           Case: 19-12558   Date Filed: 06/30/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-12558
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:18-cr-00032-RH-MJF-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

RAVI BABU KOLLA,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 30, 2020)

Before MARTIN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Ravi Kolla appeals his 84-month sentence for conspiracy to commit

marriage fraud to defraud the United States and conspiracy to commit money

laundering. On appeal, he asserts that his above-guideline sentence was

substantively unreasonable because the district court (1) considered improper

factors, (2) placed undue weight on his false testimony, and (3) ignored mitigating

factors. After careful review, we affirm.

      We review the reasonableness of a sentence under the deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41

(2007). A defendant who challenges his sentence bears the burden of showing that

it is unreasonable considering the record and the factors enumerated in 18 U.S.C.

§ 3553(a). United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018). A

district court abuses its discretion when it fails to consider relevant factors that

were due significant weight, gives significant weight to improper or irrelevant

factors, or commits a clear error of judgment by balancing the proper factors

unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc). The district court must impose a sentence that is “sufficient, but not greater

than necessary, to comply with the purposes” listed in § 3553(a)(2), including the

need “to reflect the seriousness of the” crime, “promote respect for the law,”

“provide just punishment,” and “protect the public from” the defendant’s future

criminal conduct. 18 U.S.C. § 3553(a)(2)(A), (C); see also Irey, 612 F.3d at 1196.


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The district court must also consider “the nature and circumstances of the offense

and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).

        We have emphasized that we must give due deference to the district court’s

consideration and weighing of the proper sentencing factors. Shabazz, 887 F.3d

at 1224. Though the district court must consider all the § 3553(a) factors, it does

not have to address each factor explicitly at the sentencing hearing. United States

v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). The district court is not

required to weigh the factors equally, and it has discretion to attach greater weight

to one factor than another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254

(11th Cir. 2015). In addition to the § 3553(a) factors, the district court should

consider the particularized facts of the case and the guideline range. Id. at 1258–

60. But the district court retains discretion to give greater weight to any of the

§ 3553(a) factors, or combination of factors, than to the guideline range. Id. at

1259.

        The district court also “has wide discretion to decide whether the [§] 3553(a)

factors justify a variance” outside the guideline range. United States v. Rodriguez,

628 F.3d 1258, 1264 (11th Cir. 2010). Although sentences outside the Sentencing

Guidelines are not presumed to be unreasonable, we may take the degree of any

variance into account. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010).

“[A] major variance . . . require[s] a more significant justification than a minor


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one,” and “the justification [must] be sufficiently compelling to support the degree

of the variance.” Irey, 612 F.3d at 1196 (quotation omitted). But we must give

“deference to the district court’s decision that the § 3553(a) factors . . . justify the

extent of the variance.” Turner, 626 F.3d at 574 (quotation omitted). In imposing

an upward variance, the district court can rely on factors that it had previously

considered in imposing an enhancement. Rodriguez, 628 F.3d at 1264. Moreover,

a finding that the defendant lacked remorse and testified falsely is a valid basis for

an upward variance. See United States v. Feldman, 931 F.3d 1245, 1253, 1264

(11th Cir. 2019) (affirming a 100-month sentence as substantively reasonable,

despite a guideline range of 46 to 57 months, where the defendant lacked remorse

and committed perjury); see also United States v. Mateos, 623 F.3d 1350, 1367–68

(11th Cir. 2010) (affirming a major upward variance as substantively reasonable

based, in part, on the defendant’s lack of remorse and false testimony at trial).

      In determining whether the district court abused its discretion, we will not

reverse a sentence solely because we reasonably could conclude that a different

sentence was more appropriate. Gall, 552 U.S. at 51. Rather, we will vacate a

sentence “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.” Irey, 612 F.3d at 1190 (quotation omitted). And


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importantly, we have upheld upward variances matching the statutory maximum as

reasonable when necessary to achieve the purposes set out in § 3553(a). See

United States v. Osorio-Moreno, 814 F.3d 1282, 1286, 1288 (11th Cir. 2016)

(affirming an upward variance to the statutory maximum sentence as necessary to

achieve the goals of sentencing).

      Here, the district court did not abuse its discretion by varying upward

51 months from the high end of the guideline range and imposing an 84-month

sentence. First, the court properly relied on the number of fraudulent marriages

and Kolla’s profit from the scheme as grounds for varying upward. While the

Sentencing Guidelines generally account for the number of fraudulent marriages

and assume that the defendant engaged in the fraud for profit, the district court was

permitted to vary upward by relying on factors already accounted for in the

guideline range. See Rodriguez, 628 F.3d at 1264. The court correctly considered

the particularized facts of the case and acted within its discretion to emphasize “the

nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1); see also

Rosales-Bruno, 789 F.3d at 1259–60.

      Second, as to Kolla’s argument that the court improperly relied solely on his

false testimony in imposing the variance, the district court was entitled to rely on

Kolla’s lack of candor in varying upward. See Feldman, 931 F.3d at 1264.

Moreover, and in any event, the court did not rely solely on this factor in deciding


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to vary upward. Rather, the court explained that the variance was based on Kolla’s

lack of candor and remorse, the nature and circumstances of the offense,

deterrence, promoting respect for the law, and the seriousness of the crime, in

addition to his willfully false testimony.

      Finally, contrary to Kolla’s assertion, the district court recognized mitigating

factors, including Kolla’s lack of criminal history and letters written in support of

him, but nevertheless concluded that a sentence within the guideline range would

not sufficiently achieve the purposes that underlie § 3553(a).

      In sum, the district court did not abuse its discretion in imposing an upward

variance, as it appropriately considered all the applicable § 3553(a) factors, did not

give inordinate weight to certain factors or ignore others, and properly concluded

that an upward variance was appropriate given the nature and circumstances of

Kolla’s offenses, his lack of candor, lack of remorse, and willful false testimony.

Accordingly, we affirm.

      AFFIRMED.




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