                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 30, 2007
                              No. 07-11629                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 06-00003-CR-4-JTC-3

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

NATHAN WYNN,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (November 30, 2007)


Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

     Nathan Wynn appeals his sentence imposed after pleading guilty to
transporting a stolen motor vehicle in interstate commerce, in violation of 18

U.S.C. § 2312. We address Wynn’s issues on appeal in turn, and affirm his

sentence.

                                           I.

      Wynn asserts the district court committed reversible error by failing to make

an explicit finding as to the loss amount of the stolen vehicles until after

determining what the court considered a reasonable sentence for Wynn. Wynn

also contends the district court clearly erred when it relied on the disputed

presentence investigation report (PSI) to make its factual finding that the loss was

more than $70,000. Wynn asserts that once he challenged the factual finding, the

Government failed to establish the loss amount by a preponderance of the evidence

using “reliable and specific evidence.”

      We review a district court's amount-of-loss determination for clear error.

United States v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003). When a

defendant challenges one of the bases of his sentence as set forth in the PSI, the

government bears the burden of establishing the disputed fact by a preponderance

of the evidence. United States v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001). We

have explained “the preponderance standard is not toothless. It is the district

court’s duty to ensure that the Government carries this burden by presenting



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reliable and specific evidence.” United States v. Bernardine, 73 F.3d 1078, 1080

(11th Cir. 1996) (emphasis omitted). Where the defendant provides evidence to

rebut the allegation in the PSI, “courts may not simply accept a conclusion in the

PSI without any evidentiary support.” Id. at 1082.

      Once Wynn objected to the value attributed to the stolen vehicles in the PSI,

the Government bore the burden of proof by a preponderance of the evidence.

Wynn specifically referenced evidence of the insurance payout on the vehicles

which was less than $70,000 and argued the dealership list prices relied upon in the

PSI were not a reliable reflection of the fair market value. In response, the

Government specifically stated there was no additional evidence to support the loss

amount figure other than the dealership’s estimate of list value and agreed the

insurance payout was a more reliable figure. The probation officer could provide

no additional source to support the loss calculation in the PSI. Despite recognizing

the dealership’s list prices could be overstated and without receiving any further

evidence, the district court adopted the PSI’s assessment of loss specifically basing

its finding on the contested list prices provided by the dealership. While “[a]

sentencing court may rely on disputed facts in a sentencing report when they are

shown by some reliable proof allowing the court to conclude it is not unlikely the

statements are true,” the Government failed to meet its burden in this case. See


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United States v. Delgado, 56 F.3d 1357, 1371 (11th Cir. 1995). Because the

Government failed to provide any evidence of the loss amount other than the

already disputed evidence, we conclude the district court clearly erred in

determining the loss amount was the value stated in the PSI.

                                           II.

      Wynn asserts this error was not harmless. In United States v. Keene, 470

F.3d 1347 (11th Cir. 2006), we held that where the sentencing judge specifically

indicates he would have reached the same sentence under § 3553(a), a harmless-

error type of analysis must be applied to determine whether

               the sentence imposed through the alternative or fallback
               reasoning of § 3553(a) [is] reasonable. In determining
               whether it is reasonable we must assume that there was a
               guidelines error—that the guidelines issue should have
               been decided in the way the defendant argued and the
               advisory range reduced accordingly—and then ask
               whether the final sentence resulting from consideration of
               the § 3553(a) factors would still be reasonable.
Id. at 1349.

      Although the district court originally stated it was not going to rule on the

objection to the eight-level increase for loss amount, prior to sentencing Wynn, the

district court confirmed it was adopting the advisory Guidelines range in the PSI,

46 to 57 months, as the range to use in fashioning Wynn’s sentence. The

sentencing court also expressly indicated that regardless of whether the loss

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amount dictated a six or eight-level increase in the offense level, it, nonetheless,

would have imposed the same 52-month sentence. Thus, in light of Keene, we

apply the harmless-error analysis in order to determine whether the 52-month

sentence would be reasonable under § 3553(a).

      Assuming the district court should have determined that the loss amount was

between $30,000 and $70,000, Wynn’s total offense level should have been 14

rather than 16. With a total offense level of 14 and a criminal history category of

VI, Wynn’s resulting Guidelines range should have been 37 to 46 months’

imprisonment. “The question then is whether the [52-month] sentence the court

imposed is reasonable, assuming exactly the same conduct and other factors in the

case, but using an advisory range of [37 to 46] months.” Id. at 1350.

                                          III.

      Wynn asserts his sentence is unreasonable because the district court focused

only on Wynn’s criminal history which is mitigated by his childhood, his drug

addiction, his acceptance of responsibility, and his assistance to authorities.

      Reasonableness review is deferential and “the party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). When “reviewing the ultimate

                                           5
sentence imposed by the district court for reasonableness, we consider the final

sentence, in its entirety” rather than each individual decision made during the

sentencing process. United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)

(quotations omitted). “The weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” United States v.

Williams, 456 F.3d 1353, 1363 (11th Cir. 2006). “When reviewing the length of a

sentence for reasonableness, we will remand for resentencing 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.” Id.

      “If the Guidelines calculation is correct, or if the miscalculation is harmless,

we consider whether the sentence is reasonable” in light of the factors outlined in

§ 3553(a) and the district court’s reasons for imposing a particular sentence. Id. at

1360-61. Included among the § 3553(a) factors are (1) the nature and

circumstances of the offense; (2) the history and characteristics of the defendant;

(3) the need to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense; (4) the need for deterrence; (5) the

need to protect the public; (6) the Sentencing Guidelines range; and (7) the need to

avoid unwanted sentencing disparities. See 18 U.S.C. § 3553(a). The district


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court, however, is not required “to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

       Wynn cannot carry the burden of showing that his 52-month sentence was

unreasonable even with an assumed advisory range of 37 to 46 months. The

district court specifically stated that, regardless of its Guidelines calculations, it

would have imposed a 52-month sentence based on the nature and circumstances

of the offense and Wynn’s history and characteristics. The record demonstrates the

district court considered Wynn’s history and characteristics and the need for the

sentence imposed to promote respect for the law, to promote just punishment for

the offense, to protect the public from future crimes of the defendant, and to

provide adequate deterrence to criminal conduct. The district court’s decision is

supported by the unobjected-to facts from the PSI that Wynn, at 27 years of age,

had a criminal record that included, among others, convictions for theft by

shoplifting, forgery, burglary, criminal trespass, theft by taking, theft by receiving

stolen property, and entering an auto. The PSI also recounts several instances in

which Wynn violated probation by committing other crimes.

       Wynn’s argument that his sentence is unreasonable because he accepted

responsibility by pleading guilty and providing information to investigators is


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belied by the fact that he was unable to adhere to the terms of his pre-trial release

and relapsed into drugs. In fact, the district court specifically noted that it hoped

the length of the sentence would “afford some help” for Wynn’s drug addiction.

Accordingly, under these circumstances, we cannot conclude that a 52-month

sentence is unreasonable given a Guidelines range of 37 to 46 months or 46 to 57

months. See United States v. Lozano, 490 F.3d 1317, 1324-25 (11th Cir. 2007)

(holding a 72-month sentence was still reasonable even if the Guidelines range was

21 to 27 months rather than 63 to 78 months given the seriousness of the offense

and the need to afford just punishment and deterrence); Keene, 470 F.3d at 1350

(holding a 120-month sentence was reasonable assuming an advisory Guidelines

range of 84 to 105 months rather than 100 to 125 months). Accordingly, we affirm

the sentence imposed by the district court.

      AFFIRMED.




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