United States v. Frank Nickens

── United States v. Frank Nickens ── Case No.: 25-12682 Court: Court of Appeals for the Eleventh Circuit Date: March 26, 2026 Category: NEW USCA11 Case: 25-12682 Document: 28-1 Date Filed: 03/26/2026 Page: 1 of 6 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-12682 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANK RICHARD NICKENS, Defendant- Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:24-cr-00211-PGB-NWH-1 ____________________ Before LUCK, LAGOA, and MARCUS, Circuit Judges. PER CURIAM: Frank Nickens appeals his sentence of 36 months’ imprison- ment for wire fraud, an upward variance from the guideline range of 8 to 14 months’ imprisonment. The conviction arose out of a USCA11 Case: 25-12682 Document: 28-1 Date Filed: 03/26/2026 Page: 2 of 6 2 Opinion of the Court 25-12682 scheme Nickens devised during the COVID-19 pandemic, in which he created a company that falsely claimed to be a manufacturer of hand sanitizer, causing about $70,000 in loss to his victims. On ap- peal, Nickens argues that his sentence is substantively unreasona- ble because the district court improperly considered the 18 U.S.C. § 3553(a) factors and gave undue weight to his criminal history. Af- ter thorough review, we affirm. When reviewing for substantive reasonableness, we con- sider the totality of the circumstances under a deferential abuse-of- discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A party challenging a sentence bears the burden of proving that the sentence is unreasonable in light of the record, the factors listed in 18 U.S.C. § 3553(a), 1 and the substantial deference afforded the sen- tencing court. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). 1 The § 3553(a) factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for the sen- tence imposed to afford adequate deterrence; (4) the need to protect the pub- lic; (5) the need to provide the defendant with educational or vocational train- ing or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Com- mission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). Section 3553(a)(2)(C) is known as the “specific deterrence or incapacitation factor.” Irey, 612 F.3d at 1212–13. USCA11 Case: 25-12682 Document: 28-1 Date Filed: 03/26/2026 Page: 3 of 6 25-12682 Opinion of the Court 3 We measure the substantive reasonableness of a sentence against the § 3553(a) factors and “the totality of the circumstances.” United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010) (en banc) (quoting United States v. Pugh, 515 F.3d 1179, 1191–92 (11th Cir. 2008)). A sentencing court abuses its “considerable di