USCA11 Case: 22-10505 Document: 44-1 Date Filed: 06/09/2023 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10505
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC GROSSMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60300-AHS-1
____________________
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2 Opinion of the Court 22-10505
ON PETITION FOR REHEARING
Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
The Defendant’s motion for panel rehearing is granted, and
the panel withdraws the previous opinion, dated April 11, 2023, and
substitutes the following opinion in its place. In this opinion, we
remove a phrase from one sentence on the top of page 9 to con-
form with the record, and we do not change the opinion in any
other respect.
Isaac Grossman appeals his total sentence of 87 months’ im-
prisonment for mail fraud, wire fraud, and money laundering. Ac-
cording to the presentence investigation report (“PSI”), Gross-
man’s convictions stemmed from a scheme in which he solicited
potential investors to invest in a company he owned called
Dragon‑Click Corp. Grossman told them that he was a successful
entrepreneur, investor, and hedge fund manager and that
Dragon‑Click was developing an app that would revolutionize
online shopping. He explained that their money would be used for
product development, patent applications, or facilitation of a sale
to a larger tech company and that he would double, triple, or quad-
ruple their investment by selling Dragon‑Click for over $1 billion.
In reality, however, Grossman did not use their money for any le-
gitimate business purposes, and instead, spent at least $1,300,000
on gambling, diamond jewelry, luxury cars, his home mortgage,
and his children’s private education. About 26 total victims, most
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22-10505 Opinion of the Court 3
of whom were elderly retirees, invested a total of $2,400,000 in
Dragon‑Click. After Grossman pled guilty, the district court im-
posed an 87‑month sentence, at the low end of the advisory guide-
line range.
On appeal, Grossman argues that the district court erred in
imposing a sentencing enhancement for vulnerable victims, deny-
ing a downward variance by giving significant weight to improper
or irrelevant factors, failing to afford due consideration to his per-
sonal circumstances in favor of the nature of the offense and the
victim impact, and including a special condition of supervision that
was not imposed at sentencing. After thorough review, we affirm.
I.
We review the sentence a district court imposes for “reason-
ableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir.
2008) (quotations omitted). “The application of the vulnerable-vic-
tim [enhancement] is a mixed question of law and fact that [we]
review[] de novo.” United States v. Mathews,
874 F.3d 698, 706 n.4
(11th Cir. 2017).
“The doctrine of invited error is implicated when a party in-
duces or invites the district court into making an error. Where in-
vited error exists, it precludes a court from invoking the plain error
rule and reversing.” United States v. Love,
449 F.3d 1154, 1157
(11th Cir. 2006) (quotations and citation omitted); United States v.
Carpenter,
803 F.3d 1224, 1236–37 (11th Cir. 2015). Simply “failing
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4 Opinion of the Court 22-10505
to object does not trigger the doctrine of invited error.” United
States v. Dortch,
696 F.3d 1104, 1112 (11th Cir. 2012).
Rather, when a party fails to make specific objections at sen-
tencing after the district court gives him an opportunity to do so,
challenges to the sentence on appeal will be reviewed only for plain
error. United States v. Ramirez-Flores,
743 F.3d 816, 821 (11th Cir.
2014); see also United States v. Cavallo,
790 F.3d 1202, 1237 (11th
Cir. 2015) (reviewing for plain error a defendant’s claim, not raised
in district court, that the court impermissibly considered his sex
when sentencing him). To establish plain error, a defendant must
show (1) an error, (2) that is plain, and (3) that affected his substan-
tial rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir.
2007). If the defendant satisfies these conditions, we may exercise
our discretion to recognize the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Id.
“An error is ‘plain’ if controlling precedent from the Su-
preme Court or the Eleventh Circuit establishes that an error has
occurred.” Ramirez-Flores,
743 F.3d at 822. To satisfy the third
condition, the defendant ordinarily must show a reasonable prob-
ability that, but for the error, the outcome of the proceeding would
have been different. Rosales-Mireles v. United States,
138 S. Ct.
1897, 1904–05 (2018). If we would have to speculate as to whether
the result would have been different, the defendant has not met the
burden to show that substantial rights have been affected. United
States v. Rodriguez,
398 F.3d 1291, 1301 (11th Cir. 2005).
II.
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22-10505 Opinion of the Court 5
First, we are unpersuaded by Grossman’s claim that his 87-
month sentence was unreasonable. In reviewing sentences for rea-
sonableness, we perform two steps. Pugh,
515 F.3d at 1190. First,
we “‘ensure that the district court committed no significant proce-
dural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen
sentence -- including an explanation for any deviation from the
Guidelines range.’” Id. (quoting Gall v. United States,
552 U.S. 38,
51 (2007)). 1 The district court is not required to expressly say that
it has considered each of the
18 U.S.C. § 3553(a) factors, so long as
the record reflects the court’s consideration of the § 3553(a) factors.
United States v. Cabezas-Montano,
949 F.3d 567, 609 (11th Cir.
2020). So, an acknowledgment by the district court that it consid-
ered the § 3553(a) factors is sufficient. Turner,
474 F.3d at 1281.
Further, a failure to discuss mitigating evidence does not indicate
1 The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed to reflect the seriousness of the offense, to promote re-
spect for the law, and to provide just punishment for the offense; (3) the need
for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or voca-
tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
tencing Guidelines range; (8) the pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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6 Opinion of the Court 22-10505
that the court “erroneously ‘ignored’ or failed to consider this evi-
dence.” United States v. Amedeo,
487 F.3d 823, 833 (11th Cir.
2007). “[T]he adequacy of a district court’s findings and sentence
explanation is a classic procedural issue, not a substantive one.”
United States v. Irey,
612 F.3d 1160, 1194 (11th Cir. 2010) (en banc).
If we conclude that the district court did not procedurally
err, we consider the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard,” based on the “to-
tality of the circumstances.” Pugh,
515 F.3d at 1190 (quotations
omitted). A court may abuse its discretion if it (1) fails to consider
relevant factors that are due significant weight, (2) gives an im-
proper or irrelevant factor significant weight, or (3) commits a clear
error of judgment by balancing a proper factor unreasonably. Irey,
612 F.3d at 1189. Also, a court’s unjustified reliance on any one §
3553(a) factor may be a symptom of an unreasonable sentence.
United States v. Crisp,
454 F.3d 1285, 1292 (11th Cir. 2006).
However, we have “underscored” that we must give “due
deference” to the district court to consider and weigh the proper
sentencing factors. United States v. Shabazz,
887 F.3d 1204, 1224
(11th Cir. 2018) (quotations omitted). The district court need not
give all the factors equal weight and is given discretion to attach
great weight to one factor over another. United States v.
Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). Further,
“[s]entencing courts may consider both uncharged and acquitted
conduct in determining the appropriate sentence.” United States
v. Maitre,
898 F.3d 1151, 1160 n.6 (11th Cir. 2018) (quotations
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22-10505 Opinion of the Court 7
omitted); see also United States v. Butler,
39 F.4th 1349, 1355 (11th
Cir. 2022) (stating that “a sentencing court may impose an upward
variance based upon uncharged conduct”).
We will vacate a sentence only if we are “left with the defi-
nite 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 dic-
tated by the facts of the case.” Irey,
612 F.3d at 1190 (quotations
omitted). “[A] district court commits a clear error of judgment
when it considers the proper factors but balances them unreasona-
bly.”
Id. at 1189. We will not substitute our own judgment for that
of the sentencing court and will sometimes affirm the district court
even if we would have done something differently because the
question is whether the district court’s decision was “in the ballpark
of permissible outcomes.” Butler, 39 F.4th at 1355 (quotations
omitted). Sentencing judges may rely on their experience and are
given wide latitude in sentencing decisions because of their experi-
ence in handling criminal cases. United States v. Shaw,
560 F.3d
1230, 1238–40 (11th Cir. 2009) (upholding an upward variance
where the defendant argued that his sentenced was influenced by
an erroneous premise or prediction).
We do not apply a presumption of reasonableness to sen-
tences within the guideline range, but we ordinarily expect these
sentences to be reasonable. United States v. Stanley,
739 F.3d 633,
656 (11th Cir. 2014). A sentence imposed well below the statutory
maximum penalty is also an indicator of reasonableness.
Id. The
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8 Opinion of the Court 22-10505
party challenging the sentence bears the burden of establishing that
it is unreasonable based on the record and the § 3553(a) factors.
United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
Here, Grossman has not shown that his sentence was proce-
durally or substantively unreasonable. For starters, Grossman
claims on appeal that the district court erred at sentencing by ap-
plying a four-level enhancement for vulnerable victims, but Gross-
man invited this alleged error in the district court. As the record
reflects, the plea agreement provided that Grossman “should re-
ceive a four-level increase for committing offenses which the De-
fendant knew involved a large number of vulnerable victims.”
When Grossman pled guilty at the plea colloquy, he expressly con-
firmed that he had “read and underst[oo]d” the plea agreement and
“treat[ed] it like a contract.” Thereafter, the vulnerable victim en-
hancement was detailed in Grossman’s PSI, which provided that
“[t]he government and defendant agreed that . . . they will jointly
recommend . . . that the defendant should receive a four-level in-
crease for committing offenses which the defendant knew involved
a large number of vulnerable victims.” Then, at sentencing, the
district court went through the PSI and described the sentencing
enhancements, breaking down the four-level increase at issue in
this way: “[a] victim-related adjustment[,] increase[] two levels
[and] a large number of vulnerable victims, increase two levels.” 2
2 The Guidelines break down the enhancement in the same way. See U.S.S.G.
§ 3A1.1(b) (increasing a defendant’s offense level by two levels if he knew or
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22-10505 Opinion of the Court 9
Not surprisingly, Grossman never lodged any objection to these
enhancements at the plea colloquy or at sentencing.
On this record, Grossman invited any error concerning the
adjustment. See Love,
449 F.3d at 1157; Carpenter,
803 F.3d at
1236–37. Further, Grossman cites no support for the argument he
now makes in his reply brief, that the invited error rule should not
apply because he did not fully comprehend that there was ambigu-
ity in the plea agreement -- a plea agreement that expressly pro-
vided for a four-level vulnerable victim enhancement. As we see
it, Grossman invited any error concerning the vulnerable victim
adjustment so we do not reach the merits of the issue.
Id.
As for Grossman’s claim that the district court abused its dis-
cretion in denying a downward variance by giving significant
weight to improper or irrelevant factors, we disagree. As the rec-
ord reveals, Grossman did not object to his sentence at trial, so we
review whether the district court relied on any allegedly improper
factors for plain error, and we can find none. See Cavallo,
790 F.3d
at 1237. 3 To begin with, under our precedent, the district court
was authorized to consider Grossman’s conduct related to 17
should have known that a victim of his offense was vulnerable and by two
more levels if “the offense involved a large number of vulnerable victims”).
3 Notably, the Supreme Court has expressly declined to address whether spe-
cific substantive reasonableness challenges must be raised below to be pre-
served. Holguin-Hernandez v. United States,
140 S. Ct. 762, 766 (2020).
Therefore, we are bound by our precedent, as applied in Cavallo, that we re-
view these kinds of unpreserved arguments for plain error.
790 F.3d at 1237.
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10 Opinion of the Court 22-10505
counts of conviction that the government had dismissed. See
Maitre,
898 F.3d at 1160 n.6.; Butler, 39 F.4th at 1355. And while
the parties agree that the court misstated how the dismissed counts
affected the guideline range, nothing in the record suggests that the
court believed that Grossman’s guideline range was unduly low.
On the contrary, the court imposed a sentence at the bottom of the
guideline range, not above it. Further, while the court praised
Grossman’s counsel for obtaining an acceptance-of-responsibility
reduction, it never indicated that the reduction was unwarranted.
In any event, it is utterly unclear from the record whether
the dismissed counts and the acceptance-of-responsibility adjust-
ment affected the imposed sentence, if at all. This means that we
are left to speculate as to whether Grossman’s sentence would have
been different had the court not mentioned these factors. For this
reason, Grossman has not met his burden to show that his substan-
tial rights were affected, and the district court did not plainly err.
See Rosales-Mireles,
138 S. Ct. at 1904; Rodriguez, 406 F.3d at 1275.
We are also unpersuaded by Grossman’s claim that the dis-
trict court erred in weighing the context and nature of the offense
and the victim impact more heavily than Grossman’s personal cir-
cumstances. As our case law makes clear, it was well within the
court’s discretion to attach great weight to one factor over another.
See Rosales-Bruno,
789 F.3d at 1254. Further, the court expressly
said that it had considered the § 3553(a) factors and the parties’
statements, and Grossman’s counsel extensively covered his per-
sonal circumstances. See Taylor, 997 F.3d at 1354–55. Plus, it’s
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22-10505 Opinion of the Court 11
worth noting that the 87‑month sentence imposed by the court
was within, and at the bottom of, the advisory guideline range of
87 to 108 months and was 33 months below the lowest statutory
maximum, both favoring the sentence’s reasonableness. See Stan-
ley,
739 F.3d at 656; Rosales-Bruno,
789 F.3d at 1256‑57.
Moreover, we cannot say that the district court erred by
commenting on the victims’ status or suffering; we’ve said that dis-
trict courts are permitted to rely on their experience at sentencing.
See Shaw,
560 F.3d at 1238. And as for his claim that the court
improperly compared Grossman’s sentence to an acquaintance’s
bank robbery sentence, the record instead suggests that the court
mentioned this case simply to show that Grossman would still have
an opportunity to work and be successful after he served his sen-
tence. Accordingly, Grossman has not shown that his sentence was
unreasonable, and we affirm as to this issue.
III.
We also are unpersuaded by Grossman’s claim that a special
condition of supervised release in the written judgment did not
conform with the judgment orally pronounced during the sentenc-
ing hearing. It is well-established that “[w]hen a sentence pro-
nounced orally and unambiguously conflicts with the written order
of judgment, the oral pronouncement governs.” United States v.
Bates,
213 F.3d 1336, 1340 (11th Cir. 2000). However, “[w]hen
there is an ambiguity in the oral sentencing, as opposed to a conflict
between the oral pronouncement and the written judgment, it is
proper to look to the written judgment to ascertain the court’s
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12 Opinion of the Court 22-10505
intentions.” United States v. Purcell,
715 F.2d 561, 563 (11th Cir.
1983). The remedy for a conflict between an orally pronounced
sentence and the written judgment is a limited remand with in-
structions to amend the judgment to conform to the oral pro-
nouncement. United States v. Chavez,
204 F.3d 1305, 1316 (11th
Cir. 2000).
Here, Grossman does not specify which language from the
written judgment he wants the district court to strike, but simply
says that the judgment “contains” a condition that was not imposed
during the sentencing and that “[t]he condition requiring Gross-
man to obtain permission before seeking or incurring new debt”
should be stricken. But there is no support for this claim. Indeed,
at sentencing, the court expressly imposed this condition when it
said that Grossman must comply with a list of special conditions,
including “no new debt restrictions.” And to the extent Grossman
is arguing with the language that he must “first obtain[] written
permission” before seeking or incurring new debt, if anything, this
is less restrictive than the court’s words at sentencing because it
adds the possibility of obtaining new debt with permission. Thus,
because Grossman has failed to demonstrate any actual conflict be-
tween the oral sentencing and the written judgment that would
warrant relief, we affirm as to this issue as well.
AFFIRMED.
