           Case: 14-11629   Date Filed: 01/21/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11629
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:10-cr-20335-UU-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

THERON PETERSON,

                                                         Defendant-Appellant.

                       ________________________

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

                            (January 21, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Theron Peterson appeals his above-guideline sentence of 24-months

imprisonment, imposed after the revocation of his supervised release. He first

argues that the district court erred by imposing an upward departure without notice.

He next argues that his sentence is procedurally and substantively unreasonable

because the district court neither considered the 18 U.S.C. § 3553(a) factors nor

gave him the opportunity to confront relevant facts that developed at the

sentencing hearing. After a thorough review of the record, we affirm.

                                           I.

      Peterson first argues that the district court erred by departing upward without

giving him the required notice. Peterson did not object to the district court’s

failure to provide notice. When a defendant does not object to a district court’s

ruling, we review it for plain error. United States v. Perez, 661 F.3d 568, 583

(11th Cir. 2011) (per curiam). Plain error exists if: “(1) an error occurred, (2) the

error was plain, (3) the error affected substantial rights in that it was prejudicial

and not harmless, and (4) the error seriously affected the fairness, integrity, or

public reputation of a judicial proceeding.” Id.

      At sentencing, Peterson presented a complementary letter from his

employer. Because the letter had not been verified, the district court recessed so

Peterson’s attorney could call the employer for verification. The employer said he

had not signed the letter. Peterson admitted to forging the signature, but stated that


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the contents of the letter were true and that he forged it only because he could not

reach his employer. After asking the probation officer for the maximum term of

imprisonment, the district court imposed the maximum of 24 months. It stated:

             And I do want the record to reflect that, of course, what swayed
      me here was the fact that I was given a letter which purported to be
      from the defendant’s supervisor, which actually appears to have been
      written by someone other than the supervisor and the supervisor’s
      name forged. In addition, it was represented to me through counsel at
      least that Mr. Peterson was employed when he hasn’t been employed
      since October 2013.
             So, for those reasons and because Mr. Peterson came in here
      and attempted to obstruct justice and because he violated the terms
      and conditions of his supervised release and he has a record longer
      than my arm, for all those reasons the maximum term is the most
      appropriate term.

      Federal Rule of Criminal Procedure 32, which governs “Sentencing and

Judgment,” provides: “Before the court may depart from the applicable sentencing

range on a ground not identified for departure either in the presentence report or in

a party’s prehearing submission, the court must give the parties reasonable notice

that it is contemplating such a departure.” Fed. R. Crim. P. 32(h). It further

provides: “At sentencing, the court . . . must allow the parties’ attorneys to

comment on the probation officer’s determinations and other matters relating to an

appropriate sentence.” Id. 32(i)(1) & (1)(C). The Supreme Court has held that the




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notice requirement applies only to departures, not to variances. Irizarry v. United

States, 553 U.S. 708, 714–16, 128 S. Ct. 2198, 2202–04 (2008).1

       The Supreme Court has defined “departure” as “a term of art under the

Guidelines”: it “refers only to non-Guidelines sentences imposed under the

framework set out in the Guidelines.” Id. at 714, 128 S. Ct. at 2202. To determine

whether the district court applied a departure or a variance, we consider (1)

“whether the district court cited to a specific Guideline departure provision” and

(2) whether “the court’s rationale was based on its determination that the

Guidelines were inadequate.” United States v. Kapordelis, 569 F.3d 1291, 1316

(11th Cir. 2009). In Kapordelis we held that a court imposed a variance, not a

departure, because it did not cite to a specific departure provision and its rationale

was based on the § 3553(a) factors and a finding that the Guidelines were

inadequate. Id.

       The district court did not plainly impose a departure here. It did not cite to a

specific departure provision, and the record reflects that its decision was based on

the § 3553(a) factors.2 Because the sentence was not plainly a departure, it was not

plain error to vary upward without giving notice.



1
 Furthermore, Rule 32.1, which governs “Revoking or Modifying Probation or Supervised
Release,” does not require a court to give notice that it is contemplating a departure or variance.
2
 While the district court did mention obstruction of justice, and the Guidelines do provide an
enhancement for obstruction of justice, see United States Sentencing Guideline § 3C1.1, this did
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                                                II.

       Peterson also argues the sentence was procedurally or substantively

unreasonable. We review a sentence imposed upon revocation of supervised

release for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248,

1252 (11th Cir. 2008) (per curiam). We review reasonableness for abuse of

discretion. Gall v. United States, 552 U.S. 38, 40–41, 128 S. Ct. 586, 591 (2007).

We “first ensure that the district court committed no significant procedural error,

such as . . . improperly calculating . . . the Guidelines range, . . . failing to consider

the § 3553(a) factors, . . . or failing to adequately explain the chosen sentence.” Id.

at 51, 128 S. Ct. at 597. We then ask whether the sentence was substantively

reasonable in light of the totality of the circumstances. Id. The party challenging

the sentence must show unreasonableness. United States v. Tome, 611 F.3d 1371,

1378 (11th Cir. 2010).

       When imposing a sentence of imprisonment upon revocation of supervised

release, the district court may consider: (1) the nature and circumstances of the

offense and the defendant’s history and characteristics; (2) affording adequate

deterrence; (3) protecting the public from further crimes of the defendant; (4)

providing the defendant with needed educational or vocational training, medical



not amount to a departure for two reasons: the court did not specifically refer to that Guidelines
section, and that section only provides for an enhancement, not a departure.

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care, or other correctional treatment in the most effective manner; (5) the kinds of

sentences available and the Guidelines range; (6) the Sentencing Commission’s

pertinent policy statements; (7) avoiding unwarranted sentencing disparities; and

(8) providing restitution to any victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D),

(a)(4)–(7); see also id. § 3583(e).

      A court can abuse its discretion if 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.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quotation omitted). A court “commits a clear error of

judgment when it considers the proper factors but balances them unreasonably.”

Id. The court need not state on the record that it has considered each of the

§ 3553(a) factors or discuss each of the factors. United States v. Scott, 426 F.3d

1324, 1329 (11th Cir. 2005). Even if the court does not mention § 3553(a), the

record can show that it considered the § 3553(a) factors. See United States v.

Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (holding that a district court

considered the sentencing factors despite not mentioning § 3553(a), because the

court considered: the defendant’s unlawful conduct, his objections, his motion for a

downward departure, his criminal history, the parties’ arguments, the advisory

Guidelines range, and the PSR).


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      When a court imposes a sentence outside the Guidelines range, it must

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

variance. Gall, 552 U.S. at 50, 128 S. Ct. at 597. We have found no abuse of

discretion where a sentencing court imposes an upward variance based on its view

that the criminal-history category as calculated by the Guidelines does not

accurately reflect the defendant’s criminal history. See United States v. Shaw, 560

F.3d 1230, 1240–41 (11th Cir. 2009). We give due deference to a district court’s

decision that the § 3553(a) factors justify a variance. Gall, 552 U.S. at 51, 128 S.

Ct. at 597. We may vacate a sentence for a variance only if we have “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.” Shaw, 560 F.3d at 1238

(quotation omitted).

      Peterson’s 24-month sentence was procedurally and substantively

reasonable. The district court adopted the probation officer’s calculation of the

Guidelines range and justified the sentence by stating that it had “carefully

considered the statements of the parties and the information contained in the

violation report.” Based on Peterson’s dishonest conduct and his lengthy criminal

history, the court decided to impose a sentence above the Guidelines range. The

record reflects that the court properly weighed and considered the relevant


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sentencing factors—including Peterson’s history and characteristics, the need to

deter criminal conduct, the kinds of sentences available and the Guidelines range—

and imposed a sentence that was supported by the record and met the goals

encompassed within § 3553(a).

      AFFIRMED.




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