United States v. Nathan Deveron Brennan , 290 F. App'x 286 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 21, 2008
No. 07-14643 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00045-CR-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN DEVERON BRENNAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 21, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Nathan Brennan appeals his sentences for conspiracy to defraud and bank
fraud, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1344 (2). Brennan argues
on appeal that (1) he should not have received a sophisticated means enhancement,
(2) the district court erred in concluding that he derived more than an $1,000,000
in gross receipts from the offense, (3) the district court erroneously included an
uncounseled previous conviction in his criminal history calculation, and (4) his
above guidelines-range sentence is unreasonable. For the reasons set forth below,
we affirm.
Brennan’s plea agreement included a limited appeal waiver provision. By
means of that provision, Brennan waived the right to appeal his sentence unless he
was sentenced above the guidelines range or the government appealed. We review
an appeal-of-sentence waiver provision de novo. United States v. Bushert, 997
F.2d 1343, 1352 (11th Cir. 1993). A sentence appeal waiver contained in a plea
agreement, made knowingly and voluntarily, is enforceable. Id. at 1350-51. To
enforce the sentence appeal waiver, the government must demonstrate either that
(1) the district court specifically questioned the defendant about the sentence-
appeal waiver during the change of plea colloquy, or (2) the record clearly shows
that the defendant otherwise understood the full significance of the waiver. Id. at
1351.
Brennan does not argue that his appeal waiver was not knowing and
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voluntary. Furthermore, the district court clearly discussed the appeal waiver with
Brennan during the Rule 11 hearing. Accordingly, Brennan waived his right to
appeal all issues, with the exception of an above-guidelines-range sentence or if the
government filed an appeal. Thus, we dismiss Brennan’s claims on appeal, with
the exception of the reasonableness of his sentence.
The Supreme Court has recently clarified that when we review a sentence
imposed by a district court for reasonableness, we must do so under an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 596 (2007). A sentence
may be procedurally unreasonable if the district court improperly calculates the
guidelines range, treats the guidelines as mandatory, fails to consider the
appropriate statutory factors, bases the sentence on clearly erroneous facts, or fails
to adequately explain its reasoning. Id. at 597. To reasonably determine a
sentence, a district court must consider the § 3553(a) factors and “make an
individualized assessment based on the facts presented.” Id. “After settling on the
appropriate sentence, [the court] must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Id. If a district court decides a sentence outside the guidelines range
is appropriate, it must “consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Id.
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Accordingly, the district court must “includ[e] an explanation for any deviation
from the Guidelines range.” Id.
In determining whether a sentence is substantively reasonable, we must
consider the totality of the circumstances. Id. If the sentence is outside the
guidelines range, we may consider the extent of the deviation, “but must give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Id. We recognize, however, that district courts
do not have unfettered discretion in sentencing. United States v. Pugh, 515 F.3d
1179, 1191 (11th Cir. 2008).
Upon review of the record and the parties’ briefs, we conclude that the
district court’s upward variance was reasonable. The court considered the advisory
guidelines, the statutory factors, and Brennan’s arguments for a sentence within or
below the guidelines range on the basis of the § 3553(a) factors. The district court
explained why it had determined that an above guidelines-range sentence was
appropriate in light of the § 3553(a) factors. Specifically, the court noted the need
to provide just punishment for the offense and to insure an adequate deterrence for
the likelihood of recidivism.
Further, the district court imposed a sentence that was well below the
statutory maximum. The statutory maximum penalty for Count 5 was 30 years’
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imprisonment. 18 U.S.C. § 1344. Brennan’s total sentence of 180 months’
imprisonment is far less than the statutory maximum he could have received.
Nothing in the record indicates that the district court abused its discretion when it
varied above the guideline range, and Brennan has not established that his sentence
is unreasonable in light of the record and the § 3553(a) factors.
Accordingly, we affirm on the reasonableness issue.
DISMISSED IN PART, AFFIRMED IN PART.
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