FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15025

Non-Argument Calendar

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D. C. Docket No. 08-00048-CR-WTM-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT E. HOLLAND, JR.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(March 6, 2009)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

Robert Holland pleaded guilty to conspiracy to commit mail fraud, in

violation of 18 U.S.C. § 371, in connection with his scheme to use his two auto
sales companies to purchase vehicles using buyer’s drafts that were worthless due

to insufficient funds. The cars were sold to individuals or other car auction

companies without proper title and Holland attempted to conceal the fraud by

issuing numerous temporary automobile tags.

In the presentence investigation report (“PSI”), the probation officer

determined the advisory guidelines range to be 27 to 33 months’ imprisonment,

based on an adjusted offense level of 18 and a criminal history category of I. The

statutory maximum was five years’ imprisonment. 18 U.S.C. § 371. The

probation officer recommended a sentence of 27 months, which was at the low end

of the guidelines range.

Holland filed no objections to the PSI and did not raise any objections at the

sentencing hearing. He did, however, request a downward departure from the

guidelines range on the ground that the low end of the range was excessive. In

support of his sentencing request, Holland noted that he had been employed

throughout the pending case, he had no other criminal history, he had been married

for twenty-six years and had two children, and he had not committed the offenses

to support an extravagant lifestyle. He explained that he was not a thief who

profited from his crime. The court stated that Holland was, in fact, a thief because

he took other people’s property without paying for it. Counsel clarified that

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Holland was not trying to live extravagantly from his profits but was using the

money to keep his business going and pay other debts. Holland then presented

character testimony from several mitigating witnesses.

After stating that it had considered the guidelines range, the sentencing

factors in 18 U.S.C. § 3553(a), and Holland’s arguments, and had listened to the

mitigating witnesses, the court found there was no basis to depart. Accordingly,

the court sentenced Holland to 27 months’ imprisonment. Holland now appeals,

asserting that the sentence imposed is unreasonable given the facts of his case and

his personal characteristics.

We review a defendant’s sentence for reasonableness in the light of the

factors set out in § 3553(a). See United States v. Winingear, 422 F.3d 1241,

1244-46 (11th Cir. 2005). The reasonableness of a sentence imposed by the court

is evaluated under a deferential abuse-of-discretion standard. Gall v. United States,

128 S.Ct. 586, 597 (2007).

A district court’s imposition of sentence must be both procedurally and

substantively reasonable. A sentence may be procedurally unreasonable if, for

example, the district court incorrectly calculates the Guidelines range or fails to

properly consider the § 3553(a) sentencing factors. Gall, 128 S.Ct. at 597. In this

case, Holland does not allege that his sentence was procedurally unreasonable.

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Thus, the only issue is whether the sentence was substantively reasonable.

Substantive reasonableness requires that the totality of the circumstances be

considered and that the statutory factors of § 3553(a) support the sentence in

question. Id. Under § 3553(a), a district court should consider, among other

things, the nature and circumstances of the offense, the history and characteristics

of the defendant, and the need for the sentence to provide adequate deterrence,

respect for the law, and protection of the public. See 18 U.S.C. § 3553(a)(1)-(7).

Holland bears the burden of showing his sentence is substantively unreasonable.

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Here, Holland cannot meet his burden. “Although a sentence within the

guidelines range is not per se reasonable, when the district court imposes a

sentence within the advisory Guidelines range, [this court] ordinarily will expect

that choice to be a reasonable one.” Talley, 431 F.3d at 788; see also Rita v.

United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63 (2007) (noting that a

sentence within the properly calculated Guidelines range “significantly increases

the likelihood that the sentence is a reasonable one.”).

In this case, the court explained that a sentence at the low end of the range

was appropriate. Moreover, the court’s statement that it had considered the

arguments, the guidelines range, the mitigating witnesses’ testimony, and the

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§ 3553(a) factors was sufficient, as the court was not required to explicitly discuss

each factor. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir.), cert.

denied, 128 S.Ct. 427 (2007). Notably, the fact that the sentence imposed was well

below the five-year statutory maximum is further support for the reasonableness of

the sentence. Winingear, 422 F.3d at 1246.

We further conclude there is no merit to Holland’s argument that the district

court failed to give weight to the particular factors he claimed supported a lower

sentence. The weight given to particular factors is within the district court’s

discretion. See United States v. Williams, 456 F.3d 1353, 1354-55 (11th Cir.

2006), abrogated on other grounds, Kimbrough v. United States, 128 S.Ct. 558

(2007). Accordingly, Holland has not shown that the sentence imposed was

substantively unreasonable, and we AFFIRM.

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