United States v. Derrick Abernathy , 544 F. App'x 838 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10534
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60214-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK ABERNATHY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 30, 2013)
Before DUBINA, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Derrick Abernathy appeals his 180-month sentence imposed after he pleaded
guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). Abernathy argues that
his sentence was substantively unreasonable in light of the sentencing goals of
punishment, deterrence, and rehabilitation, as provided for in 18 U.S.C. § 3553(a).
He points out that § 3553(a) requires courts to impose sentences “sufficient, but
not greater than necessary,” to achieve these goals, and says that a lower sentence
would have been adequate to punish, deter, and rehabilitate him.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
(2007). As Abernathy has argued, the district court is required to impose a
sentence “sufficient, but not greater than necessary, to comply with the purposes”
listed in § 3553(a)(2). Those purposes include, but are not limited to, 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); see also id. (1), (3)—
(7). In considering the § 3553(a) factors, the district court does not need to discuss
or state each factor explicitly. United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). An acknowledgment that the court has considered the
defendant’s arguments and the § 3553(a) factors will suffice. Id.
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The party who challenges the sentence bears the burden of showing that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We ordinarily expect a
sentence falling within the guideline range to be reasonable. Gonzalez, 550 F.3d at
1324. We have also found that a sentence well below the statutory maximum
penalty can be an indication of reasonableness. See id. We will reverse only if
“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) (quotation
marks omitted).
Abernathy cannot meet his burden to show unreasonableness here. The
record clearly reflects that the district court considered such § 3553(a) factors as
the nature and circumstances of the instant offense, as well as the defendant’s
history and characteristics. See 18 U.S.C. § 3553(a)(1). In particular, the court
referred to Abernathy’s criminal record, his probation violation, and the fact that
he committed the bank robbery roughly a year after finishing a 15-year sentence
for prior bank robberies. After weighing this criminal history against other factors,
the court found that any sentence lower than Abernathy’s previous 15-year
sentence would not promote respect for the law, which is one of the sentencing
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purposes listed in § 3553(a). In addition, the 180-months sentence was within the
applicable guideline range and below the 20-year statutory maximum penalty,
which are further indications of its reasonableness. See Gonzalez, 550 F.3d at
1324.
For these reasons, we affirm Abernathy’s sentence as substantively
reasonable.
AFFIRMED.
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