentence

longer than the guidelines would promote respect for the law.” While the district

court did not expressly discuss each of the § 3553(a) factors, “nothing in Booker or

elsewhere 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 did not clearly err by emphasizing one factor, Yanez-Corbo’s prior

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criminal history, because “[t]he weight to be accorded any given § 3553(a) factor is

a matter committed to the sound discretion of the district court.” Williams, 456

F.3d at 1363. Furthermore, the record shows that Yanez-Corbo has an extensive

history of criminal behavior, which includes, but is not limited to, drug-related

offenses, an attempted bombing, and larceny.1

       Nor did the district court err when it imposed a sentence outside the

Guidelines range without following the requisite procedures for an upward

departure under U.S.S.G. § 4A1.3 (2005). Because Yanez-Corbo did not raise this

argument below, we review it for plain error. See United States v. Raad, 406 F.3d

1322, 1323 (11th Cir.), cert. denied, 126 S.Ct. 196 (2005). We have already

considered and rejected the argument that the district court’s election of an upward

variance over an upward departure–and the fewer procedural requirements entailed

by such a choice–amounts to plain error. See United States v. Moton, No. 06-

14435, slip op. at 7-11 (11th Cir. April 4, 2007) (unpublished). We did so in light

of our decision in United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006), where

we held that the advance notice for upward departures required by Rule 32(h) of

the Federal Rules of Criminal Procedure need not be given when the district court



       1
         The district court’s reference to an “auto theft” when discussing Yanez-Corbo’s
criminal history at the sentencing hearing did not render the sentence unreasonable. Although
Yanez-Corbo was never convicted of auto theft, he was convicted of possession of a stolen car.

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chooses to impose an upward variance under § 3553(a). Id. at 1212. As we noted

in Moton, accepting the argument that district courts must always choose guided

departures over § 3553(a) variances is inconsistent with Irizarry: because any

circumstance “relevant to determining the appropriate sentence” may be used to

justify a departure, U.S.S.G. § 5K2.0(a)(2)(A), a departure may always be used in

place of a variance, and thus the procedures for departures would be required in

every case. Irizarry clearly does not contemplate such a result. Given this

inconsistency, any error from failing to follow the Guidelines procedures before

imposing the variance could not be plain. See United States v. White, 416 F.3d

1313, 1319 (11th Cir.2005) (“An error cannot meet the ‘plain’ requirement of the

plain error rule if it is not clear under current law.” (internal quotation omitted)).

      Yanez-Corbo’s argument that the district court failed to elicit objections

apart from those having to do with the reasonableness of the sentence is

contradicted by the record. Yanez-Corbo relies on Jones, in which this Court

required district courts to provide an opportunity for the parties to “object to the

district court’s ultimate findings of fact and conclusions of law and to the manner

in which the sentence is pronounced.” 889 F.2d at 1102. Yanez-Corbo is incorrect

in his assertion that the district court “asked merely if the defendant objected to the

reasonableness of the sentence.” After asking if there were objections to



                                            6
reasonableness, the district court asked, “Any objection from the defense?”

Yanez-Corbo’s trial counsel then responded, “Other than the reasonableness of it,

no.” As is clear from this exchange, the district court provided an opportunity for

Yanez-Corbo to raise objections, an opportunity he declined. There was no error.

      Finally, we note that the statutory maximum penalty for each of Yanez-

Corbo’s offenses is 10 years’ imprisonment, and the district court was bound only

by the ceiling imposed by the statute. 18 U.S.C. § 1029(c)(1)(A)(i); United States

v. Duncan, 400 F.3d 1297, 1308 (11th Cir. 2005) (recognizing that the statutory

maximum sentence, not the guideline sentence, is the maximum sentence permitted

by law). Yanez-Corbo’s total sentence of 42 months’ imprisonment is far less than

the statutory maximum he could have received for each of his offenses. Upon

review of the record and the parties’ brief on appeal, there is no evidence that the

district court committed a clear error of judgment in applying the § 3553(a) factors.

Yanez-Corbo’s sentence was reasonable and, accordingly, we affirm.

      AFFIRMED.




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