United States v. Barbara Joann Sapsin , 356 F. App'x 298 ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                 FILED
    U.S. COURT OF APPEALS
    No. 09-12824                ELEVENTH CIRCUIT
    DECEMBER 11, 2009
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket No. 09-00015-CR-1-MMP-AK
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BARBARA JOANN SAPSIN,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (December 11, 2009)
    Before BLACK, BARKETT and FAY, Circuit Judges.
    PER CURIAM:
    Barbara Sapsin appeals her 24-month sentence, which was imposed
    following her admission to violating the conditions of her supervised release for
    previous convictions of embezzlement of public money, property, or records, in
    violation of 18 U.S.C. § 641, and aggravated identity theft, in violation of 18
    U.S.C. § 1028A.     On appeal, Sapsin argues that her sentence was unreasonable
    because the district court: failed to explain it reasons for the sentence, failed to take
    into account the Sentencing Guidelines policy statements and mandatory
    sentencing considerations at 18 U.S.C. § 3553(a), and impermissibly considered a
    factor not expressly listed in § 3553(a).
    We review a sentence imposed upon the revocation of supervised release for
    reasonableness. United States v. Velasquez Velasquez, 
    524 F.3d 1248
    , 1252 (11th
    Cir. 2008). Out reasonableness review is deferential, and the party challenging the
    sentence “bears the burden of establishing that the sentence is unreasonable in the
    light of both the record and the factors in section 3553(a).” United States v.
    Thomas, 
    446 F.3d 1348
    , 1351 (11th Cir. 2006), citing United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005). In considering the reasonableness of a sentence,
    we employ an abuse-of-discretion standard “[r]egardless of whether the sentence
    imposed is inside or outside the Guidelines range.” Gall v. United States, 
    552 U.S. 38
    , ___, 
    128 S. Ct. 586
    , 597, 
    169 L. Ed. 2d 445
    (2007). We review de novo, as
    a question of law, whether a factor considered by the district court in sentencing is
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    impermissible. Velasquez 
    Velasquez, 524 F.3d at 1252
    . (quotation omitted).
    When revoking a defendant’s term of supervised release, 18 U.S.C.
    § 3583(e) instructs courts to consider certain § 3553(a) factors to determine an
    appropriate sentence. See 18 U.S.C. § 3583(e). Specifically, courts are directed to
    consider: “the nature and circumstances of the offense and the history and
    characteristics of the defendant”; the need for the sentence imposed to “afford
    adequate deterrence to criminal conduct” and “protect the public from further
    crimes [committed by] the defendant”; the need for the sentence to “provide the
    defendant with needed educational or vocational training, medical care, or other
    correctional treatment in the most effective manner”; applicable guidelines or
    policy statements issued by the Sentencing Commission; any pertinent policy
    statements; the need to avoid unwarranted sentence disparities; and the need to
    provide restitution to victims. See 18 U.S.C. § 3583(e), citing 18 U.S.C.
    § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). The district court need not discuss or
    explicitly state each factor on the record, but an acknowledgment by the district
    court that it has considered the defendant’s arguments and the § 3553(a) factors
    will suffice. United States v. Gonzalez, 
    550 F.3d 1319
    , 1329-30 (11th Cir. 2008).
    We will vacate a sentence if we are left “with the definite and firm
    conviction that the district court committed a clear error of judgment in weighing
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    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 States v. Pugh, 
    515 F.3d 1179
    , 1191 (11th Cir. 2008) (quotation omitted). If the sentence imposed lies
    outside of the guideline range, the degree of the variance is relevant to the
    substantive reasonableness of the sentence and, in general, “a major departure
    should be supported by a more significant justification than a minor one.” Gall,
    552 U.S. at __, 128 S.Ct. at 597. Nonetheless, in reviewing such a sentence, the
    appellate court “may not apply a presumption of unreasonableness.” 
    Id. A district
    court has “considerable discretion” in deciding whether the § 3553(a) factors
    justify a variance, and it need not provide “extraordinary justification” for a
    sentence that lies outside the guideline range. United States v. Shaw, 
    560 F.3d 1230
    , 1238 (11th Cir.) (quotation omitted), cert. denied 
    129 S. Ct. 2847
    (2009).
    After review of the parties’ briefs and careful consideration of the record, we
    affirm. The district court specifically advised Sapsin that, although the advisory
    guideline range for her sentence was six to 12 months, she could potentially
    receive up to 24 months in prison. The court found that a variance was warranted.
    The court based its decision on a consideration of the policy statements, the
    § 3553(a) mandatory sentencing factors, and Sapsin’s own admission that she
    committed violations of the conditions of supervised release.
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    There is no basis on which to conclude that the district court made a clear
    error in judgment in weighing the relevant § 3553(a) factors against the undisputed
    record. See 
    Shaw, 560 F.3d at 1237-1238
    ; see also Gall, 552 U.S. at __, 128 S.Ct.
    at 597 (the reviewing court “must give due deference to the district court’s decision
    that the § 3553(a) factors, on a whole, justify the extent of the variance.”). The
    district court did not abuse its discretion. We therefore affirm.
    AFFIRMED.
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