USCA11 Case: 20-13984 Document: 48-1 Date Filed: 01/23/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13984
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD BARRETT DALE WALKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00244-PGB-LRH-1
____________________
USCA11 Case: 20-13984 Document: 48-1 Date Filed: 01/23/2023 Page: 2 of 5
2 Opinion of the Court 20-13984
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
Richard Walker appeals his sentence of 65 months’ impris-
onment, an upward variance from his Guidelines range of 41 to 51
months’ imprisonment, imposed for the offenses of wire fraud and
bank fraud. Walker contends the district court abused its discretion
in varying upward from his Guidelines range and specifically chal-
lenges the district court’s decision to vary upward based on its pur-
ported belief the Government should have charged him with ag-
gravated identity theft. After review, 1 we affirm.
A district court abuses its discretion and imposes a substan-
tively unreasonable sentence only if it (1) fails to consider 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.
Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015). “[We] com-
mit[] to the sound discretion of the district court the weight to be
1 We review the reasonableness of a sentence, whether inside or outside of
the Guidelines range, for abuse of discretion. Gall v. United States,
552 U.S.
38, 51 (2007). When reviewing for substantive reasonableness, we consider
the totality of the circumstances.
Id. The party challenging the sentence bears
the burden of establishing that it is unreasonable based on the facts of the case
and the
18 U.S.C. § 3553(a) factors. United States v. Shabazz,
887 F.3d 1204,
1224 (11th Cir. 2018).
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20-13984 Opinion of the Court 3
accorded to each § 3553(a) factor.” 2 United States v. Perkins,
787 F.3d 1329, 1342 (11th Cir. 2015). We will vacate a district
court’s sentence as substantively unreasonable “only if we are left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in weighing the § 3553(a) factors”
as evidenced by a sentence “outside the range of reasonable sen-
tences dictated by the facts of the case.” United States v. Goldman,
953 F.3d 1213, 1222 (11th Cir. 2020) (quotation marks omitted).
We do not presume that a sentence outside the Guidelines
range is unreasonable, and we give deference to the district court’s
decision that the § 3553(a) factors support its chosen sentence.
United States v. Irey,
612 F.3d 1160, 1187 (11th Cir. 2010) (en banc).
“In reviewing the substantive reasonableness of a sentence im-
posed outside the guideline range, we may take the degree of vari-
ance into account and consider the extent of a deviation from the
guidelines.” United States v. Taylor,
997 F.3d 1348, 1355 (11th Cir.
2 Section 3553(a)’s “overarching” instruction is that any sentence must be suf-
ficient but not greater than necessary to comply with the purposes listed in
§ 3553(a)(2). Kimbrough v. United States,
552 U.S. 85, 101 (2007);
18 U.S.C.
§ 3553(a). These purposes include the need to reflect the seriousness of 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 a particular sen-
tence, the court must also consider the offense’s nature and circumstances, the
defendant’s history and characteristics, the applicable Guidelines range, any
pertinent policy statements from the Sentencing Commission, the need to
avoid unwarranted sentencing disparities between similarly situated defend-
ants, and the need to provide restitution to any of the defendant’s victims.
Id.
§ 3553(a)(1), (3)-(7).
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4 Opinion of the Court 20-13984
2021). “The district court may vary upward based on conduct that
was already considered in calculating the guideline range.” Id. Fur-
thermore, “a sentencing court may impose an upward variance
based upon uncharged conduct as it relates to the history and char-
acteristics of the defendant, as well as the need to promote respect
for the law, afford adequate deterrence, and protect the public.”
United States v. Butler,
39 F.4th 1349, 1355 (11th Cir. 2022).
Walker’s sentence is substantively reasonable because the
court properly weighed the § 3553(a) factors. In balancing the
§ 3553(a) factors, the court specifically noted, as to the seriousness
of the offense, that Walker had abused a position of trust, used so-
phisticated means, took measures to conceal the offense, took ad-
vantage of a familial relationship, continued to steal from a family
member for four years, stole a considerable amount of money dur-
ing those four years, and only stopped after his offense was de-
tected.
18 U.S.C. § 3553(a)(2). The court also specifically noted
that, while Walker claimed to have accepted responsibility, he had
not paid towards any restitution in the two years since his crimes
had been detected. While the court noted each forged check con-
stituted aggravated identity theft, the court properly considered
uncharged conduct as part of the § 3553(a) factors. See Butler, 39
F.4th at 1355. The record does not show the court gave more
weight to the uncharged conduct than to any of the other factors it
discussed, as the statement of reasons states the upward variance
was based on the Guidelines failure to consider the abuse of trust
in a personal relationship and repetitive nature of the offense. Even
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20-13984 Opinion of the Court 5
if the court gave considerable weight to the uncharged conduct,
this Court commits the weight of each § 3553(a) factor to the dis-
trict court. Perkins,
787 F.3d at 1342; Butler, 39 F.4th at 1355-56.
Further, the sentence was well below the statutory maximum of
20 years for wire fraud and 30 years for bank fraud.
18 U.S.C.
§§ 1343, 1344; Goldman, 953 F.3d at 1222 (explaining one indicator
of reasonableness is whether the sentence falls well below the max-
imum penalty). Accordingly, we affirm.
AFFIRMED.
