United States v. David Lee Mitchell ( 2017 )

Case: 16-13041 Date Filed: 05/09/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13041
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00064-TJC-JBT-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE MITCHELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 9, 2016)
Before JULIE CARNES, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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David Mitchell appeals his 120-month total sentence, imposed above the
Guideline range, after pleading guilty to aiding and abetting attempted bank fraud,
in violation of 18 U.S.C. §§ 1344(2) and 2, aiding and abetting aggravated identity
theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2, and aiding and abetting the
possession of counterfeit securities, in violation of 18 U.S.C. §§ 513(a) and 2. On
appeal, Mitchell argues that the sentence was procedurally and substantively
unreasonable. After review, 1 we affirm.
I. DISCUSSION
We briefly summarize the facts recounted by the district court when it
determined Mitchell’s sentence. Mitchell, now fifty-six years old, first became
involved in criminal activity in 1982, when he was convicted of perjury in official
proceedings. His presentence investigation report lists twenty-six other
convictions since then, including battery, burglary, grand theft, and multiple
convictions for forgery, uttering forged instruments, and executing fictitious
checks. He was convicted of passing stolen checks in 1988, the first of seventeen
convictions for similar offenses, committed steadily over the years until his most
recent in 2011. The district court observed that none of these convictions appeared
to deter Mitchell from returning to the same conduct each time.
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We review the reasonableness of a sentence under the deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Irey, 612 F.3d 1160,
1188–89 (11th Cir. 2010) (en banc).
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“When reviewing for procedural reasonableness, we ensure that the district
court: (1) properly calculated the Guidelines range; (2) treated the Guidelines as
advisory; (3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a
sentence based on clearly erroneous facts; and (5) adequately explained the chosen
sentence.” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010).
Mitchell bears the burden of showing his sentence is procedurally unreasonable,
United States v. De La Cruz Suarez, 601 F.3d 1202, 1223 (11th Cir. 2010), and he
takes issue only with the second factor listed above, contending the district court
failed to give the Guidelines range due consideration, resulting in the Guidelines
carrying effectively no weight at all. It is true that even though it is not bound by
the Guidelines, “a sentencing court may not give them so little consideration that it
amounts to not giving any real weight to the Guidelines range in imposing the
sentence.” United States v. Irey, 612 F.3d 1160, 1218 (11th Cir. 2010) (en banc)
(quotation omitted). But here, the district court thoroughly explained its sentence,
touching on each of the § 3553(a) factors, and expressing its conviction that the
Guidelines sentence was not sufficient to achieve those purposes. Indeed, the court
specifically and extensively explained why the Guidelines result was inappropriate
in this case. The court was entitled to place great weight on Mitchell’s criminal
history and the need for general and specific deterrence to protect the public,
noting that Mitchell had been committing crimes for decades, including multiple
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instances of the same fraudulent activity resulting in the present guilty plea. See 18
U.S.C. § 3553(a)(1), (2); see also United States v. Williams, 526 F.3d 1312, 1322–
23 (11th Cir. 2008) (holding a sentence to be reasonable where the sentencing
court explained why it attached great weight to one § 3553(a) factor). There was
no procedural error.
Nor was Mitchell’s sentence substantively unreasonable. Irey, 612 F.3d at
1189 (“A district court abuses its discretion when it (1) fails to afford consideration
to relevant factors that were due significant weight, (2) gives significant weight to
an improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” (quotation omitted)). It is true that “[a] major
variance does require a more significant justification than a minor one—the
requirement is that the justification be sufficiently compelling to support the degree
of variance.” Id. at 1198 (quotation omitted). However, the court explicitly and
comprehensively considered all of the relevant factors in making its decision. That
Mitchell’s conviction was for an ordinary, low-level economic crime is not
dispositive; the court was entitled to place comparatively more weight on the fact
that these violations were part of a much broader and continuing pattern spanning
decades. Williams, 526 F.3d at 1322–23. The resulting sentence was below the
thirty-year statutory maximum Mitchell could have received, and we have upheld
variances of comparable magnitude. See United States v. Gonzalez, 550 F.3d
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1319, 1324 (11th Cir. 2008) (holding that a sentence under the maximum statutory
sentence available under law is an indicator of reasonableness); United States v.
Rosales-Bruno, 789 F.3d 1249, 1256–57 (11th Cir. 2015) (upholding sentence
more than three times as long as the top of the Guidelines range); United States v.
Early, 686 F.3d 1219, 1221–23 (11th Cir. 2012) (upholding sentence 113 months
above the Guidelines range). The district court’s thorough and forthright
discussion of the § 3553(a) factors in sentencing Mitchell does not leave a “definite
and firm conviction that the district court committed a clear error of judgment.”
Irey, 612 F.3d at 1190.
II. CONCLUSION
For the foregoing reasons, we affirm Mitchell’s sentence.
AFFIRMED.
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