USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-12418 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SELMA OLIVER-SMITH,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:22-cr-00054-TES-CHW-1 ____________________ USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 2 of 6

2 Opinion of the Court 23-12418

Before NEWSOM, BRASHER, and ABUDU, Circuit Judges. PER CURIAM: Selma Oliver-Smith appeals his 84-month sentence for one count of being a felon in possession of a firearm on the grounds that the district court procedurally erred and the sentence is sub- stantively unreasonable. After careful consideration, we AFFIRM the district court’s sentence. I We generally review the reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing the reasonableness of a sentence, we first consider whether the district court committed a procedural error. Id. A dis- trict court procedurally errs if, among other things, its sentence is based on clearly erroneous facts. United States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011). “For a finding to be clearly erro- neous, this Court must be left with a definite and firm conviction that a mistake has been committed.” United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021) (citation and quotation marks omitted). The district court must also treat the Guidelines as advisory, con- sider the 18 U.S.C. § 3553(a) factors, and adequately explain the chosen sentence. Gall, 552 U.S. at 51. USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 3 of 6

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Here, the district court did not commit procedural error— plain or otherwise—because it committed no error at all. 1 Oliver- Smith argued that his sentence was based on a clearly erroneous finding of fact because the district court stated that “in all this time that you’ve been under sentence, you never served longer than three years.” This statement, Oliver-Smith argued, was inaccurate because his presentence investigation report showed that the terms of imprisonment he had received added up to more than three years. We disagree. Read in context, the district court correctly found that Oliver-Smith had never served a period of imprison- ment longer than three years. See United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003) (analyzing nature of the overall colloquy for context). And Oliver-Smith’s undisputed criminal history shows as much. His argument to the contrary is based entirely on a misinterpretation of the district court’s reasoning. Therefore, we affirm as to this issue. II After reviewing for procedural error, we consider the sub- stantive reasonableness of a sentence under a deferential abuse-of- discretion standard. Gall, 552 U.S. at 51. The district court abuses its discretion if it: “(1) fails to afford consideration to relevant [§

1 The parties dispute whether Oliver-Smith properly preserved this issue, and

therefore whether we review this argument for plain error or clear error. Be- cause this issue fails under either standard of review, we need not resolve whether Oliver-Smith preserved it. USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 4 of 6

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3553(a)] factors that were due significant weight; (2) gives signifi- cant weight to an improper or irrelevant factor; or (3) commits a clear error of judgment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citation and quotation marks omitted). We will vacate a district court’s sentence as substantively unreasonable “only 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 arriv- ing at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. at 1190 (citation and quotation marks omitted). We “commit[] to the sound discretion of the district court the weight to be afforded to each § 3553(a) factor.” United States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015). The district court does not have to give all the factors equal weight and maintains discre- tion to attach great weight to one factor over another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The district court also has discretion to decide whether the § 3553(a) factors justify a variance and the degree of the variance. See Gall, 552 U.S. at 49–50. A district court’s decision to place “substantial weight” on a defendant’s criminal history is consistent with the § 3553(a) factors because five of the factors relate to criminal history. Rosales- Bruno, 789 F.3d at 1263; see 18 U.S.C. § 3553(a). Even though properly calculated guideline ranges incorporate a defendant’s criminal history, a district court may properly find that the guide- line range does not account for the nature of the prior offenses or USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 5 of 6

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the continuous pattern of criminal behavior. See Rosales-Bruno, 789 F.3d at 1263. A sentence outside of the calculated guideline range is not presumed to be unreasonable, but the extent of the variance is one consideration. Irey, 612 F.3d at 1186–87. One sign of reasonable- ness is that the varied sentence is well below the statutory maxi- mum. United States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021). Here, Oliver-Smith’s 84-month sentence is not substantively unreasonable because the district court acted within its discretion in placing considerable weight on the § 3553(a) factors it specified at sentencing, mostly relating to his criminal history, in imposing its sentence. Rosales-Bruno, 789 F.3d at 1254, 1263–64; Perkins, 787 F.3d at 1342. Oliver-Smith’s argument that the district court over- relied on one factor is unavailing; the court stated that not one, but five of the § 3553(a) factors supported an upward variance based on his undisputed criminal history. Rosales-Bruno, 789 F.3d at 1263; see also 18 U.S.C. § 3553(a). And it was within the court’s discretion to find that Oliver- Smith’s guidelines range of 46–57 months was insufficient to achieve the goals of sentencing—namely, to deter future criminal conduct when Oliver-Smith’s presentence investigation report re- flected that he had a lengthy criminal history of theft crimes and a clear pattern of recidivism despite numerous state court convic- tions accompanied by relatively minor sentences. Perkins, 787 F.3d at 1342; Rosales-Bruno, 789 F.3d at 1263. Additionally, his sentence fell considerably below the statutory maximum noted in his USCA11 Case: 23-12418 Document: 21-1 Date Filed: 03/14/2024 Page: 6 of 6

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presentence investigation report, which is also indicative of its rea- sonableness. Riley, 995 F.3d at 1278. Accordingly, Oliver-Smith’s sentence should be affirmed. AFFIRMED.