[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

__________________________ No. 17

- 13288 Non

- Argument Calendar

__________________________ D.C. Docket No. 3:10

- cr - 00087

- AKK

- JHE

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
versus STEPHEN ANTHONY LEDONNE , a.k.a. Stephen Anthony Wiltsie, Defendant

- Appellant

.

__________________________ Appeal from the United States District Court for the Northern District of Alabama

__________________________ ( July 20, 2018 ) Before TJOFLAT, MARCUS, and ROSENBAUM , Circuit Judges.
PER CURIAM:

Case: 17-13288 Date Filed: 07/20/2018 Page: 1 of 82 Stephen LeDo nne appeals his sentence of two years’ imprisonment and five years’ supervised release, a variance above the guideline range, 1 imposed following the revocation of his supervis ed release. LeDonne argues that his
sente nce is procedurally unreasonable because it was based on a clearly erroneous fact ual determination . He also argues that it is substantively unreasonable because the District Court improperly considered an impermis sible factor and did not provide a sufficiently compelling justification for deciding to impose a sentence above the guideline range. After a thorough review of the rec ord and relevant case law, we reject these arguments, and affirm

. I. We review for rea sonableness the sentence imposed by a district court upon the revocation of supervised release. United States v. Velasquez Velasquez , 524 F.3d 1248, 1252 (11th Cir. 2008). The reasonableness of the sentence is reviewed for abuse of discretion. United S tates v. Trailer , 827 F.3d 933, 935 (11th Cir. 2016). We review de novo the legal question whether the district court considered an impermissible factor in sentencing

. Velasquez Velasquez , 524 F.3d at 1252. We review the district court’s factual findings for clear error. United States v. White , 335 F.3d 1314, 1317 (11th Cir. 2003).

1 The applicable guideline range was six to twelve months’ imprisonment. The statutory maximum sentence is two years. See 18 U.S.C. §§ 3585(e)(3), 25550(a), 3559(a)(3).

Case: 17-13288 Date Filed: 07/20/2018 Page: 2 of 83 If a district court finds by a preponderance of the evidence that a defendant has violated a term of his supervised release, t he court may revoke the defendant’s supervised release and sentence him to prison. 18 U.S.C. § 3583(e)(3). In doing so, the Court must consider certain factors set out in 18 U.S.C. § 3553(a), including the history and characteristics of the defendant, th e need to afford adequate deterrence and protect the public from the defendant, and the need for the sentence imposed to provide the defendant with correctional treatment in the most effective

manner. Id. §§ 3583(e)(3), 3553(a)(1), (2)(B)

– (D).
A. First, we must ensure the District Court committed no significant procedural error, such as miscalculating the guideline range , treating the guidelines as mandatory , failing to consider certain § 3553 factors, selecting a sentence b ased on clearly erroneous facts , or failing to adequately explain the chosen sentence, including explaining any deviation from the Guideline range. Gall v. United
States , 552 U.S. 38, 51 , 128 S. Ct. 586, 597 (2007). When a defendant challenges one of the factual bases of his sentenc e, the G overnment has the burden of establishing the disputed fact by a preponderance of the evidence. United States v. Rodriguez , 732 F.3d 1299, 1305 (11th Cir. 2013). In determining whether factors exist that would enhance a defendant’s sentence, the s entencing court may consider any information (including hearsay) , provided

Case: 17-13288 Date Filed: 07/20/2018 Page: 3 of 84 that (1) the evidence ha s sufficient indicia of reliability, (2) the court makes explicit findings of fact as to credibility, and (3) the defendant has an opportunity to rebut the evidence. United States v. Ghertler , 605 F.3d 1256, 1269 (11th Cir. 2016). A defendant has a due process right not to be sentenced based on false or unreliable information. Id. To prevail on a challenge to such information, the defendant must show that the challenged evidence is materially false or unreliable, and that it actually served as a basis for his sentence. Id. Moreover, the defendant “bears the burden of showin g that the [sentencing] court explicitly relied on the information.” Id. (quotation marks omitted) (emphasis added). The justification for varying from the guideline sentencing range cannot be based on a clearly erroneous fact. See Ghertler , 605 F.3d a t 1269; Gall , 552 U.S. at 51 , 128 S. Ct. at 597 . Here, LeDonne disputes the District Court’s apparent conclusion that a two

- year sentence would result in LeDonne having the best chance of being successfully transferred to Tennessee after his release. But

a ssuming this is a fact , and thus that the Government was required to prove it by a preponderance of the evidence, we cannot say the District Court erred in finding that the Government did so. The parties agreed that it was the probation officer’s opinion that a two

- year sentence would provide the best chance for LeDonne to transfer to Tennessee. Neither party introduced additional evidence regarding the veracity of that

Case: 17-13288 Date Filed: 07/20/2018 Page: 4 of 85 opinion. 2 Accordingly, the District Court

— with only the probation officer’s opinion before it

— did not clearly err in finding that LeDonne would, more likely than not, have the best chance of a transfer to Tennessee if he served a two

- year
sentence. LeDonne does not point to an ything i n the record suggesting this factual finding was clearly erroneous, nor can he show that the probation officer’s opinion was materially false or unreliable. Accordingly, the Court’s reliance on this information does not present a due process probl em. See Ghertler , 605 F.3d at 1269. LeDonne’s sentence was not procedurally unreasonable.
B. Having found the sentence procedurally sound, our next task is to evaluate its substantive reasonableness. Gall , 552 U.S. at 51 , 128 S. Ct. at 597

. A district court abuses its discretion and imposes a substantively unreasonable sentence when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3 ) commits a clear error of judgment in considering the proper factors. United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010) ( en banc ). This Court will not vacate a sentence merely because we believe a different sentence more appropriate; we will vacate a sentence only if, after engaging in the

2 LeDonne argues that, at the sentencing hearing, he disputed the validity of that claim

. But LeDonne did not proffer anything challenging the validity of the claim that a two

- year sentence gave him the best chance of a transfer. He merely maintained that the probability of a transfer was uncertain.

Case: 17-13288 Date Filed: 07/20/2018 Page: 5 of 86 proper analysis , 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 t he range of reasonable sentences dictated by the facts of the case.” Id. at 1190

– 91 (quotation marks omitted)

. We cannot presume that a sentence imposed outside the guideline range is unreasonable. United States v. Rosales

- Bruno , 789 F.3d 1249, 1255 (11 th Cir. 2015). Instead, the party challenging the sentence has the burden of establishing that it is unreasonable in light of the entire record, the § 3553(a) factors, and the deference accorded to the sentencing court. Id. at 1256. Nevertheless, a sent ence based entirely on an impermissible factor is unreasonable because it does not achieve the purposes of § 3553(a). Velasquez Velasquez , 524 F.3d at 1252. In applying the abuse of discretion standard to a sentence outside the guideline range, we must ensure the sentencing court’s justification for the variance is sufficiently compelling. Irey , 612 F.3d at 1186

– 87. But in doing so, we must give proper deference to the district court’s reasoned decision that the § 3553(a) factors, viewed as a whole, ju stify the extent of the variance. Id. at 1187. Here, LeDonne ’s counsel explicitly advised the District Court that she believed LeDonne would have the best chance of success if he were able to return to Tennessee to be more connected with his family. A fair reading of this
statement

— and the one it seems the District Court accepted

— is that LeDonne was

Case: 17-13288 Date Filed: 07/20/2018 Page: 6 of 87 asking the Court to consider the probability of a successful transfer in crafting his sentence; and that LeDonne’s desire was not to transfer jurisdictions per se , but

was primarily to be in a n environment where he would be more motivated to succeed and more connected with his family. In effect, then, the subj ect of transferring to Tennessee was about LeDon ne ’s personal history and characteristics , and how to provide him correctional treatment most effectively

— proper sentencing factors to consider under § 3553(a)(1) and (2)(D). Even if the probability of transfer were an entirely independent consideration, of no moment to the § 3553(a) factors, we would s till affirm unless the Court based LeDonne’s sentence entirely on that consideration, or at least gave it “significant weight” in crafting his sentence. E.g. United States v. Plate , 839 F.3d 950, 957 (11th Cir. 2016). But the Court’s ultimate explanation for the sentence indicates that its principal focus was on deterrence and impressing upon LeDonne the importance of comply ing with his release conditions; and that the Court’s mention of the possible transfer to Tennessee was merely an acknowledgment that , if nothing else, LeDonne’s desire to successfully transfer would motivate him to follow the rules. The Court did not give significant weight to the probability of transfer as an independent factor. Rather, the Court was well within its discretion to gi ve significant weight to deterrence, and LeDonne has not met his burden of establishing that his sentence

Case: 17-13288 Date Filed: 07/20/2018 Page: 7 of 88 was unreasonable in light of the sentencing factors, the record as a whole, and the deference we owe to the District C ourt. See Rosales

- Bruno , 789 F. 3d at 1255

– 56. The District Court was rightly concerned with ensuring that LeDonne , who had violated the terms of his release multiple times , would not violate them again. See Irey , 612 F.3d at 1186

– 87.
II. Because LeDonne’s sentence was both procedural ly and substantively reasonable, we affirm. AFFIRMED. Case: 17-13288 Date Filed: 07/20/2018 Page: 8 of 8