UNITED STATES of America, Plaintiff-Appellee, v. Jesus ROSALES-BRUNO, Defendant-Appellant, 789 F.3d 1249

ED CARNES, Chief Judge: This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(l)(A)(ii). United States v. Rosales-Bruno, 676 F.3d 1017, 1024 (11th Cir.2012) (Rosales-Bruno I).

That error had increased Rosales-Bruno’s advisory sentencing guidelines range to 70 to 87 months, and the district court had sentenced him to 87 months imprisonment. On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term.

That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable. I. On August 4, 2007, Rosales-Bruno attacked his girlfriend, Edith Rodriguez. He shoved her into a stove, and when she tried to leave he punched her in the back and caused her to fall. When she fell he grabbed her by the face and pinned her between two beds. He then took out a cigarette lighter and threatened to burn her with it.

Rosales-Bruno was arrested for that violent conduct. Two months later, in October 2007, while he was out on bond, Rosales-Bruno attacked Rodriguez again. After pulling their 18-month-old daughter out of her arms, he punched Rodriguez at least five times and forced her into his car. She struggled and managed to escape, but Rosales-Bruno chased her down, threatened to kill her, grabbed her by the hair, pulled some of it out, and started choking her with his arm.

When employees at a nearby business heard Rodriguez’s screams for help, Rosales-Bruno released Rodriguez but took the little girl with him when he fled from the scene. In November 2007, an Indian River County, Florida court convicted Rosales-Bruno of assault and battery for the first attack on Rodriguez, sentencing him to fifteen days in jail and a year of probation. While awaiting trial for battering Rodriguez the second time, Rosales-Bruno failed to report to his probation officer, didn’t complete required domestic-violence programs, and didn’t pay probation fees.

As a result, in April 2008, the court issued an arrest warrant for his violation of probation. Possibly because Rosales-Bruno’s trial for charges arising from the second attack was scheduled for later in the month, that arrest warrant was not immediately served. Rosales-Bruno was convicted of battery and false imprisonment for the second attack. The court sentenced him to six months in jail and three years of probation.

A month later, a United States Immigration Judge ordered that Rosales-Bruno, a Mexican national, be removed to Mexico, and he was deported on May 17, 2008. - Sometime in 2010, Rosales-Bruno crossed the border back into the United States in Arizona and then made his way back to Florida. In March 2011, he was arrested for violating probation on the April 2008 warrant. While he was in custody, Immigration and Customs Enforcement agents found that Rosales-Bruno was illegally in the United States after having been deported.

As a result; he was indicted on one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1826, the applicable penalty provision of which carried a statutory maximum sentence of 120 months. See 8 U.S.C. § 1326(b)(1). He pleaded guilty to that charge. At his first sentencing for his illegal reentry conviction, Rosales-Bruno’s pre-sentence investigation report calculated his guidelines range as 70 to 87 months imprisonment.

That range resulted in part from a 16-level enhancement of Rosales-Bruno’s base offense level under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on the PSR’s characterization of his 2008 Florida conviction for false imprisonment as a conviction for a “crime of violence.” Rosales-Bruno objected to that enhancement, contending that a false imprisonment conviction was not categorically a crime of violence within the meaning of that enhancement.

He had also pleaded guilty to battery in connection with the same incident that led to the conviction for false imprisonment but, as we noted in our earlier opinion, battery under Florida law is not categorically a crime of violence either. See Rosales-Bruno I, 676 F.3d at 1024 (citing Johnson v. United States, 559 U.S. 133, 138-44, 130 S.Ct. 1265, 1270-73, 176 L.Ed.2d 1 (2010)). The district court properly did not consider the battery conviction as a crime of violence for purposes of the § 2L1.2(b)(l)(A)(ii) enhancement.

At that first sentence hearing, Rosales-Bruno also objected to the facts alleged in ¶ 30 of the PSR, which were taken from the police report filed in connection with his arrest for the crimes of false imprisonment and battery. He asserted that the police report was hearsay and that it was an inaccurate account of the events leading up to his arrest.

His hearsay objection challenged only the court’s use of the police report’s facts “for the purpose of determining whether the [false imprisonment] conviction [was] a crime of violence.” Although he asserted that the report was not an accurate recitation of events, he conceded that the district court could consider the police réport “for the purpose of the sentencing” except on the issue of whether the § 2L1.2(b)(l)(A)(ii) crime of violence enhancement applied. Specifically, he said: “[I]t depends on what the Court is considering.

The Court could review [the police report] for the purpose of the sentencing, but not for the purpose of determining whether the predicate conviction is a crime of violence.” The district court overruled Rosales-Bruno’s objections and sentenced him to 87 months imprisonment, the top of his guidelines range. He appealed that sentence, challenging the crime of violence enhancement he had received for his false imprisonment conviction. We agreed with Rosales-Bruno’s contention that false imprisonment under Florida law is not categorically a crime of violence. See Rosales-Bruno I, 676 F.3d at 1022.

We also decided that the record did not establish that Rosales-Bruno’s 2008 Florida false imprisonment conviction had been under a statutory alternative that qualifies as a crime of violence for purposes of § 2L1.2(b)(l)(A)(ii). Id. at 1023-24. For that reason, we vacated the sentence and remanded the case to the district court for resentencing without the crime of violence enhancement. Although we directed the court to consider the record and resentence Rosales-Bruno “in light of the 18 U.S.C. § 3553(

a) factors,” we “expressed] no opinion ... as to what sentence would now be appropriate.” Id. at 1024. We did not rule out the court reimposing the same sentence on remand so long as it was not based on treating Rosales-Bruno’s false imprisonment conviction as a crime of violence under § 2L1.2(b)(l)(A)(ii). Before Rosales-Bruno was resentenced, the probation office amended the PSR and recalculated his guidelines range without the 16-level crime of violence enhancement. The result was a range of 21 to 27 months. Even so, the district court imposed the same sentence as before, relying on the § 3553(

a) factors to vary above the new guidelines range by 60 months. The court did so after conducting a full resen-tence hearing, during which it pointed to several factors supporting the upward variance under § 3553: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the present offense, and (5) the need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C). In determining that an 87-month' sentence was appropriate, the district court placed particular emphasis on.

Rosales-Bruno’s criminal history. At the resen-tence hearing, the court read for the record the PSR’s descriptions of several of Rosales-Bruno’s prior convictions. Those descriptions detailed the crimes that led to his 2007 convictions for assault and battery and his 2008 convictions for false imprisonment and battery. Finally, the court read the PSR’s list of Rosales-Bruno’s 11 driving offense convictions, which included several DUI convictions. Rosales-Bruno objected that the sentence was procedurally and substantively unreasonable.

He contended that the court had placed “too much emphasis” on his prior convictions for false imprisonment, for assault, and for battery. This is his appeal of the sentence imposed on remand. ■ II. The district court’s task is to impose a sentence that will adequately (1) “reflect the seriousness of the offense,” (2) “promote respect for the law,” (3) “provide just punishment,” (4) “afford adequate deterrence,” (5) “protect the public from further crimes of the defendant,” and (6) provide the defendant with any needed training and treatment in the most effective manner. 18 U.S.C. § 3553(a)(2).

The task is a holistic endeavor that requires the .district court to consider a variety of factors: (1) the nature and circumstances of the offense, (2) the defendant’s history and characteristics, (3) the kinds of sentences available, (4) the applicable sentencing guidelines range, (5) pertinent policy statements of the Sentencing Commission, (5) the need to provide restitution to any victims, and (6) the need to avoid unwarranted sentencing disparities. Id. § 3553(a).

As the governing statute makes clear, id., and as we have explained in an en banc opinion, the advisory guidelines range is but one of many considerations that a court must take into account in exercising its sentencing discretion. See United States v. Irey, 612 F.3d 1160, 1217 (11th Cir.2010) (en banc). “We have not attempted to specify any particular weight that should be given to the guidelines range,” id., and we have rejected “any across-the-board prescription regarding the appropriate deference to give the Guidelines.” United States v.

Hunt, 459 F.3d 1180, 1184 (11th Cir.2006). “We [have] decided instead that, subject to review for reasonableness, sentencing courts may' determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining

section 3553(

a) factors that the court must also consider in calculating the defendant’s sentence.” Irey, 612 F.3d at 1217 (quotation marks omitted). The Supreme Court has held that variances from the advisory guidelines range can sometimes be based on the sentencing judge’s disagreement with whether a guideline properly reflects the § 3553(

a) factors, a holding which indicates that the guidelines are not overly restrictive. See Kimbrough v. United States, 552 U.S. 85, 105-09, 128 S.Ct. 558, 572-75, 169 L.Ed.2d 481 (2007). To arrive at an appropriate sentence, the district court must consider all of the applicable § 3553(

a) factors. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.2009). That does not mean, however, that it must give all of the § 3553(

a) factors equal weight. Instead, the sentencing court “is permitted to attach ‘great weight’ to one factor over others.” Id. (quoting Gall v. United States, 552 U.S. 38, 57, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007)). The decision about how much weight to assign a particular sentencing factor is “committed to the sound discretion of the district court.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.2008) (quotation marks omitted).

And, importantly, “if the sentence is outside the Guidelines range, the [reviewing] court may not apply a presumption of unreasonableness.” Gall, 552 U.S. at 51, 128 S.Ct. at 597. The abuse of discretion standard is not de novo review; it is, instead, deferential. Because of that, when reviewing for an abuse of discretion we will sometimes “affirm the district court even though we would have gone the other way had it been our call.” Irey, 612 F.3d at 1189 (quotation marks omitted); see also, e.g., Ledford v.

Peeples, 605 F.3d 871, 922 (11th Cir.2010) (explaining that when reviewing for an abuse of discretion “the relevant question is not whether we would have come to the same decision if deciding the issue in the first instance,” but instead “whether the district court’s decision was tenable, or, we might say, ‘in the ballpark’ of permissible outcomes”). The Supreme Court has instructed us that when reviewing an out-of-guidelines sentence for reasonableness, we may: consider the extent of the deviation, but [we] must give due deference to the district court’s decision that the § 3553(

a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall, 552 U.S. at 51,128 S.Ct. at 597. The reason we give district courts so much discretion in making sentencing decisions is that they have great advantages over appellate courts when it comes to sentencing. One reason is that they do it and we don’t. Because the district court conducts sentence hearings, it is in a better position to make sentencing determinations than we are. See id.

As the Supreme Court has explained, “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3558(

a) in the individual case” because he “sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. at 51, 128 S.Ct. at 597 (quotation marks omitted).

Another advantage that district courts enjoy when it comes to sentencing is that they have far greater sentencing experience than appellate judges, many of whom have never sentenced a single defendant for a single crime. (At the time he resen-tenced Rosales-Bruno, the district court judge had twenty years federal sentencing experience.) On a related point, the Supreme Court has pointed out that district courts “see so many more Guidelines cases than appellate courts do.” Id. at 52, 128 S.Ct. at 598 (quotation marks omitted). Appellate courts see only the sentences that are appealed.

District courts also see the ones that are not. Given the great advantages that district courts enjoy when it comes to deciding the proper sentence, it would be strange if we didn’t review the substantive reasonableness of the sentences under a deferential abuse of discretion standard. See id. at 51, 128 S.Ct. at 597. Although the deference we afford district courts in this area is not unlimited, it is substantial. Irey, 612 F.3d at 1191. We cannot — because the Supreme Court has held that we must not — presume that a sentence falling outside the advisory guidelines range is unreasonable.

See Gall, 552 U.S. at 51, 128 S.Ct. at 597. If we did presume an out-of-guidelines-range sentence was unreasonable, the advisory guidelines would not be advisory. That the guidelines are in reality only advisory is made unmistakably clear by the fact that in the most recent year for which data is available more than half — 54%—of the sentences imposed in federal court were outside the guidelines range. If sentencing outside the advisory guidelines range made a sentence .substantively unreasonable, half of the sentences imposed in federal courts would be substantively unreasonable.

In spite of the breadth of discretion they are given, district courts can and sometimes do abuse their discretion by imposing a sentence that is substantively unreasonable. Rita v. United States, 551 U.S. 338, 354, 127 S.Ct. 2456, 2466-67, 168 L.Ed.2d 203 (2007) (“In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable.

Circuit courts exist to correct such mistakes when they occur.”); see also Irey, 612 F.3d at 1165 (“We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment.”).

A district court abuses its considerable discretion and imposes a substantively unreasonable sentence only when it “(1) fails to afford consideration to 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.” Irey, 612 F.3d at 1189 (quotation marks omitted). Because that rarely happens, “it is only the rare sentence that will be substantively unreasonable.” United States v. McQueen, 727 F.3d 1144, 1156 (11th Cir.2013).

The party challenging a sentence has the burden of showing that the sentence is unreasonable in light of the entire record, the § 3553(

a) factors, and the substantial deference afforded sentencing courts. United States v. Langston, 590 F.3d 1226, 1236 (11th Cir.2009). III. The sentence the district court imposed in this case is not substantively unreasonable. The court followed the spirit and the letter of the Supreme Court’s and our precedent and obeyed the applicable statutory provisions when it considered all of the § 3553(

a) factors at sentencing. In addition to weighing the corrected advisory guidelines range, the court also gave weight to several of the other relevant § 3553(

a) factors, including: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the crime, and (5) the need to protect the public. After considering all of the other relevant § 3553(

a) factors, the district court was convinced that they outweighed the corrected advisory guidelines range, which did not adequately capture Rosales-Bruno’s history and characteristics. It was for that reason the district court varied upward from the guidelines range. The variance of 60 months above the advisory guidelines range was a major one. But the Supreme Court has forbidden us from presuming that a sentence outside the guidelines range is unreasonable. Gall, 552 U.S. at 51, 128 S.Ct. at 597. So, too, has it forbidden us from requiring “extraordinary circumstances to justify” such a sentence.

Id. at 47,' 128 S.Ct. at 595 (quotation marks omitted). The district court supported the 60-month variance with significant justifications, including, the facts of Rosales-Bruno’s earlier violent crimes. The sentence the district court imposed was 33 months below the statutory maximum of 120 months, which is a consideration favoring its reasonableness. See 8 U.S.C. § 1326(b)(1); United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (holding that a 50-month sentence for violating 8 U.S.C. § 1326(b)(1) was substantively reasonable in part because the sentence was well below the statutory maximum of 120 months imprisonment). The district court’s decision to vary upward from the corrected advisory guidelines range was within its substantial discretion.

Regardless of whether we would have done the same thing if we had been the sentencer, the sentence was within the outer bounds of the district court’s substantial sentencing discretion — “in the ballpark of permissible outcomes.” Irey, 612 F.3d at 1189 (quotation marks omitted). rv. Neither Rosales-Bruno nor the dissent has pointed to any. precedent establishing that an 87-month sentence imposed for a crime like this one on a defendant with a criminal history materially identical to Rosales-Bruno’s is substantively unreasonable.

The cases in which we have held sentences to be substantively unreasonable are materially different from this one. See infra at 1268 (citing the three decisions in which we have vacated upward variance sentences as unreasonable); App’x B (showing the twelve decisions in which we have vacated downward variance sentences as unreasonable). Rosales-Bruno’s position that his sentence is substantively unreasonable is based on three contentions.

First, he contends that the district court gave “significant weight to an improper factor” by resentencing him as though he had a prior crime of violence conviction qualifying him for a § 2L1.2(b)(l)(A)(ii) enhancement despite our holding in Rosales-Bruno I that the enhancement did not apply. Second, he contends that the district court gave unreasonable weight to his criminal history, which he asserts is not extensive enough to support a variance 60 months above the guidelines range.

Third, he contends that the upward variance is unreasonable because his case does not fall outside the heartland of illegal reentry cases. See Irey, 612 F.3d at 1182 (explaining that a case falls “outside the heartland” when “there [is] something unusual, either about the defendant or the circumstances surrounding the crime,” that warrants a sentence outside of the guidelines range). None of those contentions is valid; none of them supports Rosales-Bruno’s position. A.

Rosales-Bruno’s first contention is that the district court gave significant weight to an improper factor by resentencing him as though he still had a prior crime of violence conviction for purposes of U.S.S.G. § 2L1.2(b)(l)(A)(ii). This contention implicitly assumes that the district court had to impose a lower sentence at resentencing because the guidelines range, which is one of the § 3553(

a) factors, had been lowered. The dissent makes that contention explicit, arguing that when the only change between initial sentencing and resentencing is a decrease, in the advisory guidelines range, the district court must decrease the defendant’s sentence. The dissent thinks that is so because, in its view, anything else would demonstrate that the district court gave “no weight at all” to the advisory guidelines. Dissenting Op. at 1278.

In the dissent’s view, the evidence that the district court ignored the advisory guidelines range is so strong that by affirming the district court we are saying that “no evidence ever would be” enough to reverse a district court for failing to give enough weight to the advisory guidelines. Id. at 1278. No it isn’t, and no we aren’t. 1. At resentencing, the district court was required to correct the error involving the § 2L1.2(b) (1) (A) (ii) enhancement, to calculate the guidelines range free of that error, and to consider that corrected range. It did so.

The court was required to consider and weigh the other § 3553(

a) sentencing factors as well. It did so. And the court was required to determine whether, in its judgment, those other sentencing factors outweighed the lower advisory guidelines range. It did so. In the judgment of the experienced district court judge, the other § 3553(

a) factors, especially Rosales-Bruno’s criminal history and record of violence against his girlfriend, outweighed the advisory guidelines range of 21 to 27 months and the proper sentence was 87 months. The dissent’s position is that an advisory guidelines range becomes less advisory and more mandatory if it was not correctly calculated at the initial sentence hearing. See Dissenting Op. at 1278-79. But why?

Why should the fact that it took an appeal and remand to get the advisory guidelines range correct make the corrected advisory guidelines range any less advisory than it would have been if the district court had correctly calculated it to begin with? We remand in cases like this one to correct errors in the steps leading to the district court’s sentencing decision, not to punish the court or the government, or reward the defendant, because an error was committed the first time.

The dissent would hold that if the district court imposed a sentence that was within a higher guidelines range at the initial sentencing, it must impose a sentence within the corrected lower guidelines range on remand. See Dissenting Op. at 1278 (“Nothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at' all.... ”). In other words, the advisory guidelines become mandatory on remand. That is not the law. See United States v.

Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005); Irey, 612 F.3d at 1183; see also Spencer v. United States, 773 F.3d 1132, 1141-42 (11th Cir.2014) (noting the “advisory nature of every provision of the guidelines” and stating that “a district judge cannot treat th[e] guideline[s] as mandatory”). As the Booker decision establishes, the guidelines and their application provide advice about sentencing; they do not control it. See Booker, 543 U.S. at 246, 125 S.Ct. at 757; Irey, 612 F.3d at 1183.

That is why a change in the guidelines range may lead to a change in the sentence but does not require one. The district court must consider the advisory guidelines range in making the sentencing decision, but it is only one of a dozen or so factors that the court must take into account. See Booker, 543 U.S. at 245, 125 S.Ct. at 757; see also 18 U.S.C. § 3553(a). The Supreme Court has been clear that “[t]he Guidelines are not the only consideration....

Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(

a) factors to determine whether they support the sentence requested by a party.” Gall, 552 .U.S. at 49-50,128 S.Ct. at 596. That is exactly what the district court did in resentencing Rosales-Bruno. It correctly recalculated the advisory guidelines range, it gave both parties the opportunity to argue for the sentence they thought appropriate, and it then considered the remaining § 3553(

a) sentencing factors in deciding what the sentence should be. The court exercised its authority to assign heavier weight to several other sentencing factors than it assigned to the guidelines range. Nothing requires a sentencing court to give the advisory guidelines range as much weight as it gives any other § 3553(

a) factor or combination of factors. See Shaw, 560 F.3d at 1237 (noting that a sentencing court “is permitted to attach great weight” to certain factors) (quotation marks omitted); see also Gall, 552 U.S. at 57, 128 S.Ct. at 600; Williams, 526 F.3d at 1322. A sentence’s variance outside the guidelines range, whether upward or downward, represents a district court’s judgment that the combined force of the other § 3553(

a) factors are entitled to greater weight than the guidelines range. Otherwise, there would never be any variances. Yet every year thousands of sentences outside the guidelines are imposed and upheld. See, e.g., U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2015) (showing that in fiscal year 2014 district courts imposed more than 20,000 sentences outside the guidelines range for reasons other than a departure). This is one of them.

The dissent points out that “[njothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at all, let alone such • a significant one.” Dissenting Op. at 1280. No, but the record and result of the initial sentencing show that the district court thought that the appropriate sentence in view of all of the facts and circumstances was 87 months. At the initial sentencing, no variance was necessary to reach that appropriate sentence.

At the resentencing, after reconsidering everything in light of the new guidelines range, the court concluded that an 87-month sentence was still the appropriate sentence in light of all the facts and circumstances, which is why it varied upward to that same sentence. The goal of sentencing is not to change the sentence in lockstep with changes in the advisory guidelines range but to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2) ].” 18 U.S.C. § 3553(a). The district court did that. 2.

The contention that ruling out the § 2L1.2(b)(l)(A)(ii) enhancement required a sentence within the guidelines is wrong for another reason. When it comes to sentencing, particularized facts about the defendant matter.

See Gall, 552 U.S. at 54, 128 S.Ct. at 599 (noting that “the unique facts ” of the defendant’s situation provided support for the district court’s determination that a below guidelines sentence was appropriate) (emphasis added); Kimbrough, 552 U.S. at 111, 128 S.Ct. at 576 (holding that the district court did not abuse its discretion by imposing a below guidelines sentence where it “properly homed in on the particular circumstances of [the defendant’s] case”) (emphasis added); United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir.2008) (noting that we must vacate a sentence and remand for resen-tencing “if we are left with the definite and firm conviction that the district court ... arriv[ed] at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case ”) (emphasis added) (quotation marks omitted); See also Irey, 612 F.3d at 1189-90 (“In reviewing the reasonableness of a sentence, we must, as the Supreme Court has instructed us, consider the totality of the facts and circumstances”) (emphasis added). In assigning weight to the § 3553(

a) factors as part of the weighing process, a court may (and should) consider individualized, particularized, specific facts and not merely the guidelines label that can be put on the facts. The district court did focus on the individualized, particularized, specific facts in resentencing Rosales-Bruno. His argument against the sentence he received does not focus on them. None of the facts about Rosales-Bruno’s illegal reentry conviction or his extensive criminal history changed between the first .and second sentencing.

The only change was that his earlier conviction for false imprisonment could not be categorized as a “crime of violence” conviction for the limited purposes of the U.S.S.G. § 2L1.2(b)(l)(A)(ii) enhancement, see Rosales-Bruno I, 676 F.3d at 1022-24, no matter how violent it actually was, and that change resulted in a lower adjusted offense level and a lower advisory guidelines range. The district court considered the correct range.

But the court also considered the unchanged facts underlying his prior convictions for assault, false imprisonment, two separate battery offenses, and a dozen driving offenses including some DUIs. As Rosales-Bruno conceded at the first sentence hearing, the district court could review the facts underlying his earlier convictions in deciding on the proper sentence for his conviction in this case. Which is what the court did.

We vacated Rosales-Bruno’s original sentence because the government had failed to carry its burden of showing from the state court sentencing documents, instead of from Rosales-Bruno’s actual criminal conduct-itself, that his false imprisonment conviction under Florida law categorically fit within the definition of “crime of violence” required for application of the § 2L1.2(b)(l)(A)(ii) guidelines enhancement. See Rosales-Bruno I, 676 F.3d at 1024 (citing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

This Court never said — and given the plain meaning and common understanding of the word “violence” we would never say — that what Rosales-Bruno actually did to Edith Rodriguez on two separate occasions was not violence and more violence. Rosales-Bruno attacked Edith Rodriguez and shoved her into a stove. When she tried to escape, he grabbed her by the face and pinned her down between two beds and took out his cigarette lighter and threatened to burn her with it. Then while out on bond because of the charges stemming from that violent attack, Rosales-Bruno attacked Rodriguez again.

After pulling their 18-month-old daughter out of her arms he punched Rodriguez at least five times and forced her into his car. She struggled and managed to escape, but Rosales-Bruno chased her down and threatened to kill her and grabbed her hair and pulled some of it out and started choking her with his arm around her neck. Rodriguez was saved because some employees at a nearby business heard her screams, causing Rosales-Bruno to flee, taking the little child with him.

His brutal assaults on Rodriguez were violent crimes as that term is understood in the civilized world, and they may properly be considered as violent crimes for sentencing purposes other than for the application of an advisory guidelines enhancement under § 2L1.2(b)(1)(A). The district court was entitled to look beyond guidelines labels at the actual facts of Rosales-Bruno’s earlier crimes and to find that some of his criminal conduct was violent and deserved substantial weight. See Shaw, 560 F.3d at 1237, 1240-41.

Given the broad sentencing discretion that district courts have, we are not “left with the definite and firm conviction that the district court committed a clear error of judgment,” Irey, 612 F.3d at 1190 (quotation marks omitted), when it did exactly that. Cf. United States v. Herrera-Garduno, 519 F.3d 526, 530 (5th Cir.2008) (rejecting defendant’s argument that the district court’s possible disagreement with how “drug trafficking offenses” were defined under U.S.S.G. § 2L1.2 was an insufficient reason to impose a non-guidelines sentence).

The sentencing statute at least authorizes, and arguably requires, a court to do what the district court did in considering the hard, ugly facts of Rosales-Bruno’s prior convictions. See 18 U.S.C. § 3553(a)(l)-(2) (“The court,.in determining the particular sentence to be imposed, shall consider — (1) ... the history and circumstances of the defendant; [and] (2) the need for the' sentence imposed — ... (

C) to protect the public from further crimes of the defendant....”). B. We also reject Rosales-Bruno’s second contention, which is that in resen-tencing him the district court gave unreasonable weight to his criminal history as a whole. District courts have broad leeway in deciding how much weight to give to prior crimes the defendant has committed. See, eg., United States v. Overstreet, 713 F.3d 627, 638 (11th Cir.2013); United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir.2008) (holding that “it is within the district court’s discretion to decide how much weight to give each § 3553(

a) factor” and that previous offenses “fit[ ] squarely into one of the § 3553(

a) factors, the history and characteristics of the offender”); see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court ... may receive and consider for the purpose of imposing an appropriate sentence.”); United States v. Early, 686 F.3d 1219, 1223 (11th Cir.2012) (“The district court gave great weight to [the defendant’s] three bank robberies within a week, and to his substantial criminal history. This is not a clear error in judgment.”). And Rosales-Bruno’s criminal history is extensive.

We have already described his two violent attacks on the same woman, the second of which occurred while he was out on bond pending trial for charges stemming from the first attack. See supra pp. 1251, 1261. He violated the terms of his probation in multiple ways. In addition, Rosales-Bruno has numerous driving-related convictions. In November 2000 he was convicted of driving without a license. In December 2001 he was convicted of driving under the influence with a blood alcohol level twice the legal limit. In February 2002 he was convicted of driving with a suspended license.

He was again convicted of driving under the influence and driving with a suspended license in July 2003. Another incident led to additional convictions in July 2003 for giving a false name while arrested or detained and driving with a suspended license. In June 2004 he was convicted on three separate counts for driving under the influence, driving with a suspended license, and rer fusing to sign citations for those offenses. Finally, in April 2007 he was convicted of driving without a valid driver’s license after the police stopped him for speeding and observed several open beer containers in his car.

And, of course, the present case arose because he was convicted in 2011 of the felony of illegally reentering the United States after he had been deported following his conviction for a felony. Rosales-Bruno is not someone who has devoted much time or effort to complying with the law. The district court explained in resen-tencing Rosales-Bruno that it believed an 87-month sentence was “appropriate” based on his lengthy criminal history, which the court took into account in weighing several of the § 3553(

a) sentencing factors such as the history and characteristics of the defendant, the need to promote respect for the law, and the need to provide adequate deterrence. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(B). The court also agreed with the government that the § 3553(a)(2)(

C) factor about the need for protection of the public supported an 87-month sentence. As did the § 3553(a)(1) “nature and circumstances of the [illegal reentry] offense” factor, which the court considered. The dissent argues that the district court’s consideration of § 3553(a)(2)(A), which requires a sentence to “reflect the seriousness of the offense ... and to provide just punishment for the offense,” was “clearly unreasonable” because illegal reentry is, in the dissent’s view, a “relatively low-level offense.” Dissenting Op. at 1283.

The dissent is entitled to its opinion, but it is not entitled to substitute its views about the punishment the crime deserves for the views of the district court. As we have pointed out, we are not reviewing the district court’s judgment de novo, but only to determine whether the court abused its considerable discretion. See Irey, 512 F.3d at 1184. In any event, the dissent underestimates the seriousness of Rosales-Bruno’s conviction.

Because Rosales-Bruno committed a felony, and was later deported, and then reentered the United States illegally, he moved.out of what the dissent calls the “relatively low-level” category of 8 U.S.C. § 1326(

a) and into the much more serious category of § 1326(b)(1). See Dissenting Op. at 1283. That escalation resulted in the statutory maximum for his crime of reentry after deportation increasing from two years to ten years. The latest crime for which Rosales-Bruno was convicted, the one for which he was sentenced in this case, is not a “relatively low-level offense.” The court’s decision to give more weight to the other § 3553(

a) factors combined than to the advisory guidelines range alone was not unreasonable. See United States v. Mateos, 623 F.3d 1350, 1368 (11th Cir.2010) (“[I]t is within [the district] court’s discretion to decide how much weight to give each of the § 3553 factors as long as it has not committed a clear error of judgment.”); Shaw, 560 F.3d at 1237 (“The district court ... is permitted to attach great weight to one factor over others.”) (quotation marks omitted); Williams, 526 F.3d at 1323 (noting that it is “within the district court’s discretion to decide how much weight to give each § 3553(

a) factor”). Placing substantial weight on a defendant’s criminal record is entirely consistent with § 3553(

a) because five of the factors it requires a court to consider are related to criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C), (a)(6). Our precedent supports the conclusion that the district court did not abuse its discretion in assigning weight to, and weighing, the § 3553(

a) sentencing factors. Under substantive reasonableness review, we have repeatedly affirmed sentences that included major upward variances from the guidelines for defendants with significant criminal histories that the sentencing courts weighed heavily.

See, e.g., Over-street, 713 F.3d at 634, 636-40 (affirming 420-month sentence where guidelines recommendation was only 180-210 months); Early, 686 F.3d at 1221-22 (affirming 210-moiith sentence where guidelines range was only 78-97 months); Shaw, 560 F.3d at 1238-41 (affirming statutory maximum 120-month sentence where guidelines range was only 30-37 months); see also United States v. Turner, 474 F.3d 1265, 1274, 1280-81 (11th Cir.2007) (affirming 240-month sentence despite guidelines range of only 51-63 months and defendant’s lack of criminal history).

Other circuits have affirmed above guidelines sentences for illegal reentry defendants with criminal histories. See, e.g., United States v. Rivera-Santana, 668 F.3d 95, 98-100, 99 n. 5, 106 (4th Cir.2012) (holding that 240-month sentence for illegal reentry following removal for an aggravated felony conviction was substantively reasonable even though the guidelines range was only 120-150 months, the variance being justified by the defendant’s extensive criminal history); United States v.

Yanez-Rodriguez, 555 F.3d 931, 946-49 (10th Cir.2009) (affirming 144-month sentence for illegal reentry following removal for an aggravated felony conviction substantively reasonable even though the guidelines range was only 41-51 months imprisonment, the upward variance being justified in part by the defendant’s prior conviction for aggravated sexual battery), overruled in part on unrelated grounds by Puckett v. United States, 556 U.S. 129, 133-34, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009). C.

Rosales-Bruno’s final contention is that his sentence was substantively unreasonable because his case fell “squarely within the heartland of illegal reentry cases” and therefore didn’t merit an upward variance. Relying on impressions that his attorney has formed from anecdotal “evidence” alone, Rosales-Bruno posits that many illegal reentry defendants have substantial criminal histories and argues that because his criminal history is only “average” it cannot serve as the basis for an upward variance. Putting aside the legal premise of this contention, its factual premise is false.

According to the Sentencing Commission, 86.9% of illegal reentry offenders in 2013 fell within one of the first four criminal history categories under the sentencing guidelines. Rosales-Bruno does not. He has a criminal history category of V. His category V status sets him apart from most illegal reentry offenders, and not to the good. Only 13.1% of illegal reentry offenders fall into a criminal history category that is comparable to or worse than his. The dissent believes Rosales-Bruno’s offense is a “mine-run case” of illegal reentry not deserving of an upward variance. Dissenting Op. at 1280-82.

In support of that belief, the dissent says that it “suspect[s] that the criminal -history of most convicted-felon, category V criminals is as bad or worse” than Rosales-Bruno’s history. Dissenting Op. at 1281. But it backs up its suspicion only with its similarly unsupported belief that whatever is true of Rosales-Bruno’s criminal history must also be “equally true of other convicted-felon, category V illegal reentrants.” Id. at 1256. “Truly, this is ‘turtles all the way down.’ ” Rapanos v. United States, 547 U.S. 715, 754 & n. 14, 126 S.Ct. 2208, 2233 & n. 14, 165 L.Ed.2d 159 (2006) (plurality op.).

Conjecture is not proof, and tautology is not reasoning. If Rosales-Bruno believes the district court made a clear error of judgment when it sentenced him more harshly than it would have done in a “mine-run case,” it is his burden to prove as much. Langston, 590 F.3d at 1236. Neither he nor the dissent offers any proof. Their unsupported assertions and suspicions do not support a “definite and firm conviction” that the district court erred when it decided that Rosales-Bruno’s criminal history and the other § 3553(

a) factors made an 87-month sentence appropriate. See Irey, 612 F.3d at 1190. The dissent also contends that because the criminal history category assigned to Rosales-Bruno already reflects the fact that he was convicted of earlier crimes, the district court had no reason to vary outside the guidelines range. This is yet another attempt to smuggle into the discussion the dissent’s position that the court should have treated the guidelines range as mandatory.

A correctly calculated advisory guidelines range always reflects a defendant’s criminal history, and yet as we’ve discussed, supra p. 1255, district courts impose sentences outside of the guideline ranges more than half the time, because other, non-guidelines factors outweigh those advisory ranges. Here, the non-guidelines factors that most influenced the district court are those that focus on the violent facts of Rosales-Bruno’s earlier crimes.

Indeed, that our Rosales-Bruno I decision stripped the technical § 2L1.2(b)(l)(A)(ii) “crime of violence” description label from acts that were unquestionably violent crimes suggests that the guidelines range — which the dissent insists should trump everything else — no longer accurately reflects the complete “history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1). The district court had to take into account the actual facts underlying Rosales-Bruno’s convictions in order to fully account for his “history and characteristics” in the sentence it imposed. See id.; cf.

Early, 686 F.3d at 1222 (noting that the district court found that the advisory “guidelines did not adequately account for [the defendant’s] criminal history” because the criminal history score “did not reflect the sustained nature of [the defendant’s] criminal conduct”). Doing so was not error. The dissent would require the district court, before it could vary from the guidelines range, to distinguish Rosales-Bruno’s criminal history from that of “the average category V illegal reentrant with a felony conviction.” See Dissenting Op. at 1283.

To meet those onerous requirements, district courts would have to have a detailed profile of the average offender for each crime, including the average number and nature of his prior crimes, and then it would have to show all of its work in distinguishing the criminal before it from the average one who commits that crime.

Despite what the dissent argues, Dissenting Op. at 1281, district courts are not required to figure out who is the “average” offender for each crime, at each offense level and within each criminal history category, and then explicitly compare the details of the case before it with the details of the average offender’s average case. That degree of explicit comparison far exceeds the level of explanation we require of district courts exercising their sentencing discretion.

See Irey, 612 F.3d at 1195 (“No member of this Court has ever before indicated that a sentencing judge is required to articulate his findings and reasoning with great detail or in any detail for that matter.”); United States v. Sanchez, 586 F.3d 918, 936 (11th Cir.2009) (“In general, the district court is not required to state on the record that it has explicitly considered each of the § 3553(

a) factors or to discuss each of the § 3553(

a) factors.”) (quotation marks omitted); see also Rita, 551 U.S. at 358, 127 S.Ct. at 2469 (noting that the “sentencing judge’s statement of reasons was brief but legally sufficient” after the judge “listened to each argument” and “considered the supporting evidence” but found the “circumstances insufficient to warrant a [lower] sentence”). The dissent’s proposed new averaging requirement is neither feasible nor reasonable.

It places an impossible burden on district courts to have detailed and granular knowledge of the criminal résumé of the “average” offender for each offense’ of conviction at each offense level and in each criminal history category. The sentencing guidelines list nearly 60 categories of offenses, 43 offense levels, and six criminal history categories. See U.S.S.G. Tbl. of Contents; id. Ch. 5 Pt. A, Sentencing Tbl. Under the dissent’s approach, there would be more than 15,000 (60 x 43 x 6 = 15,480) different kinds of “average” criminals. And the dissent wants district courts to go further still.

It would require them to distinguish among individual crimes of conviction and among individual aggravating circumstances, such as the presence or absence of prior felony convictions. See Dissenting Op. at 1280-81. The dissent insists that it doesn’t want a “statistical analysis” and that all it is asking is for “district courts [to] use their common sense and experience” and their “good judgment.” Dissenting Op. at 1283 n. 4. But that is exactly what the district court did in this case.

Drawing on his two decades of experience sentencing criminals, exercising common sense ¿nd good judgment, the district court determined that an 87-month sentence was warranted for this criminal in this case. Its reward for doing exactly what the dissent said it should do is to be second-guessed by the dissent. The dissent argues that “[n]othing in the record suggests that Rosales-Bruno is any worse than other convicted-felon, category V illegal reentrants, let alone so much worse that the high end of his advisory sentencing range should be tripled.” Dissenting Op. at 1282.

But the district court — more familiar with that record, more familiar with the defendant, and far more familiar than we are with “other convicted-felon, category V illegal reen-trants” — exercised common sense, experience, and good judgment when it ruled that an 87-month sentence was appropriate under the facts and circumstances of this case. The extensive nature of Rosales-Bruno’s criminal history and the specific details of his violent criminal conduct made him an outstanding candidate for an upward variance from the advisory guidelines range after a conviction for illegal reentry.

His history of criminal conduct is worse than that of the typical illegal reentry conviction defendant. He falls outside, not inside, the heartland of illegal reentry defendants. See Irey, 612 F.3d at 1182 (explaining that a case is outside the heartland “if there was something unusual, either about the defendant or the circumstances surrounding the crime, that warranted a different sentence”). This is all the more reason why the upward variance sentence is not an abuse of the district court’s substantial sentencing discretion.

See Kimbrough, 552 U.S. at 109, 128 S.Ct. at 574-75 (“[A] district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply.”) (quotation marks omitted). When we remanded the case to the district court for resentencing we did not imply, much less hold, that the district court was forbidden from determining that the appropriate sentence was the same one it had imposed before.

See Rosales-Bruno I, 676 F.3d at 1024 (“We express no opinion, however, as to what sentence would now be appropriate for Rosales-Bruno.”). V.

Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. See Irey, 612 F.3d at 1196 (“What § 3553(

a) requires is a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of that subsection.”) (quotation marks omitted); id. at 1197 (stating that the proper analysis is under “the Goldilocks principle,” which means that “the goal is to lock in a sentence that is not too short and not too long, but just right to serve the purposes of § 3553(a)”) (quotation marks omitted). The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law.

See Dissenting Op. at 1288-89 (positing that some think “we have given the impression that we are more likely to vacate a lenient sentence than a harsh one,” but stating emphatically that “[t]hat is not the law of this circuit”); id. at 1291 (conceding that our en banc decision in “Irey articulated meaningful lower and upper limits on a court’s sentencing discretion,”); id. at 1291 (acknowledging that “Irey articulates the only standard we use to review sentences for substantive reasonableness, and that standard applies regardless of whether a sentence imposed by the district court is challenged as too lenient or too harsh”).

So, we have gotten the law right. The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonably short ones. See Dissenting Op. at 1285, 1289. We are not told whether the accusation is that the Court has done this deliberately or just negligently.

In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.

The table that is Appendix A to this opinion, which is drawn from Sentencing Commission reports and a survey of decisions of this Court, tells the story. It shows that in fiscal years 2006 through 2014, the nine fiscal years since the Booker decision for which data is available, the district courts in this circuit have sentenced 61,866 defendants. They imposed 828 upward variance sentences, which amounts to only 1.34% of all sentences. By contrast, they imposed 9,307 downward variance sentences, which amounts to approximately 15.04% of all sentences.

That means in the post -Booker era, the only period in which variances have been possible, there have been more than eleven times as many downward variance sentences as upward variance sentences. Not only that, but during those nine years the number of downward variance sentences has gone up every year but one, increasing overall from 437 in 2006 to 1,516 in 2014 — a 247% increase in downward variance sentences. The rate at which district courts in our circuit have granted downward variances has more than tripled as well, from 6.59% .in 2006 to-22.52% in 2014.

Upward variances, by contrast, peaked in 2011 at 116 (1.67%).and decreased each of the next three years, falling to 92 (1.37%) by 2014. And in contrast with the 247% increase in downward variance sentences, upward variance sentences have gone up only 39.4% in the post -Booker years. A chart showing the contrasting trends is contained in Appendix C to this opinion.

If, as the dissent insists, the results of our reviews for reasonableness have been sending district courts a message that an upward variance sentence is less likely to get vacated than a downward variance one, it does not appear that the district courts have gotten that message. Or if they have, they simply don’t care. They have indisputably been imposing more downward variance sentences and have done so at an increasing rate. The real reason that district court judges have not responded to the message that the dissent sees hidden in the results of our sentencing review is that there is no such message.

The data in the chart that is Appendix A shows that. The district courts in our circuit have imposed 828 upward variance sentences in the nine years for which we have data since the year the Booker decision was released in 2005. Contrary to the dissent’s claim that “[w]e have not ... expressly set aside a sentence because it was too harsh,” Dissenting Op. at 1292, we have in fact vacated three of those upward variance sentences as unreasonably long. See United States v.

Valdes, 500 F.3d 1291, 1292 (11th Cir.2007) (vacating a 108-month upward variance sentence for bank fraud where the guidelines range was 41 to 51 months); United States v. Lopez, 343 Fed.Appx. 484, 485-86 (11th Cir.2009) (unpublished) (vacating a 60-month upward ■ variance sentence for smuggling unlawful aliens into the country where the guidelines range was 33 to 41 months); United States v.

Gardner, 255 Fed.Appx. 475, 476-77 (11th Cir.2007) (unpublished) (vacating as unreasonable a sentence for misprision of a felony that was 36 months, where the guidelines range was 10 to 16 months, regardless of whether it resulted from an upward departure or upward .variance). This means that we have vacated as unreasonable 0.36% of the upward variance sentences that have been imposed. There have been 9,307 downward variance sentences, and we have vacated 12 of them as unreasonably short. This means that we have vacated as unreasonable only 0.13% (about one-eighth of one percent) of downward variance sentences.

So if we assume, as the dissent’s position does, that district court judges are closely following our sentencing review results, what they will see is that we mean what we say about deferring to their discretion when sentencing. We vacate on substantive reasonableness grounds less than 1% of the sentences that vary upward or downward from the guidelines range. The message we send to the district courts is not, as the dissent suggests, “that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly.” Dissenting Op. at 1287.

It is instead that district courts enjoy substantial discretion in sentencing regardless of whether they sentence above or below the guidelines— exactly what our precedents say. See Mateos, 623 F.3d at 1366; Irey, 612 F.3d at 1188-89; Shaw, 560 F.3d at 1238; Williams, 526 F.3d at 1322; see also Dissenting Op. at 1282 (“District courts clearly enjoy a wide range of sentencing discretion after our decisions in Irey and Pugh... .”). And district courts use their “wide range of sentencing discretion” to sentence below the guidelines range more than eleven times as often as they do to sentence above it.

The numbers also refute the dissent’s argument when we compare the rate at which we vacate upward variance sentences with the rate at which we vacate downward variance ones. We have vacated only one-eighth of one percent (0.13%) of downward variance sentences that district courts have imposed, while we have vacated more than a third of a percent (0.36%) of upward variance sentences. In other words, an upward variance sentence has been more than twice as likely to be found unreasonable as a downward variance sentence — exactly the opposite of what the dissent believes.

The message that we have sent, if any, is not “that we are more likely to vacate a lenient sentence than a harsh one,” Dissenting Op. at 1291, but just the opposite. The dissent does not challenge any of our decisions vacating sentences as unreasonably short, and it is easy to understand why. Appendix B to this opinion is a table listing all of the decisions in which this Court has vacated a downward variance sentence as unreasonably short during the nine years between 2006 and the current date.

Although we have vacated four times as many downward variance sentences (twelve) as upward variance sentences (three), remember that there were more than eleven times as many downward variance sentences imposed (9,307) as upward variance sentences (828). See App’x A. If we had been vacating downward and upward variances at the same rate, we would have vacated more than thirty-three downward variances (the three upward variances times eleven equals thirty-three) instead of only twelve.

And as Appendix B shows, seven of the twelve cases in which we vacated sentences as unreasonably short involved serious crimes where the sentencing court had varied all the way down to no jail time at all. Those probation-only cases include fraud crimes in which the losses ranged from hundreds of thousands of dollars to 1.4 billion dollars. E.g., United States v. Hayes, 762 F.3d 1300 (11th Cir.2014); United States v. Livesay, 587 F.3d 1274 (11th Cir.2009).

They also include a case where a law enforcement officer’s sentence included no jail time even though he had been convicted for beating a handcuffed and unresisting arrestee and then locking him in a hot car. United States v. Hooper, 566 Fed.Appx. 771 (11th Cir.2014) (unpublished). Of the remaining five cases in which we vacated as unreasonable downward variance sentences, two were cases in which the defendant had committed a serious crime but received virtually no jail time.

In both cases the custodial term was little more than a fig leaf — and a tiny one at that — insufficient to cover the naked unreasonableness of the sentence. In one of those cases, a participant in a massive nine-year securities fraud that had resulted in more than a billion dollars in losses for shareholders had been sentenced to only seven days in detention. See United States v. Martin, 455 F.3d 1227 (11th Cir.2006).

And in the other, a defendant who had defrauded a bank out of nearly $500,000 had been sentenced to detention in the custody of the United States Marshal for only five hours, to be served either the same day as sentencing or whenever convenient, to be followed by probation. See United States v. Crisp, 454 F.3d 1285 (11th Cir.2006). That was not so much a detention sentence as it was a minor delay in dinner plans.

The point is, where we have vacated downward variance sentences as unreasonably short, we have done so because they really were unreasonably short given the facts and circumstances of the cases including, most notably, the crimes. Our decisions simply do not show, as the dissent believes, that we review below guidelines sentences with especially close scrutiny, searching for reasons to vacate them. Instead, we regularly reject reasonableness challenges by the government to downward variance sentences after applying the same neutral principles that we applied in Irey and other .decisions.

See, e.g., United States v. McBride, 511 F.3d 1293, 1295, 1297-98 (11th Cir.2007) (affirming a sentence of 84 months, which was a downward variance from the guidelines range of 151 to 188 months, for a defendant who possessed 981 images and 45 videos of child pornography); United States v. Gray, 453 F.3d 1323, 1323-25 (11th Cir.2006) (affirming a sentence of 72 months, which was a downward variance from the guidelines range of 151 to 188 months, for a defendant who distributed child pornography); United States v.

Williams, 435 F.3d 1350, 1353-55 (11th Cir.2006) (affirming a sentence of 90 months, which was a downward variance from the guidelines range of 188 to 235 months, for a defendant who sold five grams of crack cocaine); United States v. Neufeld, 223 Fed.Appx. 887, 888-90 (11th Cir.2007) (unpublished) (affirming a sentence of 48 months, which was a downward variance from the guidelines range of 135 to 168 months, for a defendant who conspired to distribute MDMA); United States v.

Halsema, 180 Fed.Appx. 103, 103-05 (11th Cir.2006) (unpublished) (affirming a sentence of 24 months, which was a downward variance from the guidelines range of 57 to 71 months, for a defendant who possessed child pornography); United States v. Vawter, 167 Fed.Appx. 101, 101-03 (11th Cir.2006) (unpublished) (affirming a sentence of 6 months, which was a downward variance from the guidelines range of 24 to 30 months, for a defendant who kited checks).

To summarize, the dissent’s underlying theory is that Rosales-Bruno is the victim of what it claims is a bias in favor of longer sentences because, even though we have gotten the law right, the results of our decisions have signaled to district courts that we are more likely to affirm upward variance sentences than downward variance ones. The primary problem with the theory is that the facts established by the undisputed data show that no such signal has been sent or received.

The message that the results of our decisions have sent is that in our substantive review of sentences we defer to the district courts’ broad discretion regardless of whether they sentence above or below the guidelines range, except in the rare instances where they impose a clearly unreasonable sentence. And the district courts’ sentencing behavior shows that they have not received the phantom message the dissent fears we have sent. Since Booker, the district courts in this circuit have imposed eleven times as many downward variances as upward variances, and they have done so at a steadily increasing rate.

To quote the eminent logician Mark Twain: “How empty is theory in presence of fact!” VI. After considering and giving reasonable weight to each of the relevant § 3553(

a) factors, the district court in this case imposed an upward variance sentence. The sentence did not exceed the outer bounds of the wide range of discretion that district courts are afforded. Given all of the relevant facts and circumstances, the sentence is not unreasonable. AFFIRMED.

APPENDIX A Upward Variance Sentences Vacated as Unreasonable Fiscal Year Number of Defendants Sentenced Number of Upward Variances Number of Upward Variance Sentences Vacated as Unreasonable 2014 6,731 92 0 2013 6,716 94 2012 6,837 100 2011 6,932 116 2010 6,989 107 2009 7,098 99 2008 7,038 94 2007 6,892 60 2006 6,633 66 Totals 2006-14 61,866 828 Rate of Vacatur of Upward Variance Sentences: 0.36% Downward Variance Sentences Vacated as Unreasonable Number of Downward Number of Number of ' Variance Sentences Fiscal Year Defendants Sentenced Downward Vari- Vacated as Unreasonable _anees_ 2014_6/731_R516_2__ 2013_6/716_1,282_2_ 2012_6/337_1/278__0_ 2011_6/332_1/215_1_ 2010_6,989_1,272_2_ 2009_7/098_984_1_ 2008_7,038 740_2_ 2007_6,892_583_0_ 2006_6,633_437_2_ _Totals_ 2006-14_61,866_9/507_12 Rate of Vacatur of Downward Variance Sentences: 0.13% APPENDIX B Downward Variance Sentences Vacated as Substantively Unreasonable Criminal Conduct Guidelines Range Sentence Vacated as Unreasonable United States v.

Business owner masterminded a public Hayes, 762 F.3d corruption scheme — including over 1300 (11th Cir. $600,000 in bribes to state official in 2014) charge of higher education, as well as a money laundering conspiracy — that yielded more than $5 million in ill-gotten profits. 135-168 months in prison Probation with no term of imprisonment United States v. Officer punched a much smaller, hand-Hooper, 566 Fed. cuffed, unresisting arrestee multiple Appx. 771 (11th times in the face before locking him in Cir.2014) a hot car. 70-87 months in prison Probation with no term of imprisonment United States v.

McQueen, 727 F.3d 1144 (11th Cir. 2013) Corrections officers head-slammed, knuckle-rapped, and beat with a broken broomstick underage inmates, provoking one inmate to fight back, and then “fiercely choked” him while he begged for mercy; officers continued to beat the breathless inmate until he was “curled into a defensive ball,” lured him to his feet only to punch him in the nose, and finally choked him until he was unconscious.

Officers viciously beat at least five other inmates on separate occasions, leaving injuries that were visible days after the attacks, and then obstructed an investigation into their conduct. Defendant # 1: 15-21 months in prison Defendant # 1: 1 month in prison Defendant # 1: 1 month in prison Defendant # 2: 12 months in priso n United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013) Doctor bilked insurance providers of nearly $3 million in payments over five yeai's for services he knew were not rendered to his patients.

He admitted that was motivated by greed, not need. 57-71 months in prison Probation with no term of imprisonment United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) From 1993 to 2001, defendants provided money, recruits, and equipment to radical and violent Islamist terrorist organizations, including al-Qaeda. Defendants were also convicted of conspiracy to murder, kidnap, or maim persons overseas. 360 months to life in prison 208 months in prison United, States v.

Irey, 612 F.3d 1160 (11th Cir.2010) Remorseless defendant raped, sodomized, tortured, and humiliated over fifty impoverished Cambodian children, some of whom were as young as four year’s old, over a five year span. He memorialized the cruel acts in more than 1,200 photographs that he then disseminated on the Internet. 360 months in prison 210 months in prison United States v.

Livesayfi 587 F.3d 1274 (11th Cir. 2009) Senior accounting manager knowingly played a critical role in a massive nine-year securities and mail fraud scheme that resulted in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. 78;-97 months in prison Probation with no term of imprisonment United States v. Hendrick, 324 Fed. Appx. 867 (11th Cir.2009) Defendant was guilty of conspiracy, obstruction of justice, and witness tampering. Unspecified Probation with no term of imprisonment United States v.

Over a period of several years, defen-Pugh, 515 F.3d dant knowingly downloaded and dis-1179 (11th Cir. tributed to other web users at least 68 2008) images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. Defendant admitted that he once saw an image of a man having sex with a two- or three-year-old who had a dog collar around her neck. There were ten known child victims in the images found on defendant’s computer. 97-120 months in prison Probation with no term of imprisonment United States v.

Treasurer of company knowingly par-McVayfi 294 Fed. ticipated in a massive nine-year securi-Appx. 488 (11th ties and mail fraud scheme that result-Cir.2008) ed in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. 87-108 months in prison Probation with no term of imprisonment United States v.

CFO knowingly participated in a mas-Martinf 455 F.3d sive nine-year securities and mail 1227 (11th Cir. ■ fraud scheme that resulted in nearly 2006) $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. 108-135 months in prison 7 days in detention United States v. Comptroller of construction company Crisp, 454 F.3d knowingly prepared false financial 1285 (11th Cir. statements that defrauded a bank out 2006) of nearly $500,000. 24-30 months in prison Probation and 5 hours in custody of U.S. Marshal APPENDIX C .

Whatever his procedural objections were, Rosales-Bruno has abandoned them by not raising them on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.2014) (issues not briefed on appeal are abandoned); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.2004) ("Any issue that an appellant wants [us] to address should be specifically and clearly identified in the brief.... Otherwise, the issue — even if properly preserved at trial — will be considered abandoned.”) (quotation marks omitted). As a result, substantive reasonableness is the only issue in this appeal. .

See U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015). According to the Sentencing Commission, of the 74,126 cases that were sentenced in the 2014 fiscal year, 1,645 (2.2%) resulted in sentences above the guidelines range. Id.

That total included 343 (0.5%) cases in which the sentence imposed involved a departure above the guidelines range; 1,104 (1.5%) that involved a variance above the guidelines range; 123 (0.2%) that involved both a departure and a variance above the guidelines range; and 75 (0.1%) in which the Sentencing Commission could not determine whether the above guidelines sentence resulted from a variance or a departure. In another 38,364 (51.8%) of the cases the sentence imposed was below the guidelines range.

That number included 18,183 (24.5%) cases in which the court departed downward from the guidelines range; 12,894 (17.4%) cases in which the court varied downward from the guidelines range; 807 (1.1%) cases in which the report indicated both a departure and a variance downward from the guidelines range; 6,068 (8.2%) cases in which the government “sponsored” a below guidelines sentence that the Sentencing Commission did not classify as either a departure or a variance; and 412 (0.6%) cases in which there was a sentence below the guidelines range but the Sentencing Commission could not determine whether it resulted from a variance or a departure.

Id. The total of all of these sentences that are above the guidelines range (1,645, or 2.2%) and below the guidelines range (38,364, or 51.8%) is 40,009 (54.0%). See id. . See U.S. Sentencing Comm’n, n. 2, supra. . The dissent says it has "little doubt that if the Guidelines had been correctly calculated the first time around, Rosales-Bruno would have been sentenced to 27 months.” Dissenting Op. at 1280. There is nothing at all in the record to support that speculation — and it is a groundless guess that is contradicted by the district court's careful explanation of why it varied upward on remand.

The best evidence of what the court would have done the first time around with an advisory guidelines range of 21 to 27 months and the § 3553(

a) factors that exist in this case is, after all, what it did with that very range and those very § 3553(

a) factors on remand. . In Rosales-Bruno I, we applied the "modified categorical approach” to determine that Rosales-Bruno’s false imprisonment conviction under Florida Statute § 787.02 was not a "crime of violence” for guidelines purposes. See 676 F.3d at 1020. Our decision in Rosales-Bruno I predated the Supreme Court’s opinion in Descamps v.

United States, - U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which made clear that the modified categorical approach does not apply to statutes like the Florida false imprisonment statute that contain a “single, indivisible set of elements sweeping more broadly than the corresponding generic offense.” 133 S.Ct. at 2283 (quotation marks omitted). That, of course, does not change the inapplicability of the § 2L1.2(b)(1)(

A) enhancement, nor does it change the facts underlying Rosales-Bruno’s prior convictions or the district court's duty to consider them under § 3553(a). .' See supra note 5. . The dissent suggests that Rosales-Bruno shows "a decreasing pattern of criminality.'’ Dissenting Op. at 1284. The rosy picture the dissent paints of Rosales-Bruno’s criminal trajectory fails to take into account that in 2007 Rosales-Bruno’s criminal conduct escalated from driving drunk to beating up a woman. . See U.S.

Sentencing Comm'n, Quick Facts: Illegal Reentry Offenses (2014), available at http://www.ussc.gov/sites/default/files/pdi7 research-and-publications/quick-facts/Quick_ Facts_Illegal_ReentryFY 13 .pdf. . See U.S. Sentencing Comm’n, supra n. 8. . The dissent repeats and relies on the same speculation when it contends that the district court did not provide a justification that was "sufficiently compelling to support the degree of the variance.” Dissenting Op. at 1282; see also Gall, 552 U.S. at 50, 128 S.Ct. at 597.

It suggests that "the justifications supporting the variance imposed here amount to no more than a recitation of characteristics that are common to most convicted-felon, category V illegal reentrants.” Dissenting Op. at 1282 (quotation marks omitted). But there is no alchemy in repetition that transmutes a guess into a longed for fact. ..

The dissent claims its new test would not "require an unprecedented degree of explicit comparison between offenders,” because "[a]ll [it] would require is that the sentencing judge give a credible justification for a major variance from the Guidelines beyond factors that are typical of defendants subject to the same advisory range.” Dissenting Op. at 1285.

But of course that is what the district court did here: faced with an advisory guidelines range that no longer reflected the violence of Rosales-Bruno's earlier crimes, the district court described that violence in some detail, showing how in the court’s view Rosales-Bruno was not "typical of defendants subject to the same advisory ránge,” Dissenting Op. at 1285, and then the court varied upward to account for it. .

We look to these sentencing facts because they, and not any graphic one-time occurrences, are the most reliable method of determining whether the message the dissent fears has been sent and received. “Cognitive psychology tells us that the unaided human mind is vulnerable to many fallacies and illusions because of its reliance on its memory for vivid anecdotes rather than systematic statistics.” Steven Pinker, quoted in "Steven Pinker: Fighting Talk from the Prophet of Peace,” The Observer, Oct. 15, 2011, available at http:// www.theguardian.com/science/2011/oct/15/ steven-pinker-better-angels-violence-interview (last visited June 9, 2015). .

This figure comes from data collected by the United States Sentencing Commission. U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2013, Eleventh Circuit 11 tbl.8 (2014); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2012, Eleventh Circuit 11 tbl.8 (2013); U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2012); U.S.

Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2010, Eleventh Circuit 11 tbl.8 (2011); U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2009, Eleventh Circuit 11 tbl.8 (2010); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2008, Eleventh Circuit 11 tbl.8 (2009); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2007, Eleventh Circuit 11 tbl.8 (2008); U.S.

Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2006, Eleventh Circuit 11 tbl.8 (2007). .These figures also come from Table 8 in the Sentencing Commission reports cited supra in footnote 13. They exclude instances where a district court imposed a departure, as opposed to a variance, above or below the guidelines range. They also exclude instances in which the district court appears to have imposed both a departure and a variance above or below the guidelines range.

However, the data in Table 8 of those Sentencing Commission reports also shows that courts in our circuit grant downward departures far more often (about five times more often if we exclude government-sponsored downward departures, and about 45 times more often if we include them) than they grant upward departures. Which means that if we included departures in our numbers the results would show an even greater disparity between outside-the-guidelines sentences favorable to defendants as opposed to the government. . See supra n. 13. Like the figures cited in footnote 14, supra, these exclude departure

[…]