FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 5, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 09-15195 & 09-15196

Non-Argument Calendar

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D. C. Docket No. 08-00069-CR-FTM-29DNF

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARSH SHARMA,

Defendant-Appellant.

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Appeals from the United States District Court

for the Middle District of Florida

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(January 5, 2011)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Appellant Harsh Sharma appeals the 60-month total prison sentence imposed

by the district court following his conviction on one count of knowingly

distributing controlled substances, Hydrocodone and Diazepam, and two counts of

knowingly possessing with intent to distribute Hydrocodone.

As an initial matter, Sharma’s plea agreement contained an appeal waiver.

The appeal waiver expressly permits Sharma to appeal his sentence where the

sentence exceeds the guideline range as determined by the district court.

Accordingly, Sharma’s argument against enforcement of his appeal waiver is

superfluous.

I.

Sharma first argues that the district court erred in applying a two-level

increase at sentencing for abuse of position of trust, pursuant to U.S.S.G. § 3B1.3,

as the enhancement was not supported by the evidence presented at sentencing.

Sharma concedes that he withdrew his objection to this enhancement, but

maintains that he is still entitled to relief on appeal.

We have held that a defendant’s clear and affirmative withdrawal of a

sentencing objection precludes review of such objection on appeal. United States

v. Horsfall, 552 F.3d 1275, 1283-84 (11th Cir. 2008), cert. denied, 129 S. Ct. 2034

(2009); see also United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997)

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(defendant waived objection to upward departure).

On this record, we conclude that Sharma cannot obtain review of the

enhancement he received for abuse of a position of trust because he expressly

withdrew his objection to this enhancement at the sentencing hearing. When the

government prepared to present testimony at Sharma’s sentencing hearing in

support of the proposed enhancement for abuse of a position of trust, Sharma’s

counsel announced that Sharma was withdrawing his earlier objection to the

enhancement. Upon being informed that Sharma was withdrawing his objection,

the district court confirmed directly with Sharma that he agreed with the decision

to withdraw his objection, and that he understood he was therefore facing an

additional two-level increase to his total offense level. The district court’s actions

in this regard are similar to Horsfall, wherein the district court went the additional

step of exploring the decision to waive the sentencing objection directly with the

defendant, to ensure that it was knowing and voluntary. Horsfall, 552 F.3d at

1283. Per Horsfall, Sharma has therefore waived any argument he may have had

regarding the challenged enhancement. Id.

II.

Sharma next argues that his total sentence was substantively unreasonable in

light of the 18 U.S.C. § 3553(a) factors and the purposes of the Sentencing

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Guidelines. Sharma essentially challenges the district court’s weighing of the

§ 3553(a) factors and its purported rejection of his mitigation arguments.

“Courts of appeals must review all sentences-whether inside, just outside, or

significantly outside the Guidelines range-under a deferential abuse-of-discretion

standard.” United States v. Sanchez, 586 F.3d 918, 935 (11th Cir. 2009), cert.

denied, 130 S. Ct. 1926 (2010) (citing Gall v. United States, 552 U.S. 38, 40, 128

S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007) (alterations omitted)). Accordingly, we

review sentencing decisions for an abuse of discretion. United States v. Irey, 612

F.3d 1160, 1189-90 (11th Cir. 2010) (en banc); United States v. Shaw, 560 F.3d

1230, 1237 (11th Cir. 2009), cert. denied, 129 S. Ct. 2847 (2009). We evaluate the

substantive reasonableness of a sentence under the totality of the circumstances,

including the extent of any upward or downward variance from the guidelines.

Irey, 612 F.3d at 1189-90. “Sentences outside the guidelines are not presumed to

be unreasonable, but [the Court] may take the extent of any variance into [its]

calculus.” Shaw, 560 F.3d at 1237 (citation omitted).

“When the district court decides after serious consideration that a variance is

in order, it should explain why that variance is appropriate in a particular case with

sufficient justifications.” Shaw, 560 F.3d at 1238 (internal quotation marks

omitted). “The justifications must be compelling enough to support the degree of

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the variance and complete enough to allow meaningful appellate review. But the

Supreme Court has specifically rejected the idea that an extraordinary justification

is required for a sentence outside the guidelines range.” Id. (internal quotation

marks omitted).

Because of its institutional advantage in making sentence

determinations, a district court has considerable

discretion in deciding whether the § 3553(a) factors

justify a variance and the extent of one that is

appropriate. We must give its decision due deference.

We may vacate a sentence because of the variance only if

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 of reasonable sentences

dictated by the facts of the case. However, that we might

reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal.

Shaw, at 1238 (citations and internal quotation marks omitted).

“A defendant challenging his sentence bears the burden of establishing that

it is unreasonable.” Sanchez, 586 F.3d at 935 (citation omitted).

Sharma has failed to demonstrate that his sentence is substantively

unreasonable as a result of the upward variance applied by the district court. As

required by precedent, the district court explained its decision to apply an upward

variance, citing in its Statement of Reasons its reliance on several of the § 3553(a)

factors, including the nature and circumstances of the offenses, the seriousness of

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the offenses, the need for just punishment and deterrence, and the need to protect

the public from Sharma’s further crimes. The concurrent 60-month prison

sentences imposed, though significantly above the 41-month high-end for each

count of conviction under the applicable guideline, are still significantly less than

the statutory maximum of 15 years (5 years for each count of conviction). Under

these facts, Sharma has failed to meet his burden to show that the district court

abused its discretion, i.e., that his sentence was unreasonable. See, e.g., Sanchez,

586 F.3d at 934 (sentence was not unreasonable where the district court applied

both an upward departure and an upward variance based on criminal history,

imposing a 200-month prison sentence where the guideline range before an upward

departure was 130 to 162 months); Shaw, 560 F.3d at 1236-37 (sentence was not

unreasonable where district court varied upward based on several § 3553(a)

factors, imposing a statutory maximum 120-month sentence where the guideline

range was 30 to 37 months).

For the aforementioned reasons, we affirm Sharma’s sentences.

AFFIRMED.

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