[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 12724 Non

- Argument Calendar

________________________ D.C. Docket No. 1:18

- cr - 00340

- KD

- B

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MARCO ANTONIO PEREZ, Defendant

- Appel lant.

________________________ Appeal from the United States District Court for the Southern District of Alabama

________________________ (March 19, 2020) Before NEWSOM , BRANCH , and L UCK , Circuit Judges.
PER CURIAM:

Case: 19-12724 Date Filed: 03/19/2020 Page: 1 of 82 Marco Perez appeals his fifty

- one - month sentence f or possession of stolen firearms in violation of 18 U.S.C. § 922(j)

. He argues that the district court incorrectly applied the sentencing guidelines. The government claims that , r egardless of whether the district court erred, we should still affirm the sentence because the district court stated it would impose an identical sentence notwithstanding any error in its guidelines calculations. See United States v. Keene , 470 F.3d 1347 , 1350 (11th Cir. 2006) ( “[I]t would make no sense to set aside [a] reasonable sentence and send the case back to the district court [because of an error in calculating the sentencing guidelines] since it has already told us that it would impose exactly the same sentence, a sentence we would be compe lled to affirm.”)

. We agree that Keene applies ; i f there was an y error in the district court’s guidelines calculations , it was harmless ; and the sentence was substantively reasonable. We therefore affirm. BACKGROUND Perez ple a d ed guilty to one count of possession of stolen firearms

. At his sentencing hearing , he objected to a two

- level sentenc e enhancement because his offense involved four firearms and a two

- level enhancement for obstructing justice. Perez also objected to the district court’s refusal to apply a three

- level reduction for acceptance of responsibility. The district court overruled all three objections. Based on the presentenc e investigation report, the district court noted a total offense level of twenty with a criminal history category of IV, resulting in a guideline s sentencing

Case: 19-12724 Date Filed: 03/19/2020 Page: 2 of 83 range of fifty

- one to sixty

- three months. According to Perez, the appropriate guidelines sentencing range should have been twenty

- four to thirty months based on an offense level of thirteen and a criminal history category of IV. At the sentencing hearing, after considering the 18 U.S.C. § 3553(a) factors,
t he district court sentenced Perez to fifty

- one months ’ imprisonment and noted that was “an appropriate sentence, whether [ it had ] correctly calculated the guidelines or
not.” In making that determination, i t gave Perez credit for pleading guilty and not forcing the government to prove its case. It a lso acknowledged that Perez had an extensive criminal history consisting of fourteen prior burglary and theft offenses and that he absconded from pretrial supervision during which time he fatally shot Mobile Police Department Officer Sean Tuder. Perez now appeals his sentence. He argues that the district court inappropriately applied the enhancements and that it should have applied the three

- level reduction for acceptance of responsibility

. Perez also claims , for the first time on appeal, that had the district court sustained his objections and the proper guidelines range was twenty

- four to thir ty months , it could not have made an upwa rd departure from the s entencing g uidelines to impose a fifty

- one - month sentence because he had not received notice of its intent to impose an upward departure. The government responds that we do not need to consider Perez’s arguments regarding his guidel ines

Case: 19-12724 Date Filed: 03/19/2020 Page: 3 of 84 range because the district court stated that it would impose the same sentence regardless of any guidelines error and that notice wa s not required

. STANDARD OF REVIEW We normally review a district court’s application of the sentencing guidelines de novo and its factual findings for clear error. United States v. Maitre , 898 F .3d
1151 , 1159 (11th Cir. 20 18 ). Whe n a district court states that it would have imposed the same sentence irrespective of an alleged guidelines calculation error, however, the assumed error is harmless , and we will affirm the sentence if it is reasonable.
Keene , 470 F.3d at 1348

– 49. We revi ew whether a sentence is substantively reasonable for abuse of discretion. United States v. Irey , 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc). DISCUSSION
Sentence We first review Perez’s claims regarding error in the district court’s guidelines calculation. In Keene , much like in this case, the defendant argued that the district court made a guidelines calculation error. 470 F.3d at 13 48

. In that case, t he district court imposed a sentence within the guidelines range over the defendant’s objection , but also noted that it would have imposed the same sentence under 18 U.S.C. § 3553(a) even if it got the guidelines calculation wrong. Id. We observed that “it would make no sense to set aside [a] reasonable sentence and send the case back to

Case: 19-12724 Date Filed: 03/19/2020 Page: 4 of 85 the district court” whe re the district court had already stated that it would impose the same sentence regardless of the g uidelines and we , therefore, “would be co mpelled to affirm.” Id. at 1350. To determine whether the Keene rule applies, we first ask whether “the district court would have reached the same result even if it had decided the guidelines issue the other way .” Id. at 1349. Second, we ask whether “ the sentence would be reasonable even if the guidelines issue had been decided in the defendant’s favor.” Id. In assessing reasonableness, we assume that the claimed guidelines calculation error occurred, adjust the guideline s range accordingly, and ask whether the sentence imposed is reasonable under the 18 U.S.C. § 3553(a) factors. Id. at 1349. The defendant has the burden of “ prov [ing] that his sentence is unreasonable in l ight of the record and § 3553(a). ” Id. at 1350. If the district court imposed a reasonable sentence, we affirm. Here, the district court imposed a guidelines sentence, but also found the sentence reasonable even if it had made a guidelines error. It said that fifty

- one months
was “ an appropriate sentence, whether [it had] correctly calculated the guidelines or
not.” Kee ne therefore applies , and we turn to whether the sentence was reasonable

. Perez makes no claim that the district court imposed an unreasonable sentence , but even if he did , the claim would fail because the district court appropriately considered the § 3553(a) factors

. Granting Perez’s objections, his guidelines range should

Case: 19-12724 Date Filed: 03/19/2020 Page: 5 of 86 have been twenty

- four to thirty months. At the sentencing hearing, the district court assessed all the “facts and circumstances” of the case , includi ng that Perez absconded from pretrial supervision and fatally shot Officer Tuder , that his offense involved several instances of breaking into cars to steal firearms so that he could later sell them , and that he had an extensive criminal history. That history consisted of fourteen separate breaking and entering offenses in less than three years

. While the district court considered more than Perez’s criminal history, w e have previously “upheld large upward deviations based solely on an offender’s extensive criminal history.” United States v. Osorio

- Moreno , 814 F.3d 1282, 1288 (11th Cir. 2016) ( sentence exceeding guidelines maxim um by fifty

- seven months not substantively unreasonable because of defendant’s twenty prior convictions) ; United States v

. Shaw , 560 F.3d 1230, 1239 (11th Cir. 2009) (sentence exceeding guidelines maximum by eighty

- three months not substantively unreasonable primarily because of

“ twenty

- six known episodes of criminal behavior ”). Given Perez’s extensive criminal history and the number of other serious considerations examined at the sentencing hearing , the district court did not abuse its discretion by imposing a sentence twenty

- one months greater than Perez’s claimed guidelines m aximum.
Notice
We turn then to Perez’s argument that the district court could not impose an upward departure from what the guidelines range should have been (according to

Case: 19-12724 Date Filed: 03/19/2020 Page: 6 of 87 him) without notice. The Federal Rules of Criminal Procedure require the court to provide notice to the parties if it contemplates a “departure” from the applicable guidelines sentencing range. Fed. R. Crim. P. 32(h). “‘De parture ’ is a term of art under the Guidelines and refers only to non

- Guidelines sentences imposed under the framework set out in the Guideline s. ” I r izarry v. United States , 553 U.S. 708, 714 (2008). The notice requirement therefore applies only w h en the district court imposes a departure authorized by 18 U.S.C. § 3553 (b)

. Id. It does not apply to “ variances from Guidelines ranges that a district court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) .” Id. at 715 ; see also United States v. Plasencia , 886 F.3d 1336, 1344

– 45 (11th Cir. 2018) ( “[N] otice, although necessary for a court to issue an upward depart ure, is not necessary for a court to issue an upward variance

. ” (footnote omitted))

. In other words, if the district court contemplates adjusting a guidelines sentence based on the factors identified by § 3553(b) (a “departure”) , i t must provide the parties notice. If the district court modifies a sentence using the factors in § 3553 (a) (a variance) , it need not provide notice to the parties. Here, the district court did not impose a “departure.” Even assuming that Perez was correct and the guidelines range should have been much lower , the district
court used its sentencing authority under § 3553(a) to apply an upward variance fitting the facts and circumstances of Perez’s case , rather than a depar ture from the

Case: 19-12724 Date Filed: 03/19/2020 Page: 7 of 88 guidelines under § 3553 (b). Therefore, it committed no error in not providing notice
to Perez. CONCLUSION
Because any error in calculating Perez’s guidelines range was harmless, his sentence was reasonable, and the district court did not i mpose a sentencing departure requiring not ice , we affirm. AFFIRMED

. Case: 19-12724 Date Filed: 03/19/2020 Page: 8 of 8