United States v. Michael Pringle

Case: 12-11307 Date Filed: 11/29/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11307
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00205-BAE-GRS-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MICHAEL PRINGLE,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(November 29, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Michael Pringle appeals his above-guidelines sentence of 30 months after
pleading guilty, pursuant to a plea agreement, to the charge of conspiring to
commit financial aid fraud. Pringle argues (1) the district court erred by adopting
the probation officer’s erroneous determination of his criminal history score,
(2) the district court failed to follow the proper procedure for imposing an upward
sentencing departure, and (3) his above-guidelines sentence was substantively
unreasonable. After review, we affirm Pringle’s sentence.
I.
Pringle first contends his sentence was procedurally unreasonable because
the PSI stated he had 15, rather than 13, criminal history points. Because Pringle
failed to raise this argument before the district court, we review for plain error.
Under this standard, we can make corrections only if (1) there is an error, (2) that
is plain, and (3) that affects substantial rights. United States v. Rodriguez, 398
F.3d 1291, 1298 (11th Cir. 2005). A defendant fails to meet his burden on the
third factor when “the effect of an error on the result in the district court is
uncertain or indeterminate.” Rodriguez, 398 F.3d at 1301.
In determining Pringle’s sentence, the district court never mentioned
Pringle’s criminal history points or indicated that it was basing sentencing on that
number. Rather, the district court recounted the lengthy history of Pringle’s
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criminal convictions. Moreover, although Pringle had only 13 criminal history
points, Pringle still would have earned the same criminal history category (VI)
based on that number. See U.S.S.G. Ch. 5, Pt. A. Because it is at most uncertain
as to whether the misstatement of the criminal history points affected the district
court’s sentencing decision, Pringle cannot show the error affected his substantial
rights. Rodriguez, 398 F.3d at 1301.
II.
Pringle next contends his sentence was procedurally unreasonable because
the district court failed to follow the proper procedure for an upward departure
from his guidelines range of 12 to 18 months. Because Pringle failed to raise this
argument before the district court, we again review for plain error. Rodriguez, 398
F.3d at 1298.
When uncertainty exists as to whether the district court applied a departure
or variance, we consider: (1) whether the district court referenced a particular
guidelines departure provision, and (2) whether the court based its decision on a
belief that the guidelines were not adequate. See United States v. Kapordelis, 569
F.3d 1291, 1316 (11th Cir. 2009). In Kapordelis, we held that even though the
district court stated it was granting a “motion for an upward departure,” where the
court did not cite a specific guideline departure and its rationale was based on the
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§ 3553(a) factors and a finding that the guidelines were inadequate, it actually
granted a variance. Kapordelis, 569 F.3d at 1316.
Contrary to Pringle’s contentions, the district court did not impose an
upward departure, but instead imposed an upward variance based on the § 3553(a)
factors. Id. In imposing Pringle’s sentence, the district court correctly calculated
Pringle’s advisory guideline range, found it did not sufficiently address the §
3553(a) sentencing factors, and imposed a sentence outside the advisory
guidelines range without citing a specific guideline provision. These factors
indicate the district court imposed a variance, not a departure. Thus, the court did
not plainly err in failing to follow the proper procedure for imposing an upward
sentencing departure.
III.
Pringle’s final argument is that his 30 month sentence was substantively
unreasonable. If the district court applies a variance, the reasonableness of the
variance is assessed in light of the § 3553(a) factors and the totality of the
circumstances, with due deference given to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance. Gall v. United
States, 128 S. Ct. 586, 597 (2007). The party challenging the sentence bears the
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burden of establishing unreasonableness. United States v. Tome, 611 F.3d 1371,
1378 (11th Cir. 2010).
Pringle has not established his above-guidelines sentence was substantively
unreasonable. The sentence was based expressly on the § 3553(a) factors. The
sentence was also well below the statutory maximum of 60 months. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Moreover, the court
gave sufficient reasons to support the extent of the variance, including its
observations that Pringle had a history of failing to comply with probation, and
that Pringle had been undeterred from criminal conduct by his previous sentences.
The district court did not abuse its discretion in imposing a 30-month sentence.
AFFIRMED.
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