[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13020 Non

- Argument Calendar

________________________ D.C. Docket No. 6:16

- cr - 00115

- RBD

- DCI

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

vers us YOSBEL MARIMON, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

___________ _____________ (May 3, 2018)

Before WILSON , JORDAN and BLACK , Circuit Judges.
PER CURIAM:

Case: 17-13020 Date Filed: 05/03/2018 Page: 1 of 52 Yosbel Mar i mon appeals the 90

- month sentence imposed after he pled guilty
to one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349

. Marimon contends his sentence, which i s 12 months abov e the high end of the guideline s range, i s substantively unreasonable . After review, we affirm. 1 Contrary to Marimon’s assertion that the district court provided only two “general reasons” for imposing an upward variance, the record reveals the decision

was based on several factors listed in 18 U.S.C. § 3553(a), including: the need for the sentence im posed to reflect the seriousness of the offense, the need to protect the public, and Marimon’s history and characteristics. First, the district court noted
health care fraud is “an incredibly serious crime, and it warrants a very serious penalty,” elabora ting that Marimon “st[ole] over $9 million, close to $10 million . . . from the Medicare proceeds . . . which is money that is sorely needed by people who oftentimes have no other security blanket.” Second, the district court emphasized Marim on’s histo ry of criminal conduct , which it believed indicat ed an increased likelihood Marim on would harm the public by re - offend ing

. Third, and finally, the district court noted Marimon was continuing to live beyond his means.

1 We review substantive unreasonableness claims under a deferential abuse of discretion standard. United States v. Early , 686 F.3d 1219, 1221 (11th Cir. 2012). Mar i mon, the party challenging the sentence, must show it is unreasonable given the record and the 18 U.S.C. § 3553(a) sentencing factors. Id. The district court “must have a justification compelling enough to support the degree of the [upward] variance and complete enough to allow meaningful appellate review.” Id. But we will not vacate unless “we are 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 o f reasonable sentences dictated by the facts of the case.” Id. (quoting United States v. Shaw , 560 F.3d 1230, 1238 (11th Cir. 2009) )

.

Case: 17-13020 Date Filed: 05/03/2018 Page: 2 of 53 Marimon’s position that these considerations a re insufficient to justify the 12 month upward variance i mposed by the district court is unavailing. First, he cites
the court’s inaccurate “finding” that Marimon “essentially made a life of committing crimes against the United States.” A review of the record reveals that what Marimon characterizes as a finding is, actually, a turn of phrase. The statements surrounding the court’s reference s to a “lifetime” illustrate awareness that Marimon was, in fact , involved in criminal activity betw een 2007 and 2011. The essence of the district court’s observation, which is accurate, is that Marimon has a history of criminal behavior

— three prior arrests and convictions, to
be exact

. And, as the district court further noted, Marimon continued his involvement with the fraudulent Medicare scheme at the heart of this case after having been arrested twice in 2010 for insurance fraud. These facts are sufficient to support the district court’s “ concern about the need to impose a sentence that protects t he public against the likelihood that Mr. Marimon will continue to engage in fraudulent . . . conduct subsequent to his discharge from the Bureau of Prisons.” 2
See United States v. Rosales

- Bruno , 789 F.3d 1249, 1261 (11th Cir. 2015)

2 Marimon’ s attempt to challenge his upward variance by distinguishing himself from defendants with more serious crimina l histories whose upward variances were affirmed is also unavailing. It does not follow from the fact that panels have affirmed upward variances imposed on defendants with more serious criminal histories that imposing a similar upward variance of a defenda nt with a less serious criminal history is an abuse of discretion, particularly where, as here, factors other than the defendant’s criminal history support the variance

.

Case: 17-13020 Date Filed: 05/03/2018 Page: 3 of 54 (“District courts have broad leeway in deciding how much weight to give to prior crimes the defendant has committed.”). Next, Marimon attacks the district court’s determination that he “continues to live beyond his means.” Specifically, he contends the record does not contain evidence sufficient to support the district court’s finding. Marimon’s contention is
incorrect . The presentence investigation report (P SR) reflects that although Marim on’s checking account contained $ 10, one of his monthly expenses was a $600 car payment on a 2015 Mercedes ML 350. The district court was entitled to base its findings of fact on u ndisputed statements in the PSR and, therefore, did not

err . See United States v. Bennett , 472 F.3d 825, 83 2 (11th Cir. 2006). Finally, Marimon asserts his sentence is unreasonable both because th e court purportedly acknowledged a within

- guidelines sentence would have suffice d and because the upward variance contravene d the terms of his plea agreement. B oth arguments fail. Marimon mischaracterizes the district court’s statement regarding its acceptance of his plea as an admission that a sentence within the statutory guidelines would have been appropriate. A s the G overnment correctly notes , the statement ref lects the court’s position that Marimon’s plea to the single count of conspiracy sufficed to reflect th e seriousness of his conduct. As to Marimon’s argument that his sentence goes against his plea agreement, the agreement states that the parties acknow ledge the court i s not bound to sentence within the guideline

Case: 17-13020 Date Filed: 05/03/2018 Page: 4 of 55 range or the recommended sentence. See United States v. Eldick , 443 F.3d 783, 790 (11th Cir. 2006) (holding that the court was not required by the plea agreement to impose a sentence within the guideline range); Smith v. United States , 670 F.2d 145, 14 7

- 4 8 (11th Cir. 1982) (holding that sentencing recommendations cannot be made binding on the trial judge). Moreover, Marimon acknowledged during the plea hearing and in signing the plea agreement that the court was not bound by the sentencing guidelines and could impose any sentence up to the statutory maximum. We conclude t he district cou rt’s 90

- month sentence, which i s 12 months above the high end of the guidelines range, i s substantively reas onable because the district court provided a “sufficiently compelling” justification to support the degree of the variance. Gall v. United States , 552 U.S. 38, 50 (2007).
AFFIRMED . Case: 17-13020 Date Filed: 05/03/2018 Page: 5 of 5