United States v. Shemtov Michtavi ( 2007 )

[DO NOT PUBLISH]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).
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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
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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
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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
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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
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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.
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