United States v. Harsh Sharma , 407 F. App'x 401 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 09-15195 & 09-15196 ELEVENTH CIRCUIT
JANUARY 5, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00069-CR-FTM-29DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARSH SHARMA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(January 5, 2011)
Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Harsh Sharma appeals the 60-month total prison sentence imposed
by the district court following his conviction on one count of knowingly
distributing controlled substances, Hydrocodone and Diazepam, and two counts of
knowingly possessing with intent to distribute Hydrocodone.
As an initial matter, Sharma’s plea agreement contained an appeal waiver.
The appeal waiver expressly permits Sharma to appeal his sentence where the
sentence exceeds the guideline range as determined by the district court.
Accordingly, Sharma’s argument against enforcement of his appeal waiver is
superfluous.
I.
Sharma first argues that the district court erred in applying a two-level
increase at sentencing for abuse of position of trust, pursuant to U.S.S.G. § 3B1.3,
as the enhancement was not supported by the evidence presented at sentencing.
Sharma concedes that he withdrew his objection to this enhancement, but
maintains that he is still entitled to relief on appeal.
We have held that a defendant’s clear and affirmative withdrawal of a
sentencing objection precludes review of such objection on appeal. United States
v. Horsfall, 552 F.3d 1275, 1283-84 (11th Cir. 2008), cert. denied, 129 S. Ct. 2034(2009); see also United States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997)
2
(defendant waived objection to upward departure).
On this record, we conclude that Sharma cannot obtain review of the
enhancement he received for abuse of a position of trust because he expressly
withdrew his objection to this enhancement at the sentencing hearing. When the
government prepared to present testimony at Sharma’s sentencing hearing in
support of the proposed enhancement for abuse of a position of trust, Sharma’s
counsel announced that Sharma was withdrawing his earlier objection to the
enhancement. Upon being informed that Sharma was withdrawing his objection,
the district court confirmed directly with Sharma that he agreed with the decision
to withdraw his objection, and that he understood he was therefore facing an
additional two-level increase to his total offense level. The district court’s actions
in this regard are similar to Horsfall, wherein the district court went the additional
step of exploring the decision to waive the sentencing objection directly with the
defendant, to ensure that it was knowing and voluntary. Horsfall, 552 F.3d at
1283. Per Horsfall, Sharma has therefore waived any argument he may have had
regarding the challenged enhancement. Id.II.
Sharma next argues that his total sentence was substantively unreasonable in
light of the 18 U.S.C. § 3553(a) factors and the purposes of the Sentencing
3
Guidelines. Sharma essentially challenges the district court’s weighing of the
§ 3553(a) factors and its purported rejection of his mitigation arguments.
“Courts of appeals must review all sentences-whether inside, just outside, or
significantly outside the Guidelines range-under a deferential abuse-of-discretion
standard.” United States v. Sanchez, 586 F.3d 918, 935 (11th Cir. 2009), cert.
denied, 130 S. Ct. 1926 (2010) (citing Gall v. United States, 552 U.S. 38, 40, 128
S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007) (alterations omitted)). Accordingly, we
review sentencing decisions for an abuse of discretion. United States v. Irey, 612
F.3d 1160, 1189-90 (11th Cir. 2010) (en banc); United States v. Shaw, 560 F.3d
1230, 1237 (11th Cir. 2009), cert. denied, 129 S. Ct. 2847 (2009). We evaluate the
substantive reasonableness of a sentence under the totality of the circumstances,
including the extent of any upward or downward variance from the guidelines.
Irey, 612 F.3d at 1189-90. “Sentences outside the guidelines are not presumed to
be unreasonable, but [the Court] may take the extent of any variance into [its]
calculus.” Shaw, 560 F.3d at 1237 (citation omitted).
“When the district court decides after serious consideration that a variance is
in order, it should explain why that variance is appropriate in a particular case with
sufficient justifications.” Shaw, 560 F.3d at 1238 (internal quotation marks
omitted). “The justifications must be compelling enough to support the degree of
4
the variance and complete enough to allow meaningful appellate review. But the
Supreme Court has specifically rejected the idea that an extraordinary justification
is required for a sentence outside the guidelines range.” Id. (internal quotation
marks omitted).
Because of its institutional advantage in making sentence
determinations, a district court has considerable
discretion in deciding whether the § 3553(a) factors
justify a variance and the extent of one that is
appropriate. We must give its decision due deference.
We may vacate a sentence because of the variance only if
we are left with the definite and firm conviction that the
district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences
dictated by the facts of the case. However, that we might
reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal.
Shaw, at 1238 (citations and internal quotation marks omitted).
“A defendant challenging his sentence bears the burden of establishing that
it is unreasonable.” Sanchez, 586 F.3d at 935 (citation omitted).
Sharma has failed to demonstrate that his sentence is substantively
unreasonable as a result of the upward variance applied by the district court. As
required by precedent, the district court explained its decision to apply an upward
variance, citing in its Statement of Reasons its reliance on several of the § 3553(a)
factors, including the nature and circumstances of the offenses, the seriousness of
5
the offenses, the need for just punishment and deterrence, and the need to protect
the public from Sharma’s further crimes. The concurrent 60-month prison
sentences imposed, though significantly above the 41-month high-end for each
count of conviction under the applicable guideline, are still significantly less than
the statutory maximum of 15 years (5 years for each count of conviction). Under
these facts, Sharma has failed to meet his burden to show that the district court
abused its discretion, i.e., that his sentence was unreasonable. See, e.g., Sanchez,
586 F.3d at 934 (sentence was not unreasonable where the district court applied
both an upward departure and an upward variance based on criminal history,
imposing a 200-month prison sentence where the guideline range before an upward
departure was 130 to 162 months); Shaw, 560 F.3d at 1236-37 (sentence was not
unreasonable where district court varied upward based on several § 3553(a)
factors, imposing a statutory maximum 120-month sentence where the guideline
range was 30 to 37 months).
For the aforementioned reasons, we affirm Sharma’s sentences.
AFFIRMED.
6