United States v. Tychella Letrein Robinson , 401 F. App'x 400 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11266 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 21, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-14062-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
TYCHELLA LETREIN ROBINSON,
lllllllllllllllllllDefendant-Appellant.
________________________
No. 10-11273
Non-Argument Calendar
________________________
D.C. Docket No. 2:09-cr-14031-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
TYCHELLA LETREIN ROBINSON,
lllllllllllllllllllDefendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(October 21, 2010)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appeal No. 10-11273 stems from a Southern District of Florida indictment
charging Tychella Letrein Robinson and Patric Vanashaye Johnson with
conspiracy to use interstate wires and mail services to open bank accounts with the
personal identification information of third parties, in violation of 18 U.S.C. §§
1341, 1343, and 1344, with several substantive mail,wire, and bank fraud offenses,
and with aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1). Appeal
No. 10-11266 stems from a Southern District of Florida information charging
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Robinson with conspiracy to use interstates wire and mail services to open bank,
debit, and credit cards using stolen identities, in violation of 18 U.S.C. §§ 1341,
1342, 1343, and 1344. Pursuant to a plea agreement covering both cases,
Robinson pled guilty to the conspiracy charged in both cases and to two counts of
bank fraud, and two counts of aggravated identity theft in the first case. The
district court, in turn, sentenced her to prison as follows: concurrent terms of 51
months on the two conspiracy charges and on the two bank fraud counts and
consecutive 24 months’ terms on the aggravated identity theft counts, for a total
term of imprisonment of 99 months. Robinson now appeals her sentences.
Robinson contends that her total sentence of 99 months is unreasonable
because the district court did not adequately and properly consider the sentencing
factors of 18 U.S.C. § 3553(a) or the arguments she addressed to those factors. In
particular, she contends that there is an unwarranted disparity between her
sentence and that of her co-conspirator and that a sentence at the low-end of her
Guidelines sentencing range and concurrent sentences on the aggravated identity
theft counts would have been sufficient, but not greater than necessary to comply
with the purposes of § 3553(a).
We review “all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.”
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United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation
omitted). Pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169
L.Ed.2d 445 (2007), we must review the sentencing process for both procedural
error and substantive reasonableness. Livesay, 525 F.3d at 1091. Procedural
errors occur when the district court fails to calculate or improperly calculates the
Guidelines sentencing range, treats the Guidelines as mandatory, fails to consider
the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails
to explain adequately the chosen sentence. Id.
A sentencing judge “should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). A sentencing judge
is not required to state expressly on the record which, if any, § 3553(a) factors
were considered in determining a sentence. United States v. Ortiz-Delgado, 451
F.3d 752, 758 (11th Cir. 2006). Rather, “an acknowledgment by the district court
that it has considered the defendant’s arguments and the [statutory] factors in
section 3553(a) is sufficient under Booker[1].” United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005); see also Rita, 551 U.S. at 358, 127 S.Ct. at 2469
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United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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(holding that a brief explanation of the sentencing decision was sufficient, in part,
because the record showed that the district court considered the defendant’s
supporting evidence).
We examine substantive reasonableness “under an abuse of discretion
standard, taking into account the totality of the circumstances.” Livesay, 525 F.3d
at 1091 (quotations omitted). Our reasonableness review is deferential, and
requires us to “evaluate whether the sentence imposed by the district court fails to
achieve the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d
at 788. “[T]here is a range of reasonable sentences from which the district court
may choose.” Id. The party challenging the sentence “bears the burden of
establishing that the sentence was unreasonable in light of [the] record and the
factors in section 3553(a).” Id. A sentence may be substantively unreasonable if a
district court unjustifiably relied on any one § 3553(a) factor, failed to consider
pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence
on impermissible factors. United States v. Pugh, 515 F.3d 1179, 1191-92 (11th
Cir. 2008). Although a sentence within the Guidelines sentencing range is not per
se reasonable, we have stated that we would ordinarily expect such a sentence to
be reasonable. See Talley, 431 F.3d at 787-88; see also Rita, 551 U.S. at 347, 127
S.Ct. at 2462-63 (noting that a sentence within the properly calculated Guidelines
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range “significantly increases the likelihood that the sentence is a reasonable
one.”).
Pursuant to § 3553(a), the sentencing judge shall impose a sentence
“sufficient, but not greater than necessary,” to comply with the purposes of
sentencing. 18 U.S.C. § 3553(a). Namely, the purposes of sentencing include the
need for the sentence to reflect the seriousness of the offense, promote respect for
the law, provide just punishment for the offense, deter criminal conduct, protect
the public from future crimes of the defendant, and provide the defendant with
needed educational or vocational training or medical care. Id. § 3553(a)(2). The
judge must also consider the following factors in determining a particular
sentence: the nature and circumstances of the offense and the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7). The weight accorded to the
§ 3553(a) factors is within the district court’s discretion. See United States v.
Clay, 483 F.3d 739, 743 (11th Cir. 2007).
A sentence within the Guidelines sentencing range necessarily accounts for
the need to avoid unwarranted sentencing disparities because the Sentencing
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Commission considered that factor in setting the sentencing ranges. Gall, 522
U.S. at 54, 128 S.Ct. at 599. Moreover, “[d]isparity between the sentences
imposed on codefendants is generally not an appropriate basis for relief on appeal”
because a sentence adjustment on that basis could create unwarranted disparities
between the sentence imposed on the defendant and those imposed on similar
defendants in other cases. United States v. Regueiro, 240 F.3d 1321, 1325-26
(11th Cir. 2001).
We conclude that Robinson’s total sentence of 99 months is reasonable.
First, the sentence is procedurally reasonable because the district court correctly
calculated the Guidelines sentencing range, treated the Guidelines as advisory, and
considered the § 3553(a) sentencing factors. Second, based on the totality of the
circumstances, Robinson’s sentence, which is within the sentencing range, is
substantively reasonable. Based on Robinson’s conduct, which included that she:
(1) used stolen identities to obtain payday loans, open fraudulent online bank
accounts with multiple banks, and apply for credit cards; (2) took out payday loans
for eight to 15 people per week for two years; (3) successfully opened
approximately five fraudulent bank accounts per week from October 2008 until
January 2009; (4) had over 300 victims, including two banks; (5) was responsible
for a loss amount of over $1,200,000; and (6) continued to use stolen identity
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information to obtain payday loans and open fraudulent bank accounts after she
was arrested in January 2009, a total sentence at the high-end of the sentencing
range for the conspiracy and bank fraud and consecutive sentences for aggravated
identity theft were sufficient, but not greater than necessary, to promote respect for
the law, deter criminal conduct, and protect the public from future crimes by
Robinson. Moreover, Robinson has failed to demonstrate that any disparity
between her total sentence and her co-conspirator’s sentence is unreasonable,
especially given that the Guidelines account for the need to avoid unwarranted
sentencing disparities.
Robinson’s sentences, as imposed, are accordingly
AFFIRMED.
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