United States v. Rosa Stewart , 378 F. App'x 904 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MAY 03, 2010
No. 09-12339 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-21012-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSA STEWART,
Defendant-Appellant.
________________________
No. 09-12341
Non-Argument Calendar
________________________
D. C. Docket No. 08-21012-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS STEWART,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 3, 2010)
Before TJOFLAT, BIRCH and MARTIN, Circuit Judges.
PER CURIAM:
Rosa Stewart (“Rosa”) and Carlos Stewart (“Carlos”) (collectively “the
Stewarts”) pled guilty to conspiracy to commit mail fraud, in violation of 18
U.S.C. § 1349, and the district court sentenced them to prison terms of 60 months.
They now appeal their sentences, contending (1) that the district court erred in
determining their offense levels under the Sentencing Guidelines by refusing to
afford them a three-level reduction pursuant to U.S.S.G. § 2X1.1(b)(2),1 and (2)
that their sentences are unreasonable. We consider these contentions in turn.
I.
The Guideline applicable to conspiracy to commit mail fraud is U.S.S.G.
1
“We review the district court’s application of the guidelines de novo, and its factual
findings for clear error.” United States v. Watkins, 477 F.3d 1277, 1279 (11th Cir. 2007).
2
§ 2X1.1, which covers attempt, solicitation, and conspiracy offenses not covered
by a specific offense Guideline. U.S.S.G. § 2X1.1. When the offense of
conviction is a conspiracy, § 2X1.1(b)(2) provides for a three-level reduction to
the defendant’s base offense level:
unless the defendant or a co-conspirator completed all the acts the
conspirators believed necessary on their part for the successful
completion of the substantive offense or the circumstances
demonstrate that the conspirators were about to complete all such acts
but for apprehension or interruption by some similar event beyond
their control.
U.S.S.G. § 2X1.1(b)(2). The commentary to § 2X1.1 offers the following
clarification:
In most prosecutions for conspiracies or attempts, the
substantive offense was substantially completed or was
interrupted or prevented on the verge of completion by
the intercession of law enforcement authorities or the
victim. In such cases, no reduction of the offense level is
warranted. Sometimes, however, the arrest occurs well
before the defendant or any co-conspirator has
completed the acts necessary for the substantive offense.
Under such circumstances, a reduction of 3 levels is
provided under § 2X1.1(b)(1) or (2).
U.S.S.G. § 2X1.1, comment. (backg’d).
In United States v. Khawaja, we concluded that defendants convicted of
conspiracy to commit money laundering were entitled to the three-level reduction
in § 2X1.1(b)(2) for the following reason:
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The record shows that although the conspirators intended
to launder $2 million, they managed to launder only
$570,556 prior to apprehension. The conspiracy was
dependent on the IRS’s fronting of the purported drug
money, and the record does not show that at the time the
IRS terminated its sting operation, Appellants had
arranged for specific transactions to occur in the future.
Accordingly, the conspirators had not taken crucial steps
(including for example, preparing falsified
documentation, securing cashier’s checks, or arranging
meetings for the exchange) to launder the remaining
balance of $2 million. Consequently, Appellants neither
believed that they had completed all the acts necessary
on their part nor were they about to complete all such
acts for the laundering of the entire $2 million.
118 F.3d 1454, 1458 (11th Cir. 1997).
Applying Khawaja, we subsequently held in United States v. Puche that
money-laundering conspirators were similarly entitled to the three-level reduction
because, although they previously had laundered over $700,000, they had not
“taken crucial steps, such as contacting the [undercover] agents or preparing
paperwork for more transfers, to launder the remaining six million dollars.” 350
F.3d 1137, 1156 (11th Cir. 2003). Indeed, the defendants in Puche specifically
told the undercover agent that they “wanted to hold off on [future] transfers” for
the time being. Id.In United States v. Lee, we held that defendants convicted of mail fraud
were not entitled to the analogous three-level reduction for attempt offenses in
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§ 2X1.1(b)(1). 427 F.3d 881, 893-94 (11th Cir. 2005); see U.S.S.G.
§ 2X1.1(b)(1). We arrived at this conclusion because, although the defendants
submitted fraudulent checks that were not honored, they had nonetheless
“clearly . . . completed all the acts necessary to commit mail fraud” because the
fact that those fraudulent checks were not honored was beyond their control. Lee,
427 F.3d at 894 (emphasis added) (explaining that the defendants had mailed
several letters and “completed the acts underlying their scheme to defraud”).
More recently, in Watkins, we addressed whether the analogous three-level
reduction for solicitation offenses in § 2X1.1(b)(3)(A) applied when the defendant
solicited an undercover agent to commit arson. 477 F.3d at 1278; see U.S.S.G.
§ 2X1.1(b)(3)(A). After we “adopt[ed] the approach taken in [its] application of
§ 2X1.1(b)(2),” the issue became “whether or not the person solicited had taken
all the ‘crucial steps’ necessary to demonstrate to the defendant that the offense
was about to be completed.” Watkins, 477 F.3d at 1281 (emphasis in original).
We ultimately remanded the case to the district court for further findings, because
“the only steps taken were a diagram and a discussion about the placement of the
incendiary devices. There was no evidence, however, that the undercover officer
had obtained the actual devices or the means to complete the arson.” Id.In this case, the Stewarts and their co-conspirators had taken “crucial steps”
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towards completing the substantive mail fraud offense at the time law enforcement
intervened. This is so because they had established a detailed plan to carry out the
offense, they had the means to execute the plan, and they were on the verge of
executing the plan. The district court thus did not err by declining to award the
Stewarts a three-level reduction, pursuant to § 2X1.1(b)(2). We therefore turn to
the Stewart’s claim that their sentences are substantively unreasonable.
II.
The Stewarts argue that because (1) their 60-month’s prison terms are at least
double their correctly-determined Guidelines sentencing ranges, (2) no other
codefendant was sentenced above his or her Guidelines sentencing range, (3) the
Government did not request a variance from the sentencing range for either Rosa
or Carlos, and (4) the district court failed to state with the requisite specificity why
such dramatically enhanced sentences were warranted, their sentences are
substantively unreasonable given the sentencing factors of 18 U.S.C. § 3553(a).
They further contend that (1) the district court ignored important § 3553(a)
mitigating factors, (2) the court’s statement that they had a “cavalier disregard for
the law” was unfounded, and (3) the court’s theory that the planned arson that
underlay the mail fraud scheme had the potential of causing “incredible harm to
homes nearby” and danger to individuals traveling on nearby roads is unsupported
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by the record.
We review a final sentence for reasonableness in light of the 18 U.S.C. § 3553(a)
factors. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
Review for reasonableness is deferential and is analyzed under the abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,
169 L.Ed.2d 445 (2007). A sentence outside the Guidelines sentencing range is
not presumed unreasonable, but rather, we “may consider the extent of the
deviation,” giving “due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id. We will not substitute
the court’s judgment in weighing the relevant factors. United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007).
The party challenging a sentence bears the burden of establishing that the sentence
is unreasonable in light of both the record and the § 3553(a) factors. United States
v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). The review for substantive
unreasonableness involves an examination of the totality of the circumstances,
including an inquiry into whether the § 3553(a) factors support the sentence in
question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert.
denied, 129 S.Ct. 2848 (2009). If a district court decides that a sentence outside of
the Guidelines sentencing range is warranted, it “must consider the extent of the
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deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance.” Gall, 522 U.S. at 50, 128 S.Ct. at 597.
A sentence may be substantively unreasonable if it does not achieve the purposes
of sentencing stated in § 3553(a). United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008). Moreover, when considering whether a defendant’s sentence is
reasonable, we have compared the sentence actually imposed to the statutory
maximum. See, e.g., United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir.
2006) (upholding sentence as reasonable in part because it was “appreciably below
the statutory maximum”). “[T]here is a range of reasonable sentences from which
the district court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
An outside-the-Guidelines sentence need not be justified by “extraordinary
circumstances,” and the Supreme Court has rejected the use of “a rigid
mathematical formula that uses the percentage of a departure as the standard for
determining the strength of the justifications required for a specific sentence.”
Gall, 552 U.S. at 47, 128 S.Ct. at 595. The fact that we reasonably might conclude
that a different sentence is appropriate is not sufficient to warrant reversal. United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).
The § 3553(a) factors include, among other things: (1) the applicable guidelines
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range; (2) the nature and circumstances of the offense; (3) the history and
characteristics of the defendant; (4) 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; (5) the need for adequate deterrence to criminal
conduct; (6) protection of the public from further crimes of the defendant; and (7)
the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1)-(6).
Based on the record, both Rosa and Carlos have failed to carry their burden of
showing that their sentences were substantively unreasonable, given that the
district court considered the mitigating factors noted by their counsel, gave each of
their cases an individualized review, explicitly stated that it considered the § 3553
factors (and did so in substance on the record), and ultimately opined that the
nature, circumstances, and seriousness of the offense weighed in favor of
imposing prison terms of 60 months. Moreover, Rosa’s and Carlos’s sentences are
well below the statutory maximum of 20 years imprisonment, and the court did not
need to show extraordinary circumstances to justify the outside-the-Guidelines
sentences. Accordingly, the district court committed no error in calculating the
Guidelines sentencing range, nor did it impose unreasonable sentences.
AFFIRMED.
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