United States v. Kelly, 11th Cir. (2010)

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

________________________
ELEVENTH CIRCUIT
MAR 17, 2010
JOHN LEY
CLERK
Nos. 09-14407 and 09-14408

Non-Argument Calendar
________________________
D. C. Docket Nos. 08-00104-CR-JRH-1
& 09-00042-CR-JRH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD BERNARD KELLY,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(March 17, 2010)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Donald Bernard Kelly appeals his 120-month sentence, imposed following
his convictions for bank robbery, in violation of 18 U.S.C. 2113(a). After review
of the record, we affirm.

Kelly pleaded guilty to two separate indictments, each charging him with
different bank robberies. The first robbery occurred in July 2008, in Macon,
Georgia. The second occurred about a week later in Augusta, Georgia. Although
the notes handed to the teller in each robbery stated that Kelly was armed, Kelly
did not use a weapon during the robberies.
In calculating the advisory guidelines range, the probation officer did not
group the two offenses together, but the same calculations applied to each offense:
the base offense level was 20 under U.S.S.G. 2B3.1(a), with 2 levels added
because Kelly took property of a financial institution, and another 2 levels added
because Kelly made a death threat. To account for the multiple offenses, 3D1.4,
the probation officer then added two levels to the adjusted offense level. With a 3level reduction for acceptance of responsibility, the total adjusted offense level was
23.
The probation officer then detailed Kellys lengthy criminal history dating
back to 1986. Kelly had several prior convictions for burglary and theft. He also
had been convicted of bank robbery in 1995, and he committed the instant offenses
while on supervised release from the 1995 bank robbery. Nevertheless, most of
Kellys prior convictions were not assigned any criminal history points. In fact, of
Kellys ten prior convictions, only two received criminal history points. Kellys
criminal history placed him in category IV, which yielded an advisory guidelines
range of 70 to 87 months imprisonment. The statutory maximum for bank
robbery is 20 years imprisonment. 18 U.S.C. 2113(a).
The court sentenced Kelly to 120 months imprisonment on each offense, to
run concurrently to each other but consecutively to any term that was later imposed
for the violation of Kellys supervised release. The court explained that the
aggravating circumstances were not adequately addressed by the guidelines, and
the sentencing factors in 18 U.S.C. 3553(a) justified an upward variance. The
court noted Kellys repeated criminal conduct, citing his lengthy criminal history
and the fact that he had committed the two bank robberies while on supervised
release. Kelly now appeals the procedural and substantive reasonableness of his
sentence.
We review sentencing determinations for reasonableness, which requires us
to apply a deferential abuse-of-discretion standard to the sentence of the district
court, whether inside, just outside, or significantly outside the Guidelines
range. . . . Gall v. United States, 552 U.S. 38, 41, 46 (2007). In conducting this
review, we invoke the following two-step process to evaluate procedural and
substantive reasonableness:
[We] must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence-including an explanation for any
deviation from the Guidelines range. Assuming that the district courts
sentencing decision is procedurally sound, [we] . . . then consider the
substantive reasonableness of the sentence imposed.
Id. at 51.
Procedural soundness assumes that [w]here the judge imposes a sentence
outside the Guidelines, the judge will explain why he has done so. Rita v. United
States, 551 U.S. 338, 356-57 (2007). The judge must properly calculate the
Guidelines range and include an explanation for any deviation from the Guidelines
range. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quotation
and alteration omitted). A greater variance from the applicable guideline range
should be supported by a more significant justification than a smaller variance.
Gall, 552 U.S. at 50. The judges statement, however, may be brief and is to be
evaluated in conjunction with the record and context of the case. Rita, 551 U.S. at
358-59. The sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties arguments and has a reasoned basis for
exercising his own legal decisionmaking authority. Id. at 356.
The substantive reasonableness of a sentence considers the totality of the
circumstances. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). In
arriving at a substantively reasonable sentence, the district court must give
consideration to the sentencing factors listed in 18 U.S.C. 3553(a). United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Those factors are:
(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 needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8)
pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to
provide restitution to victims.
Id. at 786 (citing 18 U.S.C. 3553(a)).
If the sentence is outside the guidelines range, we may consider the
deviation, but must give due deference to the district courts decision that the
3553(a) factors, on a whole, justify the extent of the variance. United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation omitted). Extraordinary
circumstances are not required to justify a sentence outside the guidelines range,
Livesay, 525 F.3d at 1090, and there is a range of reasonable sentences from
which the district court may choose, Talley, 431 F.3d at 788. The burden of
establishing that the sentence is unreasonable considering both the record and the
3553(a) factors is on the party challenging the sentence. Id.
5
After a review of the record and consideration of the parties briefs, we

conclude that Kelly failed to show that his sentence was either procedurally or
substantively unreasonable. The court correctly determined the guidelines range
and treated the guidelines as advisory. The court further explained its basis for
imposing an upward variance. Moreover, the district court did not abuse its
discretion in relying on the facts of Kellys past criminal history and recidivist
behavior, as these are factors to be considered under 3553(a). Finally, the
sentence imposed was well below the statutory maximum sentence for bank
robbery.
AFFIRMED.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

Nos. 09-14407 and 09-14408

of the record, we affirm.

After a review of the record and consideration of the parties briefs, we

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