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 2009-03

United States v. Stone , 319 F. App'x 855 ( 2009 )


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  •                                                            [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT            FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 08-14932 & 08-14933           MARCH 19, 2009
Non-Argument Calendar            THOMAS K. KAHN
CLERK
________________________
D. C. Docket Nos. 07-00228-CR-4, 07-00239-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTINA STONE,
a.k.a. Big Baby,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(March 19, 2009)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Christina Stone appeals her 87-month sentence for conspiracy to make,
possess, and utter counterfeit securities of the United States and corporate
organizations, in violation of
    18 U.S.C. § 371
    . Stone contends that the district
court erred by increasing her sentence by four levels based on her leadership role in
the offense. She argues that, because she did not admit the facts upon which this
increase was based and the facts were not found by a jury, the imposition of a four-
level increase violated United States v. Booker,
    543 U.S. 220
    ,
    125 S. Ct. 738
    (2005). Stone also contends that the district court imposed a sentence “greater than
necessary” by not granting her a downward departure on the basis of her health
condition, family responsibilities, and alleged acceptance of responsibility.
We review the district court’s interpretation of the Guidelines de novo.
United States v. Valnor,
    451 F.3d 744
    , 749-50 (11th Cir. 2006). We review the
district court’s factual findings for clear error.
    Id.
       We review the substantive
reasonableness of a sentence for abuse of discretion, taking into account the totality
of the circumstances. United States v. Livesay,
    525 F.3d 1081
    , 1090 (11th Cir.
2008). “Review for reasonableness is deferential.” United States v. Talley,
    431 F.3d 784
    , 788 (11th Cir. 2005) (per curiam).
In Booker, the Supreme Court (1) held that sentence enhancements based
solely on judicial fact-finding pursuant to the mandatory Sentencing Guidelines
violate the Sixth Amendment and (2) excised the provisions of the Sentencing
2
Reform Act that made the guidelines mandatory, thereby effectively rendering the
Sentencing Guidelines advisory only. Booker, 543 U.S. at 233-35, 259, 125 S. Ct.
at 749-51, 764. “When the district court applies the Guidelines in an advisory
manner, nothing in Booker prohibits district courts from making, under a
preponderance-of-the-evidence standard, additional factual findings that go beyond
a defendant’s admissions.” United States v. Smith,
    480 F.3d 1277
    , 1281 (11th Cir.
2007), cert. denied,
    128 S. Ct. 175
     (2007); see also United States v. Rodriguez,
    398 F.3d 1291
    , 1300 (11th Cir. 2005), cert. denied,
    125 S. Ct. 2935
     (recognizing that
“the use of extra-verdict enhancements in a non-mandatory guidelines system is
not unconstitutional”). We have also held that “a district court may enhance a
sentence based upon judicial fact-finding provided that its findings do not increase
the sentence beyond the statutory maximum authorized by facts determined in a
guilty plea or jury verdict.” United States v. Dean,
    487 F.3d 840
    , 854 (11th Cir.
2007) (per curiam), cert. denied,
    128 S. Ct. 1444
     (2008).
Furthermore, “[w]e lack jurisdiction to review a district court’s decision to
deny a downward departure unless the district court incorrectly believed that it
lacked authority to grant the departure.” United States v. Dudley,
    463 F.3d 1221
    ,
1228 (11th Cir. 2006) (per curiam). The district court is not required to state on
the record whether it believed it had authority to depart below the Guidelines.
    Id.
    3
Instead, “‘when nothing in the record indicates otherwise, we assume the
sentencing court understood it had authority to depart downward.’”
    Id.
     (quoting
United States v. Chase,
    174 F.3d 1193
    , 1195 (11th Cir. 1999)).
Here, Stone’s sentence did not exceed the applicable statutory maximum
penalty, and the district court treated the Sentencing Guidelines as advisory. The
district court was entitled to enhance her sentence based on findings of fact it made
by a preponderance of the evidence. Additionally, because the district court
indicated that it knew it had the authority to depart downward, we lack jurisdiction
to review the district court’s decision not to depart downward.
CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm.
AFFIRMED.
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