[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-10094

Non-Argument Calendar

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D.C. Docket No. 4:13-cr-00079-RH-CAS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

TERRY EUGENE BRICKER, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(August 15, 2014)

Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM: 

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Terry Eugene Bricker appeals his 48-month total sentence, imposed after he 

pled guilty to two counts of mail theft, in violation of 18 U.S.C. § 1708; three 

counts of wire fraud, in violation of 18 U.S.C. § 1343; and one count of aggravated 

identity theft, in violation of 18 U.S.C. § 1028A(a)(1), (c). On appeal, Bricker

argues that his above-guidelines sentence is procedurally and substantively 

unreasonable. After review of the record and consideration of the parties’ briefs, 

we affirm Bricker’s sentences but remand to the district court to correct a 

typographical error in the judgment.

I. Procedural Reasonableness

Bricker first contends his sentence is procedurally unreasonable because the 

district court failed to follow the appropriate steps for departing upward pursuant 

to U.S.S.G. § 4A1.3, which authorizes the district court to depart upward “[i]f 

reliable information indicates that the defendant’s criminal history category 

substantially under-represents the seriousness of the defendant’s criminal history or 

the likelihood that the defendant will commit other crimes.” U.S.S.G. 

§ 4A1.3(a)(1). Specifically, the district court did not sequentially consider whether 

the next highest criminal history categories were appropriate. See United States v. 

Valdes, 500 F.3d 1291, 1292 n.1 (11th Cir. 2007) (“If a district court finds that a 

defendant’s criminal history is not adequately represented by the Guidelines range, 

and decides to engage in a departure analysis under U.S.S.G. § 4A1.3, the judge 

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must first explicitly consider the next criminal history category and make a 

determination as to whether that new range is appropriate.” (emphasis in original)). 

Bricker’s arguments are unavailing. The record demonstrates the district 

court’s above-guidelines sentence was the result of a variance pursuant to the 18 

U.S.C. § 3553(a) factors rather than a departure under the Guidelines. See United 

States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009) (“In determining 

whether the district court applied an upward departure under the Guidelines or a 

variance under the 18 U.S.C. § 3553(a) factors, we consider whether the district 

court cited to a specific guideline departure provision and if the court’s rationale 

was based on its determination that the Guidelines were inadequate.”). Although 

the district court marked “4A1.3 Criminal History Inadequacy” under the section 

“Reason(s) for Departure” in its Statement of Reasons, the record demonstrates 

that the above-guidelines sentence was motivated by the court’s conclusion that the 

Guidelines were inadequate and that the § 3553(a) factors weighed in favor of a 

longer sentence. See id. In imposing Bricker’s sentence, the district court 

correctly calculated the guidelines range, cited and discussed the § 3553(a) factors, 

and determined that an above-guidelines sentence was appropriate in light of those

factors. See United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006). In 

addition, in another section of its Statement of Reasons, the district court checked 

six of the § 3553(a) factors as justification for imposing a sentence outside the 

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advisory guidelines range, and expressly stated that Bricker’s sentence was 

appropriate based on all of the statutory factors. Accordingly, we conclude 

Bricker’s above-guidelines sentence was a variance, not a departure, and the 

district court therefore did not err by failing to follow the procedure for departing 

upward under U.S.S.G. § 4A1.3.

II. Substantive Reasonableness

Bricker next contends his sentence is substantively unreasonable because the 

district court abused its discretion in imposing a sentence significantly above the 

advisory guidelines range. Relying on § 4A1.3 and the guidelines commentary, 

Bricker argues the presentence investigation report failed to provide reliable 

information about many of the prior offenses on which the district court relied in 

imposing his sentence, and those offenses did not justify the extent of the district 

court’s deviation from the guidelines range.

Bricker’s reliance on § 4A1.3 and the accompanying commentary is 

misplaced because, as discussed above, the district court did not depart upward

under the Guidelines. The district court, moreover, did not abuse its discretion in 

imposing Bricker’s above-guidelines sentence. See Gall v. United States, 552 U.S. 

38, 41 (2007) (“[C]ourts of appeals must review all sentences—whether inside, just 

outside, or significantly outside the Guidelines range—under a deferential 

abuse-of-discretion standard.”). We agree with the district court’s conclusion that 

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the § 3553(a) factors, on the whole, justified the extent of the variance. See 

id. at 51. The district court discussed Bricker’s history and characteristics, noting 

his history of alcohol abuse as well as his acceptance of responsibility for his 

conduct. See 18 U.S.C. § 3553(a)(1). The court also pointed to Bricker’s 

extensive criminal history and disrespect for the law, as well as the danger Bricker 

posed to the public. See id. § 3553(a)(1), (2). As demonstrated by the presentence 

investigation report, Bricker’s criminal history extended from the time he was 18 

years old and spanned over 25 years, encompassing crimes from theft to reckless 

driving, burglary, possession of stolen mail, and driving under the influence. On 

this record, we cannot say 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.” United 

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation omitted); 

see also United States v. Early, 686 F.3d 1219, 1222-23 (11th Cir. 2012) 

(concluding a defendant’s above-guidelines sentence was substantively reasonable 

in light of the defendant’s extensive criminal history and the § 3553(a) factors). 

Accordingly, we affirm Bricker’s 48-month total sentence.

III. Typographical Error in the Judgment

We note that the district court’s written judgment contains a scrivener’s 

error. See United States v. Reeves, 742 F.3d 487, 507 n.12 (11th Cir. 2014) (“We 

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may sua sponte raise the issue of clerical errors in a judgment and remand with 

instructions that the district court correct them.”). Count Six of the judgment 

indicates Bricker was convicted of aggravated identity theft under 18 U.S.C. 

§§ 1028A(a)(1) and 1028(c). The judgment should be corrected to reflect that 

Bricker was convicted of aggravated identity theft under 18 U.S.C. § 1028A(a)(1) 

and (c).

IV. Conclusion

For the foregoing reasons, we affirm Bricker’s sentences but remand for the 

limited purpose of correcting the scrivener’s error in the judgment.

AFFIRMED and REMANDED.

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