United States v. Annamalai Annamalai ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13002
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANNAMALAI ANNAMALAI,
a.k.a. Dr. Commander Selvam,
a.k.a. Swamiji Sri Selvam Siddhar,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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D.C. Docket No. 1:13-cr-00437-TCB-CMS-1
____________________
Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Following a lengthy trial in 2014, a jury convicted
Annamalai Annamalai of 34 criminal offenses. See United States v.
Annamalai, 939 F.3d 1216, 1222 (11th Cir. 2019) (Annamalai I). On
appeal, we reversed some of the convictions and remanded for
resentencing. Id. at 1225–35, 1238–39. The district court
resentenced Annamalai to 216 months’ imprisonment followed by
five years’ supervised release. In this appeal from his resentencing,
he argues that: (1) the district court erred in failing to conduct a de
novo resentencing; (2) the district court erred in failing to recuse
itself from the resentencing proceedings; and (3) his sentence is
procedurally and substantively unreasonable. After careful review,
we affirm.
I. Background
A. Annamalai’s Trial and Direct Appeal
Annamalai, “a self-proclaimed Hindu priest,” ran the Hindu
Temple and Community Center of Georgia, Inc., in Norcross,
Georgia from 2005 to 2009. Annamalai I, 939 F.3d at 1221. “The
Hindu Temple generated income in part by charging fees for
religious and spiritual products and services, including religious
ceremonies and horoscopes.” Id. “The evidence at trial showed
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that Mr. Annamalai used the Hindu Temple as part of a criminal
scheme to defraud his followers and commit bank fraud.” Id.
Specifically, he made unauthorized transactions on his followers’
credit cards, and then, if they complained, he would cite to the
temple’s “no refund” policy. Id. On other occasions, he “would
publish detailed stories of the followers’ confidential personal
struggles in [the temple’s] magazine.” Id. He also submitted false
documents, altered audio recordings, and other false information
to banks and law enforcement to justify the fraudulent charges. Id.
He “used the fraud proceeds to fund a lavish lifestyle, including
multiple homes and expensive cars.” Id.
The Hindu Temple shut down after it filed for bankruptcy.
Id. at 1221–22. Undeterred, Annamalai started a second temple. Id.
at 1222. A grand jury in the Northern District of Georgia indicted
Annamalai on 34 counts, including conspiracy to commit bank
fraud, bank fraud, filing a false federal income tax return,
conspiracy to commit bankruptcy fraud, bankruptcy fraud, money
laundering, making a false statement in writing, obstruction of
justice, making false statements under oath in a bankruptcy
proceeding, and conspiracy to harbor a fugitive. Id. The case
proceeded to a lengthy 11-day trial, and the jury convicted
Annamalai on all 34 counts. Id. The district court sentenced him
to a total of 327 months’ imprisonment. Id.
On appeal, we reversed Annamalai’s convictions for
bankruptcy fraud (Counts 11–20), conspiracy to commit
bankruptcy fraud (Count 10), money laundering (Counts 21–30),
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and conspiracy to harbor a fugitive (Count 34). Id. at 1228–35. We
also determined that the district court erred in its loss amount
determination related to the bank fraud counts. Id. at 1235–38. We
summarily affirmed several other sentencing enhancements that
Annamalai challenged, including “the enhancement for the
number of victims, the enhancement for abuse of trust, the
enhancement for vulnerable victims, the enhancement for
sophisticated means, [and] the enhancement for role in the
offense.” Id. at 1239 n.5. Because the loss amount affected the
guidelines calculation, we remanded the case for resentencing with
instructions for the district court to set the loss amount “at more
than $70,000 but less than $120,000 under [U.S.S.G.]
§ 2B1.1(b)(1)(E) of the 2013 Sentencing Guidelines.” Id. at 1238–39
& n.5. We also instructed the district court to recalculate
restitution on remand. Id. at 1239 n.5.
B. Annamalai’s Resentencing
On remand, Annamalai argued that he was entitled to a de
novo resentencing and that the guidelines enhancements related to
the number of victims and vulnerable victims should not apply.1
The government argued that because we affirmed the application
of those guidelines enhancements in Annamalai I, those
determinations were binding on the district court under the law of
the case doctrine. Following a hearing on the scope of
1 Under his proposed revised calculations, his advisory guidelines range would
be 63 to 78 months’ imprisonment.
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resentencing, the district court concluded that, based on our
decision in Annamalai I, Annamalai was not entitled to a de novo
resentencing. Rather, it determined that our mandate on remand
was limited, and that it was simply to adjust the loss amount as
directed, hear arguments regarding the 18 U.S.C. § 3553(a)
sentencing factors, issue a new sentence, and recalculate
restitution.
At the resentencing hearing, the district court first stated for
the record that we correctly determined that the temple operation
was not “entirely fraudulent,” and that its prior conclusion
otherwise was incorrect. Nevertheless, the court noted that there
was still a “mountain of fraud” in the case based on Annamalai’s
convictions on the eight counts of bank fraud alone. The district
court then determined that with the adjusted loss amount,
Annamalai’s base offense level was 33, which produced an advisory
guidelines range of 135 to 168 months’ imprisonment. Annamalai
renewed his objections to the calculation, but he acknowledged
that in light of the district court’s prior rulings, the calculation was
correct.
The government requested an upward variance sentence of
216 months’ imprisonment and provided extensive argument as to
why the § 3553(a) sentencing factors supported an upward
variance. Specifically, the government argued that three
overarching reasons warranted the requested sentence. First, the
government pointed to the nature and circumstances of the
offense—Annamalai took advantage of people who came to him
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for help and counseling, and several victims testified during the first
sentencing hearing that Annamalai threatened them when they
confronted him about the stolen money. Second, the government
pointed to Annamalai’s personal history and characteristics—he
had a history of intimidating and harassing witnesses, as evidenced
by threatening letters he sent following his trial, numerous
frivolous and malicious lawsuits, and involuntary bankruptcy
petitions, that he filed against witnesses after his convictions. The
government noted that Annamalai also impersonated a victim and
corresponded with a Special Agent investigating the case, and he
made false statements during his bankruptcy proceedings. And he
demonstrated a lack of remorse. Third, the government argued
that the requested sentence reflected the seriousness of the offense,
promoted respect for the law, protected the public, provided
adequate deterrence, and provided Annamalai an opportunity to
receive much needed mental health treatment.
On the other hand, Annamalai’s counsel requested a 63-to-
78-month sentence, which with credit for the time served would
result in his release. His counsel maintained that the § 3553(a)
factors supported a sentence in this range given (1) the nature of
the offense—Annamalai only kept “a tiny fraction” of the money
the temple received, and the church was not a total fraud;2
2 He also reiterated his objection to the two guidelines enhancements related
to the number of victims—which we affirmed on appeal—arguing that the
number of victims who suffered an actual loss was substantially lower because
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(2) Annamalai’s mental and physical health conditions; (3) his
troublesome family history; (4) that several years had passed since
Annamalai filed the allegedly frivolous lawsuits against witnesses
and most of the time the defendants in those suits were never
served; (5) he had low scores on recidivism assessments; and (6) he
would be deported upon completion of his sentence, which would
protect the public against future crimes. Annamalai also made a
statement to the court and apologized for his actions. He
acknowledged that he had filed numerous lawsuits against
individuals related to the case because he was mad, but he
apologized, and noted that he had “100 percent backed off” over
the last two years. He emphasized that he was in “extremely bad
health” and begged the court for mercy.
The district court then discussed the § 3553(a) factors. In
particular, the district court highlighted details of the underlying
scheme—that Annamalai held “himself out as a high priest” and
used his temples “as mere vessels through which he moved cash
for his benefit”; “used the victims’ vulnerabilities against them by
manipulating, threatening, blackmailing, and defrauding them”;
used victims’ signatures from packages for “fraudulent purposes”;
and obstructed justice to make it appear as though the victims had
agreed to the unauthorized charges. The district court also noted
that following his sentencing, he sent threatening letters to victims
many of the victims received the money back from their credit card
companies.
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and filed numerous frivolous and vindictive lawsuits and
involuntary bankruptcy petitions against victims, witnesses, and
others. The district court noted that:
In the initial sentencing I stated that Mr. Annamalai
used false lawsuits to inflict pain and extort payment.
He enjoyed preying on weak and vulnerable people.
He, as a so-called man of the cloth, is a fraud. He is
heartless, and ruthless, he is not a holy man.[ 3] I find
that he is a veritable sociopath, a manipulative liar,
swearing out multiple outrageous false affidavits, and
repeatedly testifying falsely.
At the original sentencing I stated that this was the
worst obstruction of justice I had seen. And despite
that fact, the defendant was unrepentant and
incorrigible. None of this has changed. In fact, his
just-described behavior following his original
sentencing solidifies, if not intensifies, my views. I
can almost hear the cries of the victims who we heard
from for two weeks and the defendant treated
mercilessly. He is not entitled to mercy now, nor
would mercy be just.
3 Later, after the district court announced the sentence, Annamalai’s counsel
objected to the district court’s statement that Annamalai was not a holy man,
and the court clarified that whether Annamalai was a holy man was “not for
[the court] to decide” and the court did not care whether Annamalai was a
high priest or not.
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I’ve read the victim impact statements, and many of
them tell of the defendant’s repeated threats. One of
the victims testified at trial how the defendant
responded when she resisted his misconduct. This is
the one to whom Mr. Annamalai said, quote, once
you are in my clutches, only I can release you, closed
quote. This man is the opposite of remorseful. He
committed crimes to cover up his fraud, and he
intimidated witnesses, and obstructed justice. And he
has filed scores of lengthy and frivolous motions and
other documents in the case swelling the docket to
almost a thousand filings. And from these, and
everything else in the case, the great weight of other
evidence, I can say colloquially he doesn’t get it. The
bottom line is that this man is evil.
(emphasis in original). Turning to the nature and circumstances of
the offenses, the district court noted that Annamalai led “a highly-
calculated scheme” that involved “preying on particularly
vulnerable victims”—an act for which he had not shown genuine
remorse. Regarding Annamalai’s personal history and
characteristics, the court noted that the psychologist on whom
Annamalai relied found that Annamalai “exaggerated his mental
illness symptoms, and that he [was] an unreliable historian who has
a history of exaggeration, deceit, and manipulation” and
“demonstrated . . . severe character pathology.” The district court
explained that “[o]nly a lengthy term of incarceration” would serve
to promote respect for the law, provide just punishment, reflect the
seriousness of the offense, protect the public from future crimes by
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Annamalai, and provide him with needed medical care. The court
noted that its determination was “the product of careful, solemn,
and prolonged deliberation.” The court stated that “[w]hile my
contempt for Mr. Annamalai is without affectation, I have had
ample opportunity for sedate reflection to consider what the
sentence should be. It is in no way intended to punish the
defendant for appealing the judgment of conviction. He got it right
on appeal.”
Annamalai’s counsel moved for recusal of the district court
judge, arguing that recusal was warranted based on the judge’s
contempt for Annamalai and because the court’s comments did not
“reflect the reality or reflect [this Court’s] opinion” on direct
appeal. The district court denied the motion. However, the court
clarified its contempt comment, explaining that:
I do hold him in contempt. Not in contempt of court
. . . , but [for] what he did to these victims. What he
did to these victims, I am offended by. And part of
my job here is to vindicate the interest of the public.
And there is nothing wrong with a trial judge being
irritated at a criminal defendant who has caused
untold amounts of misery to innocent victims. That
is what I mean when I say I have this contempt for
him.
The district court then imposed a sentence of 216 months’
imprisonment, which was an upward variance from the guidelines
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range, to be followed by five years’ supervised release. Annamalai
timely appealed.
II. Discussion
A. Whether de novo resentencing was required
Annamalai argues that the district court erred and failed to
comply with our mandate when it declined to conduct a de novo
resentencing proceeding. Relying heavily on our decision in
United States v. Stinson, 97 F.3d 466 (11th Cir. 1996), Annamalai
argues that when a criminal sentence is vacated, the entire
sentencing package (including any sentencing enhancements) is
voided in its entirety, and the default result is that the defendant is
to be resentenced de novo.
Generally, “when a sentence is vacated and the case is
remanded for resentencing, the district court is free to reconstruct
the sentence utilizing any of the sentencing components.” Stinson,
97 F.3d at 469. If we remanded on a limited issue, however, our
mandate restricts the range of issues the district court may consider
on resentencing. United States v. Tamayo, 80 F.3d 1514, 1519–20
(11th Cir. 1996). The “district court when acting under an appellate
court’s mandate, cannot vary it . . . or give any other or further
relief; or review it, even for apparent error, upon a matter decided
on appeal; or intermeddle with it, further than to settle so much as
has been remanded.” Id. at 1520 (quotations omitted). “The
mandate rule is simply an application of the law of the case doctrine
to a specific set of facts.” Id. (quotations omitted). Furthermore,
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“[b]ecause it is in the interest of judicial economy for the district
court not to redo that which had been done correctly at the first
sentencing hearing, we have held that there is nothing improper in
the district court’s limiting the scope of a resentencing
proceeding.” Id. (alterations adopted) (quotations omitted).
Based on our decision in Annamalai I, the district court
determined correctly that our mandate on remand was limited.
Annamalai raised a number of challenges related to his sentencing
and the guidelines’ calculations in Annamalai I. Specifically, he
argued, among other grounds, that (1) the district court erred
in determining that the loss amount was greater than $400,000 but
less than $1,000,000, which resulted in a 14-level guidelines
enhancement; (2) the district court erred in applying a four-level
enhancement based on a finding that there were more than 50
victims of the bank fraud; (3) the district court erred in applying a
two-level vulnerable victims enhancement; (4) his 327-month
sentence was substantively unreasonable; and (5) the court erred in
basing restitution on the total loss. Annamalai I, 939 F.3d at 1236,
1239 n.5.
We concluded that the evidence did not support the district
court’s determination as to the loss amount because the
government’s methodology for statistical extrapolation was
flawed. Id. at 1236–38. Thus, we held that resentencing was
required and we instructed the district court on remand to set the
loss amount “at more than $70,000 but less than $120,000 under
[U.S.S.G.] § 2B1.1(b)(1)(E) of the 2013 Sentencing Guidelines.”
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Id. at 1238. However, we “summarily affirm[ed]” among other
enhancements “the enhancement for the number of victims . . .
[and] the enhancement for vulnerable victims.” Id. at 1239 n.5. 4
In other words, we did not vacate the entire sentencing
package in Annamalai I. Rather, we remanded with express
instructions that the district court set the loss amount at a specific
amount and resentence Annamalai. Id. at 1239 & n.5. We affirmed
a variety of other sentencing enhancements, and those rulings were
binding as law of the case on the district court. United States v.
Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (“The law of the case
doctrine bars relitigation of issues that were decided, either
explicitly or by necessary implication, in an earlier appeal of the
same case.”); see also United States v. Amedeo, 487 F.3d 823, 830
(11th Cir. 2007) (“The law of the case doctrine (and, by implication,
the mandate rule) applies to findings made under the Sentencing
Guidelines.”);Venn v. St. Paul Fire & Marine Ins. Co., 99 F.3d 1058,
1063 (11th Cir. 1996) (“Under the law of the case doctrine, both the
district court and the appellate court are generally bound by a prior
appellate decision of the same case.”). Accordingly, contrary to
Annamalai’s contention, the district court was not free to revisit
the sentencing enhancements that we affirmed in Annamalai I. See
United States v. Stein, 964 F.3d 1313, 1324 (11th Cir. 2020) (holding,
4 Because we were remanding for resentencing, we declined to address the
substantive reasonableness of his sentence or the restitution issue, and we
instructed the district court to recalculate restitution on remand. Annamalai
I, 939 F.3d at 1239 n.5.
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under similar circumstances to those present in Annamalai’s case,
that the mandate was limited and the district court determined
correctly that it could not reconsider the forfeiture calculation);
United States v. Bordon, 421 F.3d 1202, 1207 (11th Cir. 2005)
(declining to consider defendant’s claim that the district court
improperly calculated the amount of loss “because this Court
previously reviewed and affirmed the calculation” in the
defendant’s initial direct appeal).
B. Recusal from resentencing
Annamalai argues that the district court erred in failing to
recuse itself from his resentencing.
Section 455 of Title 28 of the United States Code sets forth
two conditions for recusal. 5 28 U.S.C. § 455(a)–(b). First,
subsection (a) provides that “[a]ny justice, judge, or magistrate
judge of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” Id.§ 455(a). The question for purposes of § 455(a) “is whether an
objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would
entertain a significant doubt about the judge’s impartiality, and any
5 A defendant can also move for recusal of a judge based on bias or prejudice
by “mak[ing] and fil[ing] a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either against him
or in favor of any adverse party.” 28 U.S.C. § 144. No such affidavit was filed
in Annamalai’s case. Therefore, we will not discuss recusal under § 144.
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doubts must be resolved in favor of recusal.” United States v. Patti,
337 F.3d 1317, 1321 (11th Cir. 2003) (internal citations and
quotations omitted).
Second, under subsection (b), a judge must recuse himself
“[w]here he has a personal bias or prejudice concerning a
party . . . .” 28 U.S.C. § 455(b)(1); see also Patti, 337 F.3d at 1321(explaining that recusal under subsection (b) is mandatory once it
is established that any of the enumerated circumstances in (b)
exist). “The bias or prejudice must be personal and extrajudicial; it
must derive from something other than that which the judge
learned by participating in the case.” Amedeo, 487 F.3d at 828(quotations omitted).
Importantly, “opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current . . .
[or] prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 555 (1994). “Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” Id.; see also United
States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (“[T]he judge’s
conduct during the proceedings should not, except in the ‘rarest of
circumstances’ form the sole basis for recusal under § 455(a).”
(quoting Liteky, 510 U.S. at 555)). “We review a judge’s decision
not to recuse for an abuse of discretion.” Amedeo, 487 F.3d at 828.
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Annamalai argues that recusal was necessary under § 455(a)
because an objective observer with full knowledge of the facts of
the case would harbor a significant doubt about the trial judge’s
impartiality based on the judge’s statements during the
resentencing hearing.6 In support, he points to the trial judge’s
contempt comment, comments that were negative concerning
Annamalai’s character, and statements that he argues implied
Annamalai was not a “man of the cloth” and that the temple was a
total fraud.
We have reviewed the comments Annamalai highlights.
While at times the judge was unwisely hostile toward Annamalai
and disapproving of his character, when considered in context, the
comments did not display a deep-seated antagonism that would
make fair judgment impossible. Rather, the comments reflect
6 In its response brief, the government argued that the district court’s
statements did not reflect bias, but Annamalai argues that whether the district
court was biased is not the correct standard. Rather, he argues that the only
relevant standard was “whether an objective, disinterested, lay observer fully
informed of the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality,” and that
“recusal under 28 U.S.C. § 455(a) does not require that the district court harbor
actual bias against the defendant.” The government’s apparent confusion
stems from Annamalai’s initial brief in which he referred frequently to the
judge’s “bias.” Regardless, it is clear that “at issue in the present case is an
aspect of ‘partiality’ already addressed in [§ 455(b)], bias or prejudice.” Liteky,
510 U.S. at 553 n.2. And our task is to determine whether there is an “objective
appearance” of such bias or prejudice—i.e., “an objective appearance of
improper partiality.” Id.USCA11 Case: 21-13002 Document: 35-1 Date Filed: 01/19/2023 Page: 17 of 26
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“expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and
women, even after having been confirmed as federal judges,
sometimes display.” Liteky, 510 U.S. at 555–56; see also id. at 550–
51 (“The judge who presides at a trial may, upon completion of the
evidence, be exceedingly ill disposed towards the defendant, who
has been shown to be a thoroughly reprehensible person. But the
judge is not thereby recusable for bias or prejudice,” because his
opinion is the product of information acquired during the course
of the proceedings.). Furthermore, all of the comments were based
on information that the trial judge learned during the course of the
underlying proceedings (which spanned several years). And
“opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current . . . [or] prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Id. at 555; see also In re
City of Milwaukee, 788 F.3d 717, 720 (7th Cir. 2015) (“Rarely will a
judge’s comments show such favoritism or antagonism unless
those comments reflect at least some reliance on an ‘extrajudicial
source.’”).
Indeed, other circuits have concluded similarly that recusal
was not warranted based on similar comments to those made
during Annamalai’s resentencing. See United States v. McTiernan,
695 F.3d 882, 891–93 (9th Cir. 2012) (holding that recusal was not
warranted based on trial judge’s repeated statements that the
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defendant was a liar and was “willing to lie whenever it suits his
purpose”); United States v. Pearson, 203 F.3d 1243, 1252, 1277–78
(10th Cir. 2000) (holding recusal not warranted based on trial
judge’s remarks about the defendant’s character, including that the
defendant was “repulsive,” “a punk, first class,” “a manipulator . . .
[who] runs whores . . . [and] lives off . . . women,” “a predator,”
“someone who ‘has [n]ever done anything decent in his life’ and
‘has nothing going for him,’” and “a poster boy for a life sentence
in a federal penitentiary”). Accordingly, we conclude that the
district court did not abuse its discretion in denying Annamalai’s
motion for recusal.7
7 Annamalai argues that recusal was also necessary because the trial judge
failed to comply with the “spirit and express mandate” of this Court because
the trial judge (1) stated that Annamalai “a so-called man of the cloth” was not
a holy man, despite our statement in Annamalai I that it is not for the
government to opine on religious qualifications; (2) made comments that
indicated that the judge continued to believe that the temple was a total fraud,
despite our determination in Annamalai I that the temple was not a total fraud;
and (3) in failing to conduct a de novo resentencing. First, Annamalai takes
the trial judge’s statements out of context. Although the trial judge stated that
Annamalai was not a holy man, he clarified that whether Annamalai was a
holy man was “not for [the court] to decide” and the court did not care
whether Annamalai was a high priest or not. Second, the trial judge also
acknowledged that Annamalai’s operation was not a total fraud, but noted
correctly that, even though the operation “was [not] entirely fraudulent,”
there was still “a mountain of fraud left standing” based on the eight counts of
substantive fraud that we affirmed on direct appeal. Thus, an objective
observer with full knowledge of the facts of this case would not entertain
serious doubts about the trial judge’s impartiality based on these statements.
Third, as we explained above, the district court correctly declined to conduct
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C. The procedural and substantive reasonableness of
Annamalai’s sentence
Annamalai argues that his above guidelines 216-month
sentence is procedurally and substantively unreasonable. He
argues that his sentence is procedurally unreasonable because it is
based on clearly erroneous facts that we rejected in Annamalai I.
Similarly, he maintains that his sentence is substantively
unreasonable because (1) there was no justification for the upward
variance, and the district court (2) relied on clearly erroneous facts
in determining the sentence, (3) allowed animosity toward
Annamalai to influence its decision, and (4) failed to give proper
consideration to the guidelines range.
We review a sentence for both procedural and substantive
reasonableness under a deferential abuse of discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). The burden rests
on the party challenging the sentence to show “that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and
the substantial deference afforded sentencing courts.” United
States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
In reviewing a sentence for procedural reasonableness, we
“ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to
a de novo resentencing on remand, and, therefore, there is no basis for recusal
on that ground.
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consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.
2008) (quoting Gall, 552 U.S. at 51).
After ensuring that a sentence is procedurally sound, we
then consider the substantive reasonableness of the sentence in
light of the totality of the circumstances, including the extent of
any variance from the guidelines range. See Gall, 552 U.S. at 51.
The district court must issue a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” of
§ 3553(a)(2), which include the need for a sentence to reflect the
seriousness of the offense, promote respect for the law, provide just
punishment, deter criminal conduct, and protect the public from
future criminal conduct. Id. at 50 n.6; 18 U.S.C. § 3553(a)(2). The
court must also consider the following factors: the nature and
circumstances of the offense and the history and characteristics of
the defendant; the kinds of sentences available; the advisory
Sentencing Guidelines and pertinent policy statements of the
Sentencing Commission; the need to avoid unwarranted
sentencing disparities; and the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1), (3)–(7). “[T]he district court need
only ‘acknowledge’ that it considered the § 3553(a) factors, and
need not discuss each of these factors . . . .” Amedeo, 487 F.3d at
833 (quotation and internal citation omitted). Importantly, the
weight given to a particular § 3553(a) factor “is committed to the
sound discretion of the district court,” and it is not required to give
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“equal weight” to the § 3553(a) factors. Rosales-Bruno, 789 F.3d at
1254 (quotation omitted). “A district court abuses its discretion
when it (1) fails to consider 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.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc).
Extraordinary justification or “rigid mathematical
formula[s]” are not required for a sentence outside the guidelines
range, but the district court should explain why the variance is
appropriate and the “justification for the variance must be
sufficiently compelling to support the degree of the variance.” Id.at 1186–87 (quotations omitted). We will “vacate the sentence if,
but 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.” Id.
at 1190 (quotation omitted).
Annamalai argues that his sentence is procedurally
unreasonable because it is based on clearly erroneous facts that we
rejected in Annamalai I. Specifically, he points to statements that
the district court made that he claims question whether he was a
Hindu priest and imply that the temple operation was a total fraud.
He maintains that the district court erred in relying on these factors
when determining his sentence because in Annamalai I we rejected
the contention that the entire temple operation was a total fraud,
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and we also noted that it was not for the “government to pass on
religious qualifications.” See Annamalai I, 939 F.3d at 1225.
Annamalai takes the district court’s statements out of
context, and a review of the record confirms that the district court
did not base the sentence on clearly erroneous facts. At the
resentencing hearing, the district court stated:
The over-arching theme of Mr. Annamalai’s shocking
misconduct involved his holding himself out as a high
priest to victims, registering his temples as nonprofit
corporations . . . and seeking payments from victims
with reference to donations to the temple, building
new temples, and deducting payments to him as
charitable contributions for tax purposes, yet Mr.
Annamalai used the temples as mere vessels though
which he moved cash for his benefit. He held or
controlled over 40 bank accounts in the names of
himself, his wife, various temples among which he
moved money without regard for the source. He
used marketing materials to identify and deceive
individuals most susceptible to his strategians, falsely
advertising that he would assist in marital, family,
health, and legal problems. He then used the victims’
vulnerabilities against them by manipulating,
threatening, blackmailing, and defrauding them. He
obtained victims’ signatures from packages he
arranged to have delivered to them, and then used
those signatures for fraudulent purposes.
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When considered in context, it is clear that the district court was
not questioning whether Annamalai was a high priest or basing its
sentence on that improper factor. 8 Rather, the court was
summarizing the nature of the offense, which is a § 3553(a) factor
that the court must consider, and its summary of the offense is
consistent with our findings in Annamalai I that Annamalai used
his position as a religious figure to prey on his victims. 939 F.3d at
1224 (holding that the “description of Mr. Annamalai and his
temple as ‘a scam’ was a fair comment on the evidence,” and noting
that Annamalai was prosecuted for “a scheme in which he abused
his position as a Hindu priest by, among other things, causing his
followers’ credit cards to be charged in excess of agreed amounts
and without authorization, and submitting false documents to
financial institutions to substantiate the unauthorized charges”).
Furthermore, a review of the record confirms that the
district court did not base the sentence on the improper conclusion
that the temple operation was a total fraud. The district court
stated expressly at the resentencing hearing that that the operation
was not a total fraud. However, as the district court correctly
noted, even though the operation “was [not] entirely fraudulent,”
there was still “a mountain of fraud left standing” based on the
eight counts of substantive bank fraud that we affirmed on direct
8 In fact, the district court later clarified that whether Annamalai was a holy
man was “not for [the court] to decide” and the court did not “care” whether
Annamalai was a high priest or not.
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appeal. 9 Thus, the district court’s comment was a fair comment
on the evidence, and the district court did not base the sentence on
an improper factor. 10 Accordingly, we conclude that the district
court did not commit any procedural error.
Turning to the substantive reasonableness of the sentence,
we conclude that Annamalai’s 216-month above guidelines
sentence is substantively reasonable. Contrary to Annamalai’s
claim, the record demonstrates that the district court gave proper
consideration to the guidelines range of 135 to 168 months’
imprisonment, but it determined that the government’s requested
upward variance to 216 months’ imprisonment was appropriate
given the § 3553(a) factors. There is no indication that any alleged
animosity toward Annamalai affected the court’s decision. Rather,
the record demonstrates that the sentence was based solely on the
§ 3553(a) factors, including Annamalai’s personal history and
characteristics and the nature and circumstances of the offense.
9 We reject Annamalai’s contention that there was not a “mountain of fraud”
because “$12 million . . . came into the temple,” and we held in Annamalai I
that the government proved approximately $100,000 in loss amount—
meaning that Annamalai received “only [0].8% of the temple’s proceeds.”
First, as a matter of record, the temple received $10 million, not $12 million.
Annamalai I, 939 F.3d at 1236. Second, regardless of the loss amount, the
record supports that there was substantial fraud in this case that spanned a
number of years and involved numerous victims.
10 Although Annamalai also argues that his sentence is substantively
unreasonable because the district court relied on these allegedly improper
factors, this argument necessarily fails for the same reasons discussed above.
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The district court’s stated reasons for the upward variance are
“sufficiently compelling to support the degree of the variance.”
Irey, 612 F.3d at 1187 (quotations omitted). As the district court
noted, Annamalai was the leader of a “highly-calculated scheme”
that involved preying on “vulnerable victims through fraud,
blackmail, and defamation”—a crime for which he demonstrated
no remorse. And Annamalai took actions following the first
sentencing to continue to harass witnesses and people who stood
up to him.11
Furthermore, the district court made clear that the chosen
sentence was “the product of careful, solemn, and prolonged
deliberation,” and that the upward variance was necessary to
achieve the sentencing goals of general and specific deterrence and
to protect the public—§ 3553(a) factors the court is directed to
consider. Moreover, another indicator of the substantive
reasonableness of the sentence is that Annamalai’s sentence is well
below the 30-year statutory maximum for each of the eight bank
fraud counts. See United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008) (explaining that a sentence that is below the
statutory maximum is an indicator of reasonableness).
11 Annamalai repeatedly emphasizes that many of the individuals he initiated
lawsuits against following his convictions were not served with those actions,
but whether they were served is irrelevant. The fact remains that Annamalai
took actions that were intended to harass and intimidate witness, and that type
of action is a legitimate factor the district court may consider under § 3553(a)
when determining the appropriate sentence.
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Accordingly, given the totality of the circumstances, we conclude
that the sentence is substantively reasonable.
III. Conclusion
Annamalai is not entitled to relief on any of his claims, and
we affirm his sentence.
AFFIRMED.