FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10329

Non-Argument Calendar

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D. C. Docket No. 08-00005-CV-DHB-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERICK GREGORY MARTIN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(August 18, 2009)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:
Erick Gregory Martin appeals the district court’s 60-month sentence, the

result of a 3-month upward variance, following his conviction for being a felon in

possession of a firearm. On appeal, he contends that this sentence was

unreasonable. For the reasons set forth below, we affirm.

I.

A federal grand jury returned an indictment against Martin, charging him

with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(Count One), and possession of crack cocaine, in violation of 21 U.S.C. § 844

(Count Two). Pursuant to a written plea agreement, Martin pled guilty to Count

One of the indictment, and the government agreed to dismiss Count Two.

In preparing a pre-sentence investigation report (“PSI”), the probation

officer determined that Martin had a total offense level of 21 and a criminal history

category of III, giving him an applicable guideline range of 46 to 57 months’

imprisonment. Martin’s criminal history category of III was based on a 1999

conviction in Georgia for possession with intent to distribute cocaine, a 2002

conviction in Georgia for possession of marijuana and obstruction of an officer,

and the fact that he committed the instant offense while on probation for the 1999

offense. In this respect, from 2001 to 2008, Martin had his probation for the 1999

offense revoked and reinstated numerous times. In addition, and although they did

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not result in any criminal history points, Martin was convicted in Georgia of

several offenses between 1993 and 1998, including: carrying a firearm without a

license and discharging firearms; carrying a concealed weapon; simple battery and

obstruction of an officer (for which he had his probation revoked); possession of

marijuana with intent to distribute (for which he had his probation revoked three

times); simple battery (for which he had his probation revoked); obstruction of an

officer; and driving with a suspended license. Because this criminal conduct did

not affect Martin’s criminal history category, the probation officer recommended

either an upward departure under the Guidelines or an upward variance under the

18 U.S.C. § 3553(a) factors.

At sentencing, and after confirming that there were no objections to the PSI,

the court adopted the probation officer’s factual statements and guideline

calculations. Defense counsel then called Earnest Wade, coordinator of the

fatherhood program at the Heart of Georgia Technical School, a program designed

to provide vocational training and rehabilitation to young men coming out of

prison. Having known Martin all of Martin’s life, Wade testified favorably as to

Martin’s character, explained that Martin had performed well and graduated from

the fatherhood program back in 2006, and requested a lenient sentence in order to

both minimize the harm to Martin’s five children and get Martin back into the

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fatherhood program. In engaging Wade in a discussion regarding the fatherhood

program and recidivist behavior in general, the court expressed concern over

Martin’s criminal history and the number of lenient opportunities that he had in the

past.

Despite acknowledging Martin’s lengthy criminal history, defense counsel

requested that the court impose a sentence at the low-end of the guideline range,

emphasizing Martin’s drug problem and the possibility of rehabilitation. After

Martin personally apologized for his actions and expressed his new found devotion

to religion, the government requested that the court impose an upward variance to

65 months’ imprisonment in light of Martin’s criminal history.

After stating that it had considered the PSI, the advisory guideline range, the

§ 3553(a) factors, and “everything else [it] kn[e]w about the Sentencing Reform

Act and the federal law relating to sentencing,” the court sentenced Martin to 60

months’ imprisonment. In imposing this three-month upward variance, the court

emphasized Martin’s pattern of recidivism. This appeal followed.

II.

We review a defendant’s sentence for reasonableness under an

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, __, 128 S.Ct.

586, 591, 169 L.Ed.2d 445 (2007). “[T]he party who challenges the sentence bears

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the burden of establishing that the sentence is unreasonable in the light of both that

record and the factors in section 3553(a).” U.S. v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). “Review for reasonableness is deferential. We must evaluate whether

the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” Id.

III.

In this case, Martin contends that his sentence was substantively

unreasonable, but the only argument he advances on appeal to support this

contention is that the reasons justifying the district court’s upward variance were

already “contemplated and addressed by the guideline themselves.” Even

assuming arguendo that the premise of Martin’s argument is correct, he offers no

legal support for this assertion, and we have previously rejected a very similarly

argument. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007)

(“And as for Amedeo’s argument that certain aspects of his conduct . . . had

already been considered in imposing an enhancement under [the Guidelines],

Amedeo points to no authority that deems it impermissible for the district court to

also have considered this conduct in imposing a variance in light of the factors set

forth in § 3553(a).”). Furthermore, Martin’s conclusory statement at the end of his

brief that a three-month variance was “not likely to impact [Martin] or the public”

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is wholly inadequate to show that the court’s sentence was somehow substantively

unreasonable. Accordingly, Martin has not met his burden in this regard, and we

therefore affirm his sentence.

AFFIRMED.

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