FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 16, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14743

Non-Argument Calendar

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D. C. Docket No. 07-10015-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAMIAN FABIAN, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 16, 2008)

Before BIRCH, TJOFLAT and BLACK, Circuit Judges.

PER CURIAM:

Damian Fabian appeals his thirty-four-month sentence imposed after
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pleading guilty to possession of a fraudulent document, in violation of 18 U.S.C.

§ 1546(a) (“Count 1”), and aggravated identity theft, in violation of 18 U.S.C.

§ 1028A (“Count 2”). We affirm. 

I. BACKGROUND

On July 19, 2007, Fabian pled guilty to violation of 18 U.S.C. § 1546(a) and

18 U.S.C. § 1028A without a plea agreement. He had completed an I-9

employment eligibility verification form to become employed at Sauer, Inc., for a

construction project at the United States Naval Air Station in Key West, Florida

(“NAS”). Fabian certified that he was eligible to work in the United States by

submitting a Social Security card. To work at the NAS, he was required to obtain

an identification badge from the NAS security office. Fabian submitted his Social

Security card as identification to the security office. Because the authenticity of

the card appeared questionable, a check of his immigration records was conducted. 

The review revealed that Fabian was an unlawful alien with an outstanding March

17, 2006, order of removal to Mexico. Additionally, although Fabian’s purported

Social Security number was valid, it did not belong to him. 

Concerning Count 1, Fabian’s Presentence Investigation Report (“PSI”)

shows a base offense level of 8. He received a two-level increase because he is an

unlawful alien who was deported prior to this crime. His PSI also shows a two-
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level reduction for acceptance of responsibility. Fabian was assigned a criminal

history category of II. Based on a total offense level of 8 and a criminal history

category of II, the Sentencing Guidelines imprisonment range was four to ten

months. Additionally, Count 1 includes a statutory penalty of zero to ten years of

imprisonment. 18 U.S.C. § 1546(a). Count 2 contains a mandatory statutory

penalty of two years of imprisonment to be served consecutive to any other

sentence. 18 U.S.C. § 1028A(a)(1). Fabian’s counsel did not object to the PSI. 

During the sentencing hearing, Fabian told the district judge that he had used

the fraudulent Social Security card only to obtain work in the United States. He

stated that he chose the fraudulent Social Security number at random and that he

had no intention of stealing anyone’s identity. Fabian’s counsel requested that the

judge consider imposing a sentence at the low end of the Sentencing Guidelines for

Count 1, since Fabian was in the United States to work. The district judge said that

he had considered the statements of Fabian, the PSI, and the statutory factors. He

sentenced Fabian to ten months of imprisonment for Count 1 and twenty-four

months of imprisonment for Count 2 to run consecutively, yielding a total sentence

of thirty-four months of imprisonment.

On appeal, Fabian’s counsel challenges the reasonableness of his ten months

of imprisonment on Count 1. He contends that 18 U.S.C. § 3553(a) mandates a 
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sentence “sufficient, but not greater than necessary” to achieve the sentencing

goals of punishment, deterrence, and rehabilitation. Id. Fabian’s appellate

argument is that the sentence imposed by the district judge is unreasonable because

it is greater than necessary to achieve the stated goals and, therefore, should be

vacated.

II. DISCUSSION

We review a sentence imposed by a district judge for reasonableness in view

of the 18 U.S.C. § 3553(a) factors. United States v. Winingear, 422 F.3d 1241,

1244-46 (11th Cir. 2005) (per curiam). When reviewing for reasonableness, the

Supreme Court has clarified that we are to apply the deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. ___, __, 128 S.Ct. 586, 591 (2007). If

we conclude that the district court made no procedural errors, we “should then

consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id., 552 U.S. at ___, 128 S.Ct. at 597; see United

States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir. 2006) (“After Booker, a

sentence may be reviewed for procedural or substantive unreasonableness.”). 

Reasonableness review is “deferential,” and “the party who challenges the

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

of both [the] record and the factors in section 3553(a).” United States v. Talley,
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431 F.3d 784, 788 (11th Cir. 2005) (per curiam). The district judge need not state

on the record that he or she has explicitly considered each factor and need not

discuss each factor; acknowledgment of considering the “defendant's arguments

and the factors in section 3553(a) is sufficient under Booker.” Id. at 786. The

weight accorded to the § 3553(a) factors is within the sentencing judge's discretion. 

United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). 

We have rejected the argument that a sentence within the Sentencing

Guidelines is per se reasonable. Talley, 431 F.3d at 787. The district judge may

choose from a range of sentences within the Sentencing Guidelines, which we

ordinarily expect to be reasonable. Id. at 788. When considering whether a

defendant's sentence is reasonable, we have compared the sentence actually

imposed to the statutory maximum. Winingear, 422 F.3d at 1246.

Fabian is not challenging his sentence on procedural grounds; he appeals 

only the substantive reasonableness of his sentence. Additionally, Fabian is not

appealing the reasonableness of his mandatory consecutive sentence of twenty-four

months imposed for Count 2. His sole issue on appeal is the reasonableness of his

ten-month sentence for Count 1.

Fabian has failed to meet his burden of establishing that his sentence is

unreasonable, and the district judge did not abuse his discretion by imposing a ten-
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month sentence for Count 1. Defense counsel’s argument on appeal is that a lower

sentence would have been adequate to meet the § 3553(a) factors of punishment,

deterrence, and rehabilitation. Nonetheless, he fails to cite anything in the record

or any case law to support his argument. The basis of his argument appears to be

statements requesting a sentence at the low end of the Sentencing Guidelines range

that he made at the sentencing hearing, because Fabian did not intend to steal

anyone’s identity and had used the fraudulent Social Security card only to work in

the United States. 

The district judge stated that he had considered Fabian’s statements and the

statutory factors in reaching his sentencing decision. Defense counsel has failed to

cite any evidence from the record or legal authority that would support his claim

that the district judge abused his discretion in weighing Fabian’s statements and

the statutory factors. Significantly, Fabian’s sentence was within the Sentencing

Guidelines. We also compare the sentence actually imposed to the statutory

maximum in reviewing reasonableness. Winingear, 422 F.3d at 1246. Fabian’s

ten-month sentence for Count 1 is significantly lower than the potential ten-year,

statutory maximum. We conclude that the district judge did not abuse his

discretion in determining Fabian’s sentence.
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III. CONCLUSION

Fabian has appealed his ten-month sentence on Count 1 for fraudulently

possessing a Social Security card that he used to prove his identity for a job

requiring security clearance. As we have explained, Fabian has failed to meet his

burden of establishing that his sentence was unreasonable. Because his sentence

was within both the Sentencing Guidelines and the statutory range, the district

judge did not abuse his discretion by sentencing Fabian to ten months of

imprisonment on Count 1 for a cumulative total of thirty-four months of

imprisonment. Accordingly, Fabian’s sentence is AFFIRMED.