FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 22, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17072

Non-Argument Calendar

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D. C. Docket No. 08-60183-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELANIE PRENDERGAST,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 22, 2009)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

Melanie Renee Prendergast appeals her 60-month sentence imposed for
making a false statement in an application for a passport and falsely representing

that a Social Security number was assigned to her, in violation of 18 U.S.C. § 1542

and 42 U.S.C. § 408(a)(7)(B). Prendergast argues that the sentence was a

departure from the Sentencing Guidelines, not a variance, based on the district

court referring to it as such and holding a hearing regarding a departure. She

contends that the district court relied on inappropriate or irrelevant factors when

deciding to increase her sentence to an unreasonable degree.

The reasonableness of a sentence is reviewed for abuse of discretion. Gall v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007). The party challenging

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

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

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

A major departure or variance from the Guidelines requires more

justification than a minor one. Gall, 552 U.S. at __, 128 S. Ct. at 597. We will

only overturn a sentence “if we are left with the definite and firm conviction 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. McBride, 511 F.3d 1293, 1297-

98 (11th Cir. 2007) (per curiam) (internal quotation marks and citation omitted).

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In United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006) (per

curiam), aff’d Irizarry v. United States, 128 S. Ct. 2198 (2008), we held that when

a district court utilized a properly calculated Guidelines range and then considered

the adequacy of that range in light of the § 3553(a) sentencing factors, it

constituted a variance analysis and not a departure. See also United States v.

Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006) (per curiam) (holding that a

sentence constituted a variance and not a departure where the district court did not

cite to a specific guidelines departure provision and stated that the guidelines “did

not adequately take into account the severity of the damage done by [the

defendant]”). Here, the district court utilized a properly calculated Guidelines

range and subsequently varied upward. Thus, regardless of the terminology

employed by the district court, we construe the district court’s sentence as a

variance from the Guidelines range.

In order to vary from the properly calculated Guidelines range, district

courts must consider the factors set out in 18 U.S.C. § 3553(a). Those factors

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

characteristics of the defendant; (2) the need for the sentence imposed to reflect the

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

punishment for the offense, to afford adequate deterrence to criminal conduct, to

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protect the public from further crimes of the defendant, and to provide the

defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner; (3) the kinds of sentences

available; (4) the kinds of sentence and the sentencing range established for the

applicable category of offense committed by the applicable category of defendant

as set forth in the Guidelines; (5) any pertinent policy statement; (6) the need to

avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct; and (7) the need to provide restitution to

any victims of the offense. 18 U.S.C. § 3553(a).

The district court did not abuse its discretion in imposing a sentence above

the Guidelines range because it properly considered the § 3553(a) factors. The

district court noted that Prendergast did not just use her stolen identity to obtain

work, but also accrued thousands of dollars in unpaid fees, charges, and taxes. The

victim suffered damages beyond monetary loss, undergoing emotional anguish and

expending considerable time to repair the damage to her credit rating. Among

other consequences, Prendergast’s abuse of the victim’s financial identity resulted

in the victim being denied a home loan, which in turn negatively affected both the

victim’s husband and child. The district court further found that a higher sentence

was necessary to deter not only potential, future identity thieves, but specifically to

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deter Prendergast from committing this type of crime again. The district court

noted that Prendergast had managed to steal the victim’s identity with little effort

and had continued the fraud for six years. Each of these considerations was a

proper consideration under § 3553(a), as these considerations relate to the nature

and circumstances of this offense, the seriousness of this offense, and the need for

deterrence.

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

reversible error. Accordingly, we affirm.

AFFIRMED.

Prendergast further argues that it was inappropriate for the district court to rely on (a) 1

the fact that she committed perjury to receive her fraudulent passport because swearing falsely is

an element of the charged crime and (b) the district court’s concern that there are national

security concerns implicated in receipt of a fraudulent passport because she personally took no

action that concerned national security. We decline to decide the appropriateness of the district

court’s reliance on these factors, in light of the fact that the district court relied on numerous

other factors that are clearly relevant to the § 3553(a) analysis.

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