            Case: 18-11094   Date Filed: 01/28/2019   Page: 1 of 7


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT


                              No. 18-11094
                          Non-Argument Calendar


                   D.C. Docket No. 9:17-cr-80153-RLR-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

RYAN DANIEL WEBMAN,

                                                           Defendant-Appellant.



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


                             (January 28, 2019)

Before TJOFLAT, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:

     Ryan Webman appeals his 110-month sentence. He argues that his above-
                Case: 18-11094     Date Filed: 01/28/2019    Page: 2 of 7


guideline sentence was substantively unreasonable because the district court

improperly considered prohibited evidence, such as prior criminal history and facts

already assessed in the guideline range, and gave too much weight to certain

sentencing factors, including the seriousness of the offense, the need to promote

respect for the law, and the need to protect the public from further crimes of the

defendant, over his mitigating factors. After careful consideration, we now affirm.

      Webman pled guilty to one count of bank robbery, in violation of 18 U.S.C. §

2113(a). According to the factual proffer to which he stipulated, Webman gave the

bank teller a deposit slip on which he had written that he was robbing the bank, he did

not want any dye packs, and he had put a bomb under a car outside the bank. The

teller, in fear for her life, gave Weman the money from her teller drawer, and Webman

fled. Based on this conduct and Webman’s criminal history, the district court

concluded, and Webman agreed, that his total offense level was 21, his criminal-

history category was VI, and his guidelines range was 77 to 96 months’ imprisonment.

      At sentencing, Webman sought a downward variance from the guideline range

to 60 months’ imprisonment based on his personal circumstances, involving, among

other matters, the recent death of his wife, as well as the prior deaths of his infant son

and his father. For its part, the government sought an upward departure or, in the

alternative, an upward variance from the guideline range based on Webman’s criminal

history.

      The district court announced that it considered all of the § 3553(a) factors and,
                                            2
                Case: 18-11094      Date Filed: 01/28/2019    Page: 3 of 7


though it declined to depart from the guidelines, it stated that it would vary from the

guidelines to a sentence of 110 months. In explaining the basis for this variance, the

district court described the nature of the offense as “very serious” and likewise found

Webman’s criminal history to be “very serious.” The court noted that Webman has

been convicted of seventeen offenses as an adult and that many of his convictions and

arrests have involved violent conduct.

      In particular, the district court recounted Webman’s conviction for aggravated

battery with a deadly weapon, which concerned a road-rage incident; a conviction for

disorderly conduct for threatening to shoot the occupants of a residence; battery for

spitting in an officer’s face and threatening to kill the officer and the officer’s children

when he was released from jail; and aggravated battery and aggravated assault with a

deadly weapon. The district court also noted Webman’s multiple convictions for

drug-related offenses, as well as the fact that he committed violations while on

probation. In addition, the district court expressed concern over Webman’s multiple

convictions that it found demonstrated disrespect for the law and law-enforcement

officers. The court stated that it needed to protect the public from further crimes of

the defendant and noted Webman had been committing these crimes as an adult for

almost 20 years. Although the district court expressly considered Webman’s difficult

personal circumstances, it nonetheless concluded that, in light of the rest of the record,

they did not justify a downward variance and could not excuse his lengthy criminal

history and the danger he represented to the public.
                                             3
                Case: 18-11094      Date Filed: 01/28/2019    Page: 4 of 7


      We review the substantive reasonableness of a sentence under the deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41 (2007).

The party challenging the sentence has the burden of demonstrating that it is

unreasonable in light of the record and the sentencing factors. United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008).

      We look at whether the sentence is substantively reasonable under the totality

of the circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

A sentence outside the guideline range is not presumptively unreasonable, and

extraordinary circumstances are not required to justify a variance. Gall, 522 U.S. at

47, 51. A district court can rely on factors in imposing a variance that it had already

considered in imposing an enhancement under the guidelines. United States v.

Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).

      We further recognize that a departure and a variance are distinct. United States

v. Izizarry, 458 F.3d 1208, 1212 (11th Cir. 2006). When a district court departs, it

cannot consider grounds adequately taken into account by the guidelines; however,

district courts are not bound by those same rules when they vary a sentence based on

the § 3553(a) factors. Compare United States v. Pressley, 345 F.3d 1205, 1210-11

(11th Cir. 2003) (stating that a district court lacks authority to depart in a case in which

the proposed ground for departure was already taken into account by the guidelines),

with United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (district court used

defendant’s criminal history as factual foundation to justify an upward variance of
                                             4
               Case: 18-11094     Date Filed: 01/28/2019    Page: 5 of 7


defendant’s sentence). Specifically, a sentencing court may upwardly vary a sentence

when it determines that the guideline range is insufficient in light of the defendant’s

criminal history and the § 3553(a) factors. United States v. Sanchez, 586 F.3d 918,

936 (11th Cir. 2009).

      A district court must impose a sentence “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 offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing its sentence,

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

history and characteristics of the defendant, the kinds of sentences available, and the

applicable guideline range. § 3553(a)(1), (3)-(4).

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

sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743 (11th

Cir. 2007). A district court need not explicitly consider each of the sentencing factors;

rather, an acknowledgement that it considered the factors will generally suffice.

United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). A district court,

however, 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 Cir. 2010) (en banc). We
                                           5
               Case: 18-11094     Date Filed: 01/28/2019   Page: 6 of 7


will remand 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. Id. at

1190. District courts only consider the need to avoid sentencing disparities when they

can identify a specific defendant with a similar record convicted of the same or similar

crime. See United States v. McQueen, 727 F.3d 1144, 1159-60 (11th Cir. 2013).

Further, a district court cannot impose or lengthen a prison term for rehabilitation

purposes; conversely, the court commits no error by discussing rehabilitation

opportunities within the prison system. United States v. Tapia, 564 U.S. 319, 326-27,

334 (2011).

      We further note that a sentence well below the statutory maximum penalty is an

indication of reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008).

      Here, the district court did not abuse its discretion by imposing an above-

guideline 110-month sentence because it considered the totality of the circumstances,

including Webman’s peculiar history and characteristics, the seriousness of the

offense, and the needs to promote respect for the law and protect the public from

further crimes. The district court made clear that the 110-month sentence was an

upward variance, not an upward departure, and could therefore properly consider

information such as Webman’s juvenile and arrest records—though the district court’s

statements at sentencing show that it relied almost exclusively on Webman’s adult


                                           6
               Case: 18-11094     Date Filed: 01/28/2019   Page: 7 of 7


convictions when it explained the basis for the variance imposed. Furthermore, the

district court could properly vary upward based on the seriousness of the offense, even

if that was already factored into the guideline range. We find no legal error and no

abuse of discretion.

      AFFIRMED.




                                           7
