Case: 14-10094   Date Filed: 08/15/2014   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10094
                         Non-Argument Calendar
                       ________________________

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



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

TERRY EUGENE BRICKER,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (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, 

, 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, 

, 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 

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, 

, 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, 

, 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

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 

(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, 

, 1190 (11th Cir. 2010) (en banc) (quotation omitted);

see also United States v. Early, 

, 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, 

, 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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