FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11955

Non-Argument Calendar

________________________

D. C. Docket No. 05-00331-CR-BAE-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOHN SCOTT, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(June 9, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

John Scott appeals his 120-month sentence, imposed after he pled guilty to
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one count of bank fraud in violation of 18 U.S.C. § 1344. Scott raises four issues

on appeal. First, Scott argues that the district court’s sentence of 120 months was

not an upward variance based on factors in 18 U.S.C. § 3553(a), but rather an

upward departure pursuant to U.S.S.G. § 4A1.3. He thus asserts that the court

committed procedural error by failing to consider the appropriateness of the next

criminal history category when it upwardly departed, as required under U.S.S.G.

§ 4A1.3. Second, Scott argues that even if the district court imposed a variance

rather than a departure, the 18 U.S.C. § 3553(a) factors alone cannot support the

extraordinary variance, particularly because many of the bases for the sentence

were already accounted for in the calculated guideline range, thereby making the

120-month sentence unreasonable. Third, Scott contends that the district court

plainly erred by violating his Confrontation Clause rights when it considered the

hearsay evidence in his codefendants' presentence investigation reports (“PSI”),

without providing Scott the opportunity to rebut that information. Finally, Scott

argues that a breakdown in the relationship between his attorney and him resulted

in ineffective assistance of counsel during Scott's sentencing hearing.

I. Section 3553(a) Variance/Section 4A1.3 Departure

We review a district court's factual findings for clear error and its application

of the guidelines to those facts de novo. United States v. Kinard, 472 F.3d 1294,
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1297 n.3 (11th Cir. 2006). In United States v. Irizarry, 458 F.3d 1208, 1211 (11th

Cir. 2006), pet. for cert. granted, 128 S.Ct. 828 (2008), in determining whether a

sentence was imposed as a result of a guidelines departure or a variance pursuant to

§ 3553(a), we considered the process undertaken by the district court in making its

determination. Specifically, we found that the sentence imposed was a variance

due to the following factors: 

The district court correctly calculated the advisory guidelines range.

The court then considered the adequacy of this range in the light of

the sentencing factors listed in 18 U.S.C. section 3553(a) and the

evidence presented at the sentencing hearing. After concluding that

the guidelines range did not adequately address the future risk

Defendant posed to the public, the court exercised its post-Booker

discretion to impose a reasonable sentence outside the sentencing

guidelines range.

Id. at 1211-1212 (internal citations omitted) (holding that notice required for

upward departure was not required in this case because the sentence was an upward

variance, which requires no notice). 

Section 4A1.3 of the guidelines allows a sentencing court to upwardly depart

when it believes 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). When departing upward under § 4A1.3, “the court must look first to

the next criminal history category. If that category adequately reflects the
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defendant's past conduct, then the court must state its findings and sentence the

defendant within the range for the new category.” United States v. Williams, 989

F.2d 1137, 1142 (11th Cir. 1993) (internal citations omitted). If the court finds that

this new category is still inadequate to reflect the defendant's criminal history, “the

court must look to the next highest category and repeat its inquiry.” Id.

To determine a reasonable sentence or impose a variance from a defendant's

guideline range, the district court must consider the 18 U.S.C. § 3553(a) factors,

including the history and characteristics of the defendant, the need to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense, and the need to protect the public. See 18 U.S.C. §

3553(a). 

Because the district court explicitly stated that it was conducting a variance

pursuant to 18 U.S.C. § 3553(a) and enumerated several of the § 3553(a) factors in

arriving at its sentence, the court committed no procedural error because it was not

required to consider intervening criminal history categories as it would were it

conducting an upward departure under 28 U.S.S.G. § 4A1.3.

II. Reasonableness

We review a final sentence for reasonableness. United States v. Talley, 431

F.3d 784, 785 (11th Cir. 2005). In conducting this review, we apply a deferential
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abuse-of-discretion standard. Gall v. United States, 552 U.S. ___, 128 S.Ct. 586,

591, 597, 169 L.Ed.2d 445 (2007). We first review whether the district court

committed a procedural error, such as incorrectly calculating the guidelines,

treating the guidelines as mandatory, failing to consider the § 3553(a) factors,

imposing a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence. Id. at ___, 128 S.Ct. at 597. If there were no such

procedural errors, we “then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Id.; see also United States v.

Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006) (identifying distinct inquiries into

procedural and substantive aspects of a sentence). This review involves inquiring

whether the § 3553(a) factors supported the sentence and justified any deviation

from the defendant’s sentencing range. Gall, 552 U.S. at ___, 128 S.Ct. at 600. 

The factors presented in § 3553(a) include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need to

protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of

sentences available; (7) the Sentencing Guidelines range; (8) pertinent

policy statements of the Sentencing Commission; (9) the need to

avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

Talley, 431 F.3d at 786; see 18 U.S.C. § 3553(a). “The weight to be accorded any
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given § 3553(a) factor is a matter committed to the sound discretion of the district

court[,]” and we will not “substitute our judgment in weighing the relevant factors

because our review is not de novo.” United States v. Williams, 456 F.3d 1353,

1363 (11th Cir. 2006) (internal citations and quotations omitted), abrogated on

other grounds by Kimbrough v. United States, 552 U.S. ___, 128 S.Ct. 558, 169

L.Ed.2d 481 (2007). 

In its recent Gall decision, the Supreme Court stated,

In reviewing the reasonableness of a sentence outside the Guidelines

range, appellate courts may . . . take the degree of variance into

account and consider the extent of a deviation from the Guidelines.

We reject, however, an appellate rule that requires ‘extraordinary’

circumstances to justify a sentence outside the Guidelines range. We

also reject the use of a rigid mathematical formula that uses the

percentage of a departure as the standard for determining the strength

of the justifications required for a specific sentence.

Gall, 552 U.S. __, 128 S.Ct. at 594-95. When a sentencing judge determines that a

non-guideline sentence is warranted, “he must consider the extent of the deviation

and ensure that the justification is sufficiently compelling to support the degree of

the variance.” Id. at __, 128 S.Ct. at 597. However, “a major departure should be

supported by a more significant justification than a minor one.” Id. In reviewing

the sentence for reasonableness, an appellate court “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance. The fact that the
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appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Id. A defendant

challenging his sentence bears the burden of establishing that it is unreasonable. 

Talley, 431 F.3d at 788. 

The district court adequately considered the § 3553(a) factors, basing its

decision, in part, on Scott’s substantial criminal history, including previous fraudrelated convictions for which Scott received no criminal history points, and which

were therefore not accounted for in his advisory guideline range. The court also

considered Scott’s ongoing criminal conduct, a factor that was also not accounted

for in Scott’s advisory guideline range. The court’s decision to sentence Scott to

120 months was therefore reasonable, because that decision was based upon the

need to reflect the seriousness of Scott’s offense, as well as to provide just

punishment and to protect the public from Scott’s further fraudulent crimes.

III. Opportunity to Rebut Hearsay Evidence

In United States v. Castellanos, 904 F.2d 1490 (11th Cir. 1990), we held

that, “[a] court may consider any information (including hearsay), regardless of its

admissibility at trial, in determining whether factors exist that would enhance a

defendant’s sentence, provided that the information is sufficiently reliable.” 

Castellanos, 904 F.2d at 1495. “The district court may rely on such evidence ‘as
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long as the evidence has sufficient indicia of reliability, the court makes explicit

findings of fact as to credibility, and the defendant has an opportunity to rebut the

evidence.’” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001)

(internal citations omitted).

When a defendant raises a sentencing argument for the first time on appeal,

we review for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th

Cir. 2000). Under plain error review, there must be (1) an error, (2) that is plain,

and (3) that affects substantial rights. United States v. Shelton, 400 F.3d 1325,

1328-29 (11th Cir. 2005). If these three prongs are met, we may exercise our

discretion to notice the error if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. at 1329. “An error is plain it if is obvious

and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th

Cir. 2006). For an error to affect substantial rights, “in most cases it means that the

error must have been prejudicial: It must have affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770,

1778, 123 L.Ed.2d 508 (1993). The party seeking to establish plain error has the

burden of persuasion as to prejudice. See United States v. Rodriguez, 398 F.3d

1291, 1299 (11th Cir. 2005).
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Scott has not met his burden of persuasion as to demonstrating that any plain

error was prejudicial; that is, that it affected the outcome of the district court

proceedings. There is no constitutional right to confrontation during sentencing,

and the district court’s consideration of the PSIs did not affect the outcome of

Scott’s sentence.

IV. Ineffective Assistance

Ineffective assistance of counsel claims are generally not considered for the

first time on appeal, except in cases where the record is sufficiently developed. 

United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005) (addressing

defendant’s ineffective assistance of counsel claim because record was sufficiently

developed). An appellate court generally cannot adequately decide an ineffective

assistance of counsel claim raised for the first time on direct appeal because the

focus at trial was not whether defense counsel’s actions were prejudicial or

supported by reasonable strategy. Massaro v. United States, 538 U.S. 500, 504-05,

123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). The preferable means for deciding

a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion,

“even if the record contains some indication of deficiencies in counsel’s

performance.” Id. 
 Scott’s request for oral argument is denied. 1

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There could be a number of reasons why Johnson made the decisions he did

in representing Scott, and the record here is insufficient to establish whether

Johnson was truly ineffective or used sound strategy during the sentencing phase

of his representation. Moreover, Scott argues that the record as a whole should be

considered. However, Scott’s claim is expressly limited to the sentencing phase,

and it is unclear what effect the record as a whole would have on an analysis of

counsel’s performance at sentencing, without further development of the record.

Thus, we decline to consider these claims on direct appeal, without prejudice to

Scott’s ability to raise them later in a § 2255 motion.

Upon consideration of the record and the parties’ briefs, we discern no

reversible error.

AFFIRMED.1