FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 17, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11188

Non-Argument Calendar

________________________

D. C. Docket No. 07-60263-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONOVAN WAYNE TUCKER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 17, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Donovan Tucker (“Tucker”) appeals his sixty-month sentence following his
guilty plea for unlawfully re-entering the United States in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Tucker argues that the district court imposed a substantively

unreasonable upward variance from his guidelines range because the court

incorrectly considered, in part, his past Canadian convictions as well his history of

providing false identification to United States authorities. We disagree and find

that the district court correctly considered Tucker’s character, background, and

conduct in light of the 18 U.S.C. § 3553(a) factors and did not abuse its discretion

in imposing a sixty-month sentence. Accordingly, we AFFIRM.

I. BACKGROUND

A federal grand jury indicted Tucker, a Jamaican citizen, for unlawfully reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). R1-8.

Tucker pled guilty to the offense without the benefit of a written plea agreement.

R2 at 30. At the time of his arrest, Tucker initially identified himself to

investigators as Jason Camberg and only admitted to being Donald Tucker when

his fingerprints were taken. R2 at 24-25. Upon a search incident to arrest,

government officials discovered that Tucker had a fraudulent driver’s license and

birth certificate, both issued under the alias of Jason Camberg. R4 at 21.

During the sentencing proceedings, the district court noted Tucker’s

extensive criminal history. Most of his offenses consisted of Canadian convictions

2
that had occurred over ten years in the past and pending charges in the United

States. The court recited several of Tucker’s Canadian convictions, including: 1)

assault causing bodily harm; 2) extortion; 3) living on the avails of prostitution; 4)

assault; 5) prison breach; 6) theft under $1000; 7) possession of stolen property; 8)

burglary; 9) aiding, abetting, or compelling a person to engage in prostitution; 10)

failure to appear; 11) possession of narcotics; 12) aggravated assault; 13)

obstructing a peace officer; 14) uttering threats; 15) possession of property

obtained by crime; and 16) possession of a controlled substance. Id. at 9-13. All

but three of these offenses occurred on or before 1 January 1997.

The district court also took note of Tucker’s penchant for getting arrested,

posting bail, and then evading justice by absconding to a different jurisdiction and

using various aliases as cover. Id. at 31. The court specifically cited eight

instances in which Tucker had done so, dating back to August 1988. Id. In the

end, however, the district court did not score Tucker’s Canadian convictions for

purposes of calculating his criminal history category because they were foreign

convictions and because most of them had occurred over ten years before

sentencing. As a result, the court assigned Tucker a criminal history category of I

and a total offense level of 13, yielding a guidelines imprisonment range of twelve

to eighteen months. Id. at 6; see also U.S.S.G. Ch.5 Pt.A. (2007). The statutory

3
maximum sentence for Tucker’s offense was twenty years of imprisonment. See 8

U.S.C. § 1326(b)(2). 

The government filed a motion for upward departure before the sentencing

hearing and asserted that such a departure was warranted pursuant to U.S.S.G.

§ 4A1.3 because Tucker’s criminal history category substantially underrepresented the seriousness of his criminal history or the likelihood that he would

commit other crimes. R1-24 at 2; see also U.S.S.G. § 4A1.3(a)(1). The

government reiterated its request once the hearing was underway and Tucker

opposed it. R4 at 17-18, 23. The district court ultimately imposed an upward

variance, implicitly declining to impose an upward departure under U.S.S.G.

§ 4A1.3. Id. at 29-32, 34.

In imposing the upward variance, the court reasoned that careful

consideration of the § 3553(a) factors counseled against sentencing Tucker

according to the guidelines range of twelve to eighteen months. Id. at 29-30.

According to the court, such a sentence would not: 1) reflect the seriousness of the

offense, promote respect for the law, or provide just punishment; 2) afford

adequate deterrence to criminal conduct; or 3) protect the public from further

crimes by Tucker. Id. The court noted that if it were to score Tucker’s foreign

and stale convictions, Tucker would have a criminal history category of VI, which,

4
when considered with his total offense level of 13, would yield a guidelines range

of thirty-three to forty-one months. Id. at 30. The court then reasoned that

although Tucker’s unscored convictions alone would not justify a sentence above

forty months, Tucker’s long history of using false identities in order to evade

prosecution justified a further upward variance. Id. at 30-31. The court balanced

Tucker’s criminal history against his acceptance of responsibility and determined

that sixty months was a “reasonable and sufficient sentence.” Id. at 32.

II. DISCUSSION

We review a sentence imposed by a district court, both as to its procedural

propriety and substantive reasonableness, under an abuse of discretion standard.

See United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). In Gall v. United

States, 552 U.S. __, __, 128 S. Ct. 586, 597 (2007) (citation omitted), the Supreme

Court clearly staked out the boundaries of our review:

Regardless of whether the sentence imposed is inside or outside

the Guidelines range, the appellate court must review the sentence

under an abuse-of-discretion standard. . . . Assuming that the district

court’s sentencing decision is procedurally sound, the appellate court

should then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard. When conducting this

review, the court will, of course, take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range. . . . [I]f the sentence is outside the Guidelines range,

the court may not apply a presumption of unreasonableness. It 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,

5
justify the extent of the variance.

With respect to sentences imposed outside the applicable guidelines range, the

district court must “ensure that the justification is sufficiently compelling to

support the degree of the variance.” Id. at __, 128 S. Ct. at 597. “[A] major

departure should be supported by a more significant justification than a minor

one.” Id. We also note the well-established rule that “the party who challenges the

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

light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

Regarding the factors that may be considered in fashioning a reasonable

sentence, 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the

information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.

We have addressed § 3661’s applicability in sentencing determinations before and

have held that “courts may . . . consider relevant facts concerning a defendant’s

background, character, and conduct when making sentencing calculations.” United

States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (quotation marks omitted).

Moreover, in the past, our review of a district court’s sentencing decision has

6
included consideration of whether a given sentence is significantly lower than the

statutory maximum as a indicator of reasonableness. See United States v. Valnor,

451 F.3d 744, 751-52 (11th Cir. 2006).

In this case, we conclude that the sentence imposed by the district court

“achieve[s] the purposes of sentencing as stated in section 3553(a).” Talley, 431

F.3d at 788. The court articulated, in considerable detail, the factors it considered

in its decisionmaking calculus and we are convinced that the court met its

obligation to appropriately apply and weigh each of the § 3553(a) factors. The

district court highlighted its well-placed concern with both Tucker’s long history of

criminal misconduct in Canada and his equally alarming talent for avoiding

prosecution in the United States. The court concluded that a significant upward

variance from Tucker’s guidelines range was necessary in order to reflect the

seriousness of the offense, promote respect for the law, provide just punishment,

deter criminal conduct, and to protect the public. See R4 at 29-30. Moreover, we

1

note that Tucker’s sixty-month sentence is appreciably below the statutory

maximum sentence of twenty years of imprisonment.

 Tucker’s argument that the district court impermissibly relied on his foreign convictions 1

and pending charges in fashioning his sentence is misplaced given that the court applied an

upward variance pursuant to the § 3553(a) factors and not an upward departure in accordance

with U.S.S.G. § 4A1.3. See generally United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th

Cir. 2006) (per curiam) (describing district court’s exercise of its discretion in imposing a

reasonable sentence outside the guidelines range as a variance, not a guidelines departure).

7
III. CONCLUSION

Tucker appeals his sixty-month sentence for unlawfully reentering the

United States. We find his appeal to be without merit and conclude that the district

court correctly considered Tucker’s character, background, and conduct in light of

the § 3553(a) factors and did not abuse its discretion in imposing a sixty-month

sentence. Accordingly, we AFFIRM.

AFFIRMED.

8