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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10379
Non-Argument Calendar
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D.C. Docket No. 6:18-cr-00019-PGB-KRS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENDAL LARRY MITCHELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 9, 2019)
Before NEWSOM, BRANCH and GRANT, Circuit Judges.
PER CURIAM:
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Kendal Mitchell pleaded guilty to one count of possessing 15 or more
counterfeit credit cards, in violation of 18 U.S.C. § 1029(a)(3). Although his
recommended Sentencing Guidelines range was 10–16 months’ imprisonment, the
district court varied upwards and imposed a 30-month sentence. Mitchell argues
on appeal that his sentence is procedurally unreasonable because the district court
failed to explain why a sentence within the Guidelines range was inadequate and
that it is substantively unreasonable because the district court’s justification for
varying upwards was based solely on his criminal history and was, therefore,
already accounted for by the Sentencing Guidelines. Finding no abuse of
discretion, we affirm.
I
A
After Mitchell attempted to use a fake credit card at Kres Chophouse in
Orlando, Florida, the restaurant management called the Orlando Police Department
to report the fraudulent purchase. The restaurant’s manager told OPD officers that
Mitchell had been to the restaurant before and that the staff had encountered issues
getting his credit cards to process—once, for example, employees had to swipe
multiple cards to find one that worked. According to the manager, Mitchell and an
accomplice, Christian Dior Bob, incurred around $600 in fraudulent charges at the
restaurant.
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OPD spoke with Mitchell at the restaurant—he told them his address, and
officers later obtained a warrant to search the premises. There, they found a
Bluetooth credit card skimmer, a credit card embosser, a credit card encoder, and
more than 200 suspected counterfeit credit cards—mostly in Mitchell’s and Bob’s
names—as well as gift cards, MDMA pills, marijuana, and a large amount of cash.
Of the 77 cards with Mitchell’s name embossed on them, 58 were counterfeit.
Notably, in addition to the paraphernalia found, OPD also recovered various lists
of victims’ names and personal information—including their credit card and social
security numbers.
B
Mitchell and Bob were charged with one count of possessing 15 or more
counterfeit devices, in violation of 18 U.S.C. § 1029(a)(3) and (c)(1)(A)(i), and one
count of possessing device-making equipment, in violation of 18 U.S.C. §
1029(a)(4) and (c)(1)(A)(ii). Mitchell pleaded guilty to the first count—when
asked what he planned to do with the counterfeit cards, he testified that he was
going to use them for “partying and stuff like that.” Mitchell’s criminal history
began with offenses like trespass and resisting arrest but later escalated to fraud.
Before the restaurant incident, he participated in a fraud scheme involving
timeshare properties, for which he pleaded guilty and was sentenced to 60-months’
probation—he subsequently violated the terms of his probation. While on pretrial
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release for the offense at issue here, he again committed credit card fraud—this
time, he checked into a hotel with counterfeit cards. This criminal conduct—along
with persistent marijuana use—violated the terms of his pretrial release.
Mitchell’s recommended Sentencing Guidelines range was 10–16 months’
imprisonment, with a maximum possible sentence of 120 months. The district
court, however, found that the Guidelines range did not adequately reflect the
seriousness of Mitchell’s conduct. Specifically, the district court noted that
Mitchell’s criminal history showed a pattern of escalating fraud, that his
motivations for committing fraud were frivolous and self-serving, that his crime
involved numerous victims’ personal information, and that previous punishments
had not deterred him from violating the terms of his probation and pretrial
release—or, for that matter, from committing more fraud-related crimes. The
court, therefore, varied upwards from the Guidelines range, sentencing Mitchell to
30 months’ imprisonment—nearly double the high-end of the Guidelines range,
but far below the maximum 120-month sentence.
Mitchell now appeals his sentence, arguing that it is procedurally and
substantively unreasonable. He claims that the district court inadequately
explained why the Guidelines range was insufficient and that the variance was
improperly based solely on his criminal history, which was already reflected in the
Guidelines range.
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II
We review the reasonableness of a sentence “under a deferential abuse-of-
discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007). A sentence is
procedurally unreasonable if the district court “fail[s] to adequately explain [its]
chosen sentence.”
Id. at 51. “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.” Rita v.
United States,
551 U.S. 338, 356 (2007) (citation omitted). The district court need
not discuss on the record each 18 U.S.C. § 3553(a) factor or explain in detail the
parties’ arguments; rather, it need only acknowledge that it considered the
defendant’s arguments and the § 3553(a) factors. United States v. Sarras,
575 F.3d
1191, 1219 (11th Cir. 2009). We have, however, found procedural error when a
district court “failed to give any explanation of its reasons for imposing a
sentence,” providing “no reasoning or indication of what facts justified . . . a
significant variance from the advisory Guidelines range.” United States v. Livesay,
525 F.3d 1081, 1093 (11th Cir. 2008) (emphasis added).
The district court’s sentence was not procedurally unreasonable because it
sufficiently explained that it was varying upwards due to Mitchell’s escalating
pattern of criminal history—including fraudulent activities before and after his
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arrest for the offense at issue here—his repeated noncompliance with probation
and pretrial release conditions, his frivolous motivations, and the significant
number of fraudulent credit cards and sensitive personal information involved in
this case.
III
We review the substantive reasonableness of a sentence for an abuse of
discretion.
Gall, 552 U.S. at 51. We examine whether a sentence is substantively
reasonable by considering the totality of the circumstances, including the extent of
any variance.
Id. We “may not apply a presumption of unreasonableness” just
because a sentence falls outside the Guidelines range—rather, we must “consider
the extent of the deviation” while “giv[ing] due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id. The fact that a sentence is well below the statutory maximum penalty can be an
indicator of reasonableness. See, e.g., United States v. Gonzalez,
550 F.3d 1319,
1324 (11th Cir. 2008) (holding that the sentence was reasonable, in part, because it
was well below the statutory maximum). We reverse only when “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
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States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation and
citations omitted).
The weight given to each § 3553(a) factor is within the district court’s
“sound discretion.” United States v. Kuhlman,
711 F.3d 1321, 1327 (11th Cir.
2013) (quotation omitted). A district court can abuse its discretion when 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.”
Id. at 1326–27. Although a court’s “unjustified
reliance on a single factor” could be symptomatic of unreasonableness, “significant
reliance on a single factor does not necessarily render a sentence unreasonable.”
Id. at 1327 (citations omitted). When considering the § 3553(a) factors, a district
court is not prevented from also considering previous criminal conduct
encompassed by a sentencing enhancement. See, e.g., United States v. Turner,
626
F.3d 566, 570–71, 573–74 (11th Cir. 2010).
When the district court decides that a variance is appropriate based on the §
3553(a) factors, it should explain that variance with “sufficient justifications.”
Gall, 552 U.S. at 46. The court’s justifications “must be compelling enough to
support the degree of the variance and complete enough to allow meaningful
appellate review,” but “an extraordinary justification” is not required. United
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States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009) (internal quotation marks and
citation omitted).
Mitchell’s 30-month sentence is not substantively unreasonable—the district
court was permitted to consider Mitchell’s criminal history and offense conduct in
deciding to vary above the Guidelines range, even though such factors were
already accounted for in the Guidelines calculation. Additionally, while it was
permissible for the district court to give Mitchell’s criminal history significant
weight, the district court also identified other reasons justifying the upward
variance, such as Mitchell’s frivolous motive for committing fraud, the number of
fraudulent credit cards and the sensitive personal information involved in the case,
the minimal deterrent effect previous penalties had on Mitchell’s criminal activity,
his repeated probation and pretrial release violations, and a need to protect society
from further fraudulent activity. We find no abuse of discretion here.
AFFIRMED.
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