                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                    FILED
                                                                       U.S. COURT OF APPEALS
                                            No. 11-11397                 ELEVENTH CIRCUIT
                                        Non-Argument Calendar               JANUARY 4, 2012
                                      ________________________                JOHN LEY
                                                                               CLERK
                               D.C. Docket No. 1:09-cr-20077-JLK-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                        lPlaintiff - Appellee,

                                                versus

RAMON SANTOS,

llllllllllllllllllllllllllllllllllllllll                       Defendant - Appellant.

                                     ________________________

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

                                           (January 4, 2012)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Ramon Santos was found guilty by a jury for conspiring to commit health
care fraud, in violation of 18 U.S.C. § 1349; committing health care fraud, in

violation of 18 U.S.C. § 1347; and obstructing justice, in violation of 18 U.S.C. §

1503. He was sentenced to 108 months’ imprisonment. Santos appeals his

sentence and argues that it is substantively unreasonable because the district court

(1) erroneously concluded that the sentence disparity between Santos and his co-

defendants was already taken into account by the sentencing guidelines, and (2)

failed to take into consideration his post-sentencing rehabilitation. After review,

we affirm.

                                         I.

      Santos was charged, along with three co-conspirators, with conspiracy to

commit health care fraud and health care fraud. Santos was also charged with

obstruction of justice. Santos’s co-conspirators each pleaded guilty and received

sentences ranging from 38 (after a reduction for substantial assistance) to 100

months’ imprisonment. Only Santos proceeded to trial, where he was convicted.

      Before sentencing, a probation officer prepared Santos’s presentence

investigation report (PSI) and assigned Santos a guideline range of 108 to 135

months’ imprisonment. At the sentencing hearing, Santos requested a downward

variance from the guideline range, citing the need to avoid sentencing disparities

among the co-conspirators. He argued that it was inconsistent with 18 U.S.C. §

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3553(a)1 for him to receive a sentence greater than those of his co-conspirators

simply because he went to trial. The district court adopted the PSI’s guideline

range and denied Santos’s request for a downward variance, stating:

       I do not believe that it is of any, except casual interest, relevance, as to
       what some other judge on this court thinks . . . was fair and reasonable
       for someone that was also involved in this massive fraud . . . . The
       sentencing guidelines commission takes into account all of those [§
       3553(a)] factors on a nationwide basis and they have concluded that it
       is a reasonable guideline range of 108 to 135 months.

The district court imposed a 108-month sentence, stating that the other § 3553(a)

factors “overwhelmingly sustain the guideline range; that is, the need to reflect the

seriousness of this offense.”

       Santos appealed, arguing that the district court failed to allow him to

allocute and failed to consider the disparity between his sentence and those of his

co-conspirators. In that appeal, we held that the district court erred in failing to

allow Santos to allocute, and we remanded the case for re-sentencing but declined




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          Section 3553(a) requires the district court to consider at sentencing: (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 educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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to decide the reasonableness of Santos’s sentence at that time.2

      At his re-sentencing hearing, Santos stated during his allocution that he had

learned during his incarceration how to understand, acknowledge, and feel

remorse for mistakes. He also stated that his religion helped him to forgive and

“get rid of hate.” Santos argued that his statement evidenced post-sentencing

rehabilitation that warranted a downward variance from the original sentence. The

district court declined to issue a variance, stating, “I have not heard anything here

that changes anything about the seriousness of this crime that he committed and

his responsibility for it.” When Santos renewed his disparity argument, the court

adhered to its analysis from the original sentencing hearing. The court again

sentenced Santos to 108 months’ imprisonment.

                                                II.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district

court abuses its discretion when 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


      2
          United States v. Santos, 397 F. App’x 583 (11th Cir. 2010).

                                                4
Cir. 2010) (en banc). The party challenging a sentence bears the burden of

establishing that the sentence was unreasonable based on the record and the

§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

                                          III.

      We conclude that the district court’s sentence was not unreasonable. The

district court expressly considered and weighed the § 3553(a) factors and

determined that the seriousness of the offense warranted the sentence imposed.

Santos contends that the district court erred in concluding that the guidelines took

into account concerns about sentencing disparities and argues that he should have

received a sentence closer to that of his co-conspirators. “As with the seriousness

of the offense conduct, avoidance of unwarranted disparities was clearly

considered by the Sentencing Commission when setting the Guidelines ranges.”

Gall, 552 U.S. at 54. Just as the district court did in Gall, the district court here

“carefully calculated and reviewed the Guidelines range.” Id. Thus, it

“necessarily gave significant weight and consideration to the need to avoid

unwarranted disparities.” Id. Accordingly, the district court did not abuse its

discretion in relying on the guidelines ranges to account for disparities in

sentencing.

      The district court also did not abuse its discretion in declining to grant

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Santos a downward variance based on his post-sentence rehabilitation. The

Supreme Court recently held that “when a defendant’s sentence has been set aside

on appeal, a district court at re-sentencing may consider evidence of the

defendant’s postsentencing rehabilitation and that such evidence may, in

appropriate cases, support a downward variance from the now-advisory Federal

Sentencing Guidelines range.” Pepper v. United States, 131 S. Ct. 1229, 1236

(2011). But Pepper merely permits, and does not require, the district court to

grant a downward variance if a defendant provides evidence of rehabilitation.

Thus, the district court did not abuse its discretion in finding that any

rehabilitation Santos experienced before his re-sentencing did not affect the

court’s calculation of an appropriate sentence.

                                          III.

      Because we conclude that the district court did not abuse its discretion when

it sentenced Santos to 108 months’ imprisonment, the sentence is

AFFIRMED.




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