USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-10333 Non-Argument Calendar ________________________ D.C. Docket No. 6:19-cr-00008-GAP-GJK-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDRES FERNANDEZ, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 27, 2021) Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 2 of 7 Andres Fernandez appeals the substantive reasonableness of his 120-month prison sentence, an upward variance from the guideline range of 78 to 97 months, for 12 counts of wire fraud. Fernandez argues that the district court should not have imposed an upward variance without the government requesting a variance. He also argues that the district court imposed his sentence based on its opinion that punishments for white-collar crimes are too low compared to other offenses. Finally, Fernandez argues the district court placed substantial weight on the testimony of four witnesses at his sentencing hearing that were not “victims.” We review a sentence for substantive unreasonableness under an abuse-of- discretion standard. United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008); see also Gall v. United States, 552 U.S. 38, 51 (2007) (holding that district courts that impose variances are reviewed under a deferential abuse-of-discretion standard). On appeal, the party challenging the sentence bears the burden of establishing that it is unreasonable based on the record and the factors in 18 U.S.C. § 3553(a). United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). In levying a sentence, the district court must impose a sentence that is sufficient, but not greater than necessary, to conform to the factors in § 3553(a), which include the seriousness of the offense, promotion of respect for the law, punishment for the offense, deterrence of criminal conduct, and protection of the public. United States v. Plate, 839 F.3d 950, 957 (11th Cir. 2016). Similarly, the 2 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 3 of 7 district court must consider “the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to the victim.” Id. District courts have considerable discretion to apply these factors and impose sentences. Id. However, a court may abuse its discretion when it “(1) fails to afford consideration to the relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” Id. (quotation marks and emphasis omitted). We may consider the extent of a variance imposed by a district court, but we give the district court’s decision deference, inferring that the factors under § 3553(a) justify the variance. Gall, 552 U.S. at 51. The degree of variance from the …
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