USCA11 Case: 20-14819 Date Filed: 10/21/2021 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14819
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY C. MATHIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cr-00019-HL-TQL-1
____________________
USCA11 Case: 20-14819 Date Filed: 10/21/2021 Page: 2 of 4
2 Opinion of the Court 20-14819
Before BRANCH, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Tony Mathis appeals his sentence of 50 months’ imprison-
ment for wire fraud, imposed after an upward variance from his
guideline range of 21 to 27 months. Mathis asserts his sentence was
substantively unreasonable because the district court based its up-
ward variance on his criminal history, a factor already fully taken
into consideration in the formation of the guideline range. After
review, 1 we affirm Mathis’s sentence.
The district court has broad discretion to decide whether the
18 U.S.C. § 3553(a) factors justify a variance. United States v. Ro-
driguez,
628 F.3d 1258, 1264 (11th Cir. 2010), abrogated on other
grounds by Van Buren v. United States,
141 S. Ct. 1648 (2021). The
district court also has the discretion to determine how much
weight to give each factor and is permitted to give great weight to
one factor over others. United States v. Riley,
995 F.3d 1272, 1279
1 When reviewing a sentence for substantive reasonableness, we consider the
totality of the circumstances, including the degree of variance, under a defer-
ential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51
(2007). The district court abuses its discretion when it “(1) fails to afford con-
sideration to relevant factors that were due significant weight, (2) gives signif-
icant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Irey,
612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted).
USCA11 Case: 20-14819 Date Filed: 10/21/2021 Page: 3 of 4
20-14819 Opinion of the Court 3
(11th Cir. 2021) (quotation marks omitted). A district court’s deci-
sion to give substantial weight to a defendant’s criminal record “is
entirely consistent with § 3553(a) because five of that section’s fac-
tors are related to criminal history.” Id. at 1280 (quotation marks
omitted).
Mathis’s sentence is not substantively unreasonable. The
district court did not abuse its discretion by basing its upward vari-
ance on Mathis’s criminal history even though his criminal history
was also used in calculating his guideline range. When determining
whether a variance is warranted, the district court may consider
facts that were taken into account when formulating the guideline
range, such as a defendant’s criminal history. See United States v.
Dougherty,
754 F.3d 1353, 1362 (11th Cir. 2014). Additionally, be-
cause the calculation of the criminal history category was based
only on the length of each prior sentence and not on the nature of
the previous offenses, it did not account for the fact Mathis previ-
ously committed a similar offense, a fact the court found notewor-
thy. U.S.S.G. § 4A1.1. Specifically, the court noted: “This is not
the first time [Mathis] has committed a similar offense. He has
drug convictions. He has not led an exemplary life.”
Likewise, Mathis’s submission of documents containing
false statements to the government after pleading guilty in this
case, which the court also considered during sentencing, was not
accounted for in the calculation of his criminal history category.
And, to the extent that Mathis’s submission of documents contain-
ing false statements to the government was considered in the
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4 Opinion of the Court 20-14819
decision to deny the adjustment for acceptance of responsibility,
the court was nevertheless entitled to consider it when deciding to
vary from the guideline range. See Dougherty, 754 F.3d at 1362.
Given the considerable discretion the district court is af-
forded in deciding whether and to what extent a variance is justi-
fied, the court’s concern with Mathis’s criminal history, the seri-
ousness of the offense, and the need for adequate deterrence was
sufficient to justify the upward variance of 23 months. Further-
more, Mathis’s 50-month sentence was well below the statutory
maximum of 20 years’ imprisonment, supporting its reasonable-
ness. See id. (stating an indicator of a reasonable sentence is one
that is well below the statutory maximum for the crime). There-
fore, because the court did not abuse its discretion by basing its up-
ward variance on Mathis’s criminal history even though his crimi-
nal history was also used in calculating the guideline range or by
imposing too high of a variance, the sentence was substantively
reasonable.
AFFIRMED.
