United States v. Shemtov Michtavi ( 2007 )


Menu:
  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    MAY 24, 2007
    No. 06-11514                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 02-20030-CR-UUB
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    SHEMTOV MICHTAVI,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (May 24, 2007)
    Before BLACK, MARCUS and WILSON, Circuit Judges.
    PER CURIAM:
    Shemtov Michtavi appeals his 240-month sentence, imposed on remand,
    following his conviction for conspiracy to distribute a mixture and substance
    containing a detectable amount of Methylenedioxymethamphetamine (“MDMA”),
    or “Ecstasy,” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. We
    previously remanded this case to the district court for re-sentencing after
    determining that constitutional and statutory Booker errors had occurred. On
    remand, the district court imposed an identical sentence when considering the
    guidelines as advisory. On appeal, Michtavi argues that the district court erred by
    failing to determine at re-sentencing the drug quantities attributable to him, and by
    sentencing him based on a drug quantity determination that was not found by the
    jury. Michtavi also argues that his sentence was unreasonable under 18 U.S.C. §
    3553(a).
    I. Drug Quantity Determination
    Michtavi challenged the findings as to the drug quantity amount attributed to
    him both at his initial sentencing hearing and at re-sentencing. At re-sentencing,
    the district adopted its quantity findings from the initial hearing. We review a
    sentencing court’s application of the Sentencing Guidelines de novo. United States
    v. Edmonds, 
    348 F.3d 950
    , 952-53 (11th Cir. 2003). We review a district court’s
    drug quantity determination for clear error. United States v. Mertilus, 
    111 F.3d 870
    , 873 (11th Cir. 1997).
    2
    Section 2D1.1 of the Sentencing Guidelines establishes the base-offense
    levels for drug offenses according to the quantity of drugs attributable to the
    defendant. See U.S.S.G. § 2D1.1. “The government must establish the drug
    quantity by a preponderance of the evidence.” 
    Mertilus, 111 F.3d at 873
    In a drug
    conspiracy, a defendant may be held accountable not only for his own acts but also
    for “‘all reasonably foreseeable acts and omissions of others in furtherance of the
    jointly undertaken criminal activity.’” United States v. Beasley, 
    2 F.3d 1551
    , 1561
    (11th Cir.1993) (quoting U.S.S.G. § 1B1.3(a)(1)(B)). “Thus, the Guidelines require
    a district court to attribute to a defendant all drugs foreseeably distributed pursuant
    to a common scheme or plan of which that defendant's offense of conviction was a
    part.” United States v. Lawrence, 
    47 F.3d 1559
    , 1566 (11th Cir. 1995).
    The district court did not clearly err in its initial drug quantity determination,
    and it did not err in relying on its finding at re-sentencing. The district court
    attributed 182.2 kilograms of MDMA tablets seized from the New York apartment
    to Michtavi. Michtavi conspired with Zev Rosenstein, who owned the seized
    drugs, and Mordechai Cohen to distribute drugs. Michtavi told Cohen that if Cohen
    could find buyers for the MDMA, Michtavi could supply the pills. The apartment
    was used to complete several drug deals which Michtavi brokered. Also, the
    recorded telephone conversations between Michtavi and Cohen, wherein they
    3
    discussed the seizure of the 182.2 kilograms of MDMA in the New York apartment
    and Cohen’s responsibility for the money owed for the drugs, evidences that the
    amount ultimately seized was reasonably foreseeable to Michtavi. Given that the
    district court had already heard the evidence at trial and argument on the issue at
    the initial sentencing hearing, there was no error in relying on its findings at re-
    sentencing when neither side requested a new evidentiary hearing.
    Additionally, Michtavi argues that the drug quantity finding should have
    been made by a jury. We have held that in a § 841 case in which a defendant’s
    ultimate sentence falls at or below the statutory maximum penalty provided
    in § 841(b)(1)(c), there is no constitutional error stemming from Apprendi v. New
    Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
    (2000), and drug quantity
    need not have been submitted to a jury and proven beyond a reasonable doubt. See
    United States v. Underwood, 
    446 F.3d 1340
    , 1344-45 (11th Cir. 2006), cert.
    denied, 
    127 S. Ct. 225
    (2006) (citing United States v. Sanchez, 
    269 F.3d 1250
    (11th Cir. 2001)). As Michtavi’s ultimate sentence was at the statutory maximum
    of 20 years, the district court did not violate Michtavi’s constitutional rights.
    II. Reasonableness of Michtavi’s Sentence
    Michtavi contends that his sentence was unreasonable because the district
    4
    court (1) failed to adequately consider his health and age and (2) created
    sentencing disparities between Michtavi and co-conspirators. After United States
    v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    , 
    160 L. Ed. 2d 621
    (2005), we review
    sentences under the advisory guideline regime for reasonableness. Reasonableness
    review is deferential, requiring us to "evaluate whether the sentence imposed by
    the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C.]
    section 3553(a).” United States v. Talley, 
    431 F.3d 784
    , 788 (11th Cir. 2005)(per
    curiam). “The weight to be accorded any given § 3553(a) factor is a matter
    committed to the sound discretion of the district court[,]” and we “will not
    substitute our judgment in weighing the relevant factors . . .” United States v.
    Williams, 
    456 F.3d 1353
    , 1363 (11th Cir. 2006), petition for cert. filed, (U.S. Oct.
    19, 2006) (No. 06-7352).
    Michtavi bears the burden of establishing that his sentence is unreasonable
    in light of the record and § 3553(a) sentencing factors. 
    Talley, 431 F.3d at 788
    .
    The district court must engage in a two step process. First it must correctly
    calculate the defendant’s guideline range; second, it must consider the § 3553(a)
    sentencing factors. 
    Id. at 786.
    The court is not required to explicitly consider each
    of these factors on the record. United States v. Scott, 
    426 F.3d 1324
    , 1329-30
    (11th Cir. 2005). It is enough for the court to acknowledge the parties’ arguments
    5
    and state that it has considered the factors. 
    Id. The district
    court here correctly calculated the guideline range and stated
    that it had considered the statements of the parties, the presentence investigation
    report containing the advisory guidelines, as well as the factors set forth
    in § 3553(a). While the district court was not required to discuss each factor on the
    record, it considered Michtavi’s deteriorating medical condition, but ultimately
    concluded that factors other than his age and physical health should be afforded
    greater weight. The court emphasized the nature, circumstances, and seriousness
    of the offense. Specifically, the court focused on the large scope and international
    character of the criminal enterprise, and determined that such conduct constituted
    an “assault on the sovereignty of the United States” and its citizens. Further, the
    court also considered the need to provide a just punishment and the need for
    deterrence as it explained that a sentence at the midpoint of the guidelines range,
    which was also the statutory maximum, provided the most just and reasonable
    punishment under the circumstances.
    Furthermore, no sentencing disparity existed between Michtavi and similar
    situated co-conspirators, because co-conspirators who received substantially lesser
    sentences than Michtavi either had cooperated with the government or had
    acquired a specific amount of MDMA. Additionally, the evidence established that
    6
    Michtavi’s conduct was distinguishable from that of his codefendants as Michtavi
    acted as a broker for the drug deals. Therefore, there was a reason for the
    sentencing disparity, and, thus, it was not unwarranted. In sum, Michtavi has not
    carried his burden to show that his sentence, properly determined using
    the § 3553(a) factors, was unreasonable. Accordingly, we affirm.
    AFFIRMED.
    7