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[DO NOT PUBLISH]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 guidelines must be supported by sufficiently compelling justification. United
States v. Irey, 612 F.3d 1160, 1186 (11th Cir. 2010) (en banc). A major variance
requires a more significant justification for the variance than a minor variance. Id.
An upward variance is imposed based upon the application of the § 3553(a) factors
to an individual case. United States v. Overstreet, 713 F.3d 627, 637-38 (11th Cir.
2013).
3 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 4 of 7
A sentence is unreasonable if it is based entirely on an impermissible factor
because it does not achieve the purposes of § 3553(a). Plate, 839 F.3d at 957. In
Plate, we vacated a sentence where the record showed that the district court gave
dispositive weight to the impermissible factor of the defendant’s inability to pay
restitution in deciding to impose an imprisonment sentence. Id. at 957-58.
Likewise, we vacated a defendant’s sentence where the record showed that the
district court imposed a sentence based on unfounded assumptions about the
defendant’s immigration status and the judge’s personal views of immigration
policy. United States v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th Cir.
2008).
Here, the district court’s upward variance from the guideline range was not
substantively unreasonable because even though the government did not request an
upward variance, it was within the discretion of the district court to make an
individualized determination of the appropriate sentence considering the specific
facts of Fernandez’s case weighed against the § 3553(a) factors and the guideline
range. Plate, 839 F.3d at 957. Although Fernandez argues that a variance was not
warranted because he pled guilty, had no criminal history, and took responsibility
for his actions, the court had discretion in how to weigh the relevant factors and
adequately justified its decision to vary upwards based upon the seriousness of the
4 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 5 of 7
offense and the history and characteristics of Fernandez. Gall, 552 U.S. at 51;
Irey, 612 F.3d at 1186.
Next, the district court did not consider an impermissible factor when it
noted its opinion that the guideline range for white-collar crimes was often too low
compared to the ranges for drug dealers. In context, this opinion by the court did
not play a role in its decision to vary upwards in Fernandez’s sentence. In fact, the
court emphasized that despite its opinion that the guideline ranges for white-collar
crimes are too low, it “rarely, rarely impose[s] a sentence above the high end of the
guidelines,” even in some cases that involved more money than here. The court
then expressed that the harm Fernandez caused to all his victims and other
investors was so severe that this rare circumstance warranted an upward variance
from the guidelines. The court explained that it considered the arguments of the
parties, the guideline range, the testimony of the witnesses at sentencing, and the
parties’ briefs to arrive at a sentence for Fernandez. At no point did the court claim
to base Fernandez’s sentence upon its opinion on the comparative severity of
punishment for white-collar crimes with other offenses. Thus, even if it were
improper for the court to reference this factor, there is no indication in the record
that this factor played any role in its sentencing of Fernandez.
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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 guidelines must be supported by sufficiently compelling justification. United
States v. Irey, 612 F.3d 1160, 1186 (11th Cir. 2010) (en banc). A major variance
requires a more significant justification for the variance than a minor variance. Id.
An upward variance is imposed based upon the application of the § 3553(a) factors
to an individual case. United States v. Overstreet, 713 F.3d 627, 637-38 (11th Cir.
2013).
3 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 4 of 7
A sentence is unreasonable if it is based entirely on an impermissible factor
because it does not achieve the purposes of § 3553(a). Plate, 839 F.3d at 957. In
Plate, we vacated a sentence where the record showed that the district court gave
dispositive weight to the impermissible factor of the defendant’s inability to pay
restitution in deciding to impose an imprisonment sentence. Id. at 957-58.
Likewise, we vacated a defendant’s sentence where the record showed that the
district court imposed a sentence based on unfounded assumptions about the
defendant’s immigration status and the judge’s personal views of immigration
policy. United States v. Velasquez Velasquez, 524 F.3d 1248, 1253 (11th Cir.
2008).
Here, the district court’s upward variance from the guideline range was not
substantively unreasonable because even though the government did not request an
upward variance, it was within the discretion of the district court to make an
individualized determination of the appropriate sentence considering the specific
facts of Fernandez’s case weighed against the § 3553(a) factors and the guideline
range. Plate, 839 F.3d at 957. Although Fernandez argues that a variance was not
warranted because he pled guilty, had no criminal history, and took responsibility
for his actions, the court had discretion in how to weigh the relevant factors and
adequately justified its decision to vary upwards based upon the seriousness of the
4 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 5 of 7
offense and the history and characteristics of Fernandez. Gall, 552 U.S. at 51;
Irey, 612 F.3d at 1186.
Next, the district court did not consider an impermissible factor when it
noted its opinion that the guideline range for white-collar crimes was often too low
compared to the ranges for drug dealers. In context, this opinion by the court did
not play a role in its decision to vary upwards in Fernandez’s sentence. In fact, the
court emphasized that despite its opinion that the guideline ranges for white-collar
crimes are too low, it “rarely, rarely impose[s] a sentence above the high end of the
guidelines,” even in some cases that involved more money than here. The court
then expressed that the harm Fernandez caused to all his victims and other
investors was so severe that this rare circumstance warranted an upward variance
from the guidelines. The court explained that it considered the arguments of the
parties, the guideline range, the testimony of the witnesses at sentencing, and the
parties’ briefs to arrive at a sentence for Fernandez. At no point did the court claim
to base Fernandez’s sentence upon its opinion on the comparative severity of
punishment for white-collar crimes with other offenses. Thus, even if it were
improper for the court to reference this factor, there is no indication in the record
that this factor played any role in its sentencing of Fernandez.
Finally, the district court did not consider an impermissible factor when it
allowed four unplanned witnesses to testify at his sentencing hearing that were not
5 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 6 of 7
confirmed “victims” pursuant to the FBI’s investigation. Notably, the parties
pointed out to the court that these witnesses were investors in Fernandez’s scheme
but were not confirmed to have suffered losses to be considered “victims.” And
Fernandez did not object to these witnesses testifying. In any event, these
unplanned witnesses gave testimony that was similar to the testimony from the
confirmed victims. They explained the mental, emotional, and financial trauma
they faced because of Fernandez’s crimes. They also made it clear that
Fernandez’s crimes were farther reaching than the initial FBI investigation could
prove since many investors paid Fernandez in cash, which was not traceable
through bank records, or they were the “lucky” investors who were roped into
Fernandez’s fraudulent scheme early enough to actually recover money back from
Fernandez as he perpetuated the fraud over the 23 months. Also, the record does
not reflect that the court specifically considered or gave weight to the testimony of
these unplanned witnesses while determining the sentence imposed upon
Fernandez. While the court gave weight to the nature and circumstances of the
offense in deciding to vary upward, the facts were undisputed, and several
confirmed victims had already testified as to the hardship that Fernandez’s offense
conduct caused them. There is no indication in the record that the cumulative
testimony of the unconfirmed victims had any impact on Fernandez’s sentence.
6 USCA11 Case: 20-10333 Date Filed: 09/27/2021 Page: 7 of 7
In conclusion, the court did not abuse its discretion by imposing a sentence
with an upward variance from the guideline range.
AFFIRMED.