           Case: 12-10790   Date Filed: 03/25/2013   Page: 1 of 8

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-10790
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:11-cr-00235-SLB-RRA-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DARRYL COBB,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 25, 2013)

Before BARKETT, MARCUS and KRAVITCH , Circuit Judges.

PER CURIAM:
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      Darryl Cobb appeals his above-guideline sentence of 60 months, imposed

after he pleaded guilty to two counts of aiding and abetting mail fraud, in violation

of 18 U.S.C. §§ 1341, 1342. As part of his guilty plea, Cobb admitted to

committing three mortgage fraud transactions that resulted in him obtaining

$262,861 for properties he never owned. After calculating an advisory guidelines

sentence of 27 to 33 months of imprisonment, the district court granted the

government’s U.S.S.G. § 5K1.1 motion for downward departure based on Cobb’s

substantial assistance. However, it then found that the resulting guideline range of

24 to 30 months was inadequate in light of the 18 U.S.C. § 3553(a) factors,

emphasizing that the guideline range did not capture Cobb’s extensive criminal

history. As a result, it varied upwards from the guideline range and imposed a

sentence of 60 months. On appeal, Cobb argues that his sentence was both

procedurally and substantively unreasonable. We review the final sentence

imposed by the district court for reasonableness under the deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007).

                          I. Procedural Reasonableness

(A)   § 5K1.1 Downward Departure and § 3553(a) Upward Variance

      Cobb argues that, by imposing a downward departure under § 5K1.1 and

then varying upward based on the § 3553(a) factors, the court prevented him from

receiving any practical benefit from his substantial cooperation with the


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government, in contravention of the underlying principle of § 5K1.1 to promote

cooperation with the government.

      When reviewing a sentence for procedural reasonableness, we must first

ensure that the district court committed no significant procedural error, such as

improperly calculating the Guidelines range. Gall. at 51. Departures are part of the

process of applying the Guidelines. See United States v. Jordi, 418 F.3d 1212,

1215 (11th Cir. 2005) (holding that, if the district court fails to appropriately

consider any departures that are warranted, “it by necessity failed to properly

consider the guidelines”). After the district court has decided the length of a

departure under § 5K1.1, it must then “take into account the advisory Guidelines

range and the sentencing factors set forth in 18 U.S.C. § 3553(a) in fashioning a

reasonable sentence.” United States v. McVay, 447 F.3d 1348, 1356 (11th Cir.

2006) (citing United States v. Booker, 543 U.S. 220, 259-60 (2005)) (emphasis in

original).

      The district court in this case first granted the government’s § 5K1.1 motion,

then considered the advisory guideline range, found it inadequate, and imposed an

upward variance after considering the § 3553(a) factors. Thus, the court’s

procedure was reasonable. See McVay, 447 F.3d at 1356. Moreover, nothing in

the record shows that the court denied Cobb the benefit of the departure of the

§5k1.1 motion. The court noted that, before it realized the government had filed a


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§ 5K1.1 motion, it was considering imposing a six-year sentence. Thus, but for the

government’s motion, Cobb likely would have faced a sentence of six years (72

months), which was higher than the final sentence of 60 months that Cobb received

after the motion and the variance. The court also explicitly stated that it wanted to

give Cobb the benefit of the government’s motion, because otherwise it would hurt

the government’s chances of receiving cooperation. Thus, the court was mindful

of the purposes underlying substantial assistance motions and wanted to ensure that

such purposes were met. Accordingly, the sentence is procedurally reasonable in

this regard, as the district court did not improperly calculate the guideline range.

See Gall, 552 U.S. at 51.

(B)   Failure to Consider Upward Departure Under U.S.S.G. § 4A1.3

      Next, Cobb argues that his sentence is procedurally unreasonable because

the district court failed to consider an upward departure under U.S.S.G. § 4A1.3

before imposing an upward variance under § 3553(a). Cobb argues that the district

court began the upward departure process under § 4A1.3 when it asked the

probation officer to recalculate Cobb’s guideline range to include some of his prior

convictions that were not counted under the original guideline sentence but then

ultimately failed to complete the upward departure analysis. Cobb contends that

the district court’s aborted upward departure analysis followed by its imposition of

an upward variance made his sentence procedurally unreasonable.


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      However, we do not think that the district court ever began an upward

departure analysis under § 4A1.3. Although the district court used language similar

to that found in § 4A1.3, its comments were made as part of a larger § 3553(a)

analysis, namely the history and characteristics of the defendant. See 18 U.S.C.

§ 3553(a)(1). The court discussed Cobb’s criminal history alongside its

consideration of the nature and circumstances of the offense, the need to promote

respect for the law, provide just punishment, afford adequate deterrence to Cobb

and others, and protect the public from further crimes. 18 U.S.C. §§ 3553(a)(1),

(2)(A)-(C). Thus, by discussing Cobb’s criminal history in the context of imposing

an upward variance, the district court was not necessarily beginning the process of

conducting an upward departure analysis under § 4A1.3. Moreover, we have held

in an analogous context that the district court is not required to impose an

enhancement before imposing a variance. See United States v. Rodriguez, 628

F.3d 1258, 1264 (11th Cir. 2010) (affirming the district court’s decision to vary

upward under § 3553(a) based on multiple victims involved in the offense, and

rejecting the argument that the court should have first considered an enhancement

under U.S.S.G. § 2B1.1(b) as the “proper mechanism” for considering multiple

victims). Accordingly, the district court here was not required to first consider

imposing a departure under § 4A1.3 before imposing a variance under § 3553(a).

Therefore, Cobb’s sentence is not procedurally unreasonable on this ground.


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(C)   Explanation of Sentence

      Next, Cobb argues that his sentence is procedurally unreasonable because

the district court did not state its reasons for the upward variance on the record

after defense counsel expressly requested an explanation. A district court commits

procedural error when it fails “to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.” Gall, 552

U.S. at 51. “The sentencing [court] should set forth enough to satisfy the appellate

court that it has considered the parties' arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356 (2007). However, the district court need not discuss or explicitly

state on the record that it has considered each § 3553(a) factor. United States v.

Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

      Here, the district court adequately explained the reasons for Cobb’s

sentence. It explicitly and thoroughly discussed the § 3553(a) factors, including:

Cobb’s history and characteristics; the nature and circumstances of the offense; the

need for the sentence imposed to reflect the seriousness of the offense, promote

respect for the law, provide just punishment, afford adequate deterrence, and

protect the public from further crimes. See 18 U.S.C. §§ 3553(a)(1), (2)(A)-(C).

The court’s explanation of Cobb’s sentence in this regard was sufficient to show

that the district court was exercising a reasoned basis for its sentence and the court


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adequately explained its reasons for Cobb’s sentence as a result. Accordingly,

Cobb’s sentence was not procedurally unreasonable in this regard.

                          II. Substantive Reasonableness

      Finally, Cobb argues that his sentence was substantively unreasonable

because the district court unjustifiably focused on his criminal history to the

exclusion of the other § 3553(a) factors. The party challenging a sentence bears

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

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

2005). The weight to be accorded any particular § 3553(a) factor is a matter

committed to the discretion of the district court. United States v. Williams, 526

F.3d 1312, 1322 (11th Cir. 2008). However, a district court’s “unjustified reliance

upon any one § 3553(a) factor is a symptom of an unreasonable sentence.” United

States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006) (internal quotations omitted).

We will vacate a sentence 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.” United States v. Irey, 612 F.3d 1160,

1190 (11th Cir. 2010) (en banc).

      Cobb has not established that his sentence is substantively unreasonable in

light of the record and the § 3553(a) factors. Although the district court


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emphasized Cobb’s history and characteristics, the weight to be accorded any

particular § 3553(a) factor is a matter committed to the discretion of the district

court. See Williams, 526 F.3d at 1322. After discussing Cobb’s history, the court

further found that a lesser sentence would be wholly inadequate to reflect the

seriousness of the sophisticated fraud offense. 18 U.S.C. § 3553(a)(2)(A). And

considering Cobb’s history of recidivism, the sentencing court determined that a

shorter sentence would not promote respect for the law, provide just punishment

for the offense, afford adequate deterrence to criminal conduct, or protect the

public from his further crimes. Id. § 3553(a)(2)(A)-(C). Thus, the district court

did not focus “single-mindedly” on Cobb’s criminal history. See, e.g., Crisp, 454

F.3d at 1292. Moreover, the 60-month (5-year) sentence was well below the

statutory maximum of 20 years, another indicator of reasonableness. See, e.g.,

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Thus, in

consideration of the record and the § 3553(a) factors, Cobb’s 60-month sentence

does not lie outside the range of reasonable sentences. Cobb’s sentence is not

substantively unreasonable.

      AFFIRMED.




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