United States v. Maria Baksh , 477 F. App'x 680 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-16084 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 30, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cr-20061-JLK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARIA BAKSH,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 30, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Maria Baksh appeals her 24-month sentence, imposed after she pleaded
guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 and
1344. After a thorough review of the record, we affirm.
Baksh was indicted for conspiracy to commit bank fraud and two counts of
bank fraud in connection with the submission of false documents used to obtain
commercial lines of credit (CLOC) from Wells Fargo Bank. Baksh pleaded guilty
to the conspiracy count1 and admitted that she agreed to fraudulently obtain
CLOCs totaling about $870,000 from Wells Fargo in the name of a non-existent
business and then used the funds for personal gain.
The probation officer calculated the advisory guideline range as 24 to 30
months given the amount of money involved and Baksh’s acceptance of
responsibility. See U.S.S.G. §§ 2B1.1(a)(2), (b)(1)(H), 3E1.1. Baksh did not
object to the calculations, but advised the court that her involvement with the
fraud and a related Ponzi scheme, for which she was not charged, were minimal.2
She denied any knowledge of, or involvement in, the Ponzi scheme and stated that
her involvement in the conspiracy was the result of her complete trust in her CPA,
co-conspirator Berta Sanders. She requested a downward variance and asked the
1
Under the terms of the agreement, neither party could request a sentencing departure,
but could request a variance under 18 U.S.C. § 3553(a).
2
Many of the codefendants used the funds obtained from the bank fraud to invest in the
Ponzi scheme. Baksh did not.
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court to impose a sentence of supervised release with home detention based on her
history and characteristics, her minimal role in the fraud, and because it was
necessary to avoid a sentencing disparity. The government repeatedly stated that
it recommended a sentence at the low end of the guideline range, but that it could
understand how a variance could be justified under the facts of the case.
The district court considered Baksh’s arguments in favor of the variance and
addressed the sentences imposed on the co-conspirators involved in the bank fraud
and Ponzi scheme. The court noted Baksh’s difficult personal history and
weighed it against the seriousness of the offense. The court expressed concern
over the “rampant fraud that is existent in this community, and this state” and
concluded that this outweighed Baksh’s personal factors. Accordingly, the court
sentenced Baksh to 24 months’ imprisonment, which represented the low end of
the advisory guideline range, followed by 3 years’ supervised release, and ordered
restitution in the amount of $836,200. This is Baksh’s appeal.
Baksh argues that her sentence was procedurally unreasonable because the
district court failed to consider the § 3553(a) factors that were favorable to her,
and substantively unreasonable because of the unwarranted sentencing disparity
between her sentence and her co-conspirators’ sentences.
We review the reasonableness of a sentence under a deferential abuse-of-
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discretion standard of review. Gall v. United States, 552 U.S. 38, 41 (2007). The
party challenging the sentence has the burden of establishing that the sentence was
unreasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We may “set aside a sentence only if we determine, after giving a full measure of
deference to the sentencing judge, that the sentence imposed truly is
unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en
banc), cert. denied, 131 S. Ct. 1813 (2011).
In reviewing the reasonableness of a sentence, we conduct a two-step
review, first ensuring that the sentence was procedurally reasonable, meaning the
district court (1) properly calculated the guideline range, (2) treated the guidelines
as advisory, (3) considered the § 3553(a) factors, (4) did not select a sentence
based on clearly erroneous facts, and (5) adequately explained the chosen
sentence. Gall, 552 U.S. at 51. The district court need not explicitly articulate
that it has considered the § 3553(a) factors and need not discuss each factor as
long as the record indicates that the court considered the factors in some form. See
United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). The sentencing
judge need only “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.” United States v. Flores, 572 F.3d 1254, 1270-71
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(11th Cir. 2009) (internal citation omitted).
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence was substantively reasonable in light of the record and the
§ 3553(a) factors. Gall, 552 U.S. at 51, 56. The district court is required to
impose a sentence that is “sufficient, but not greater than necessary to comply with
the purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment
for the offense, deter criminal conduct, and protect the public from the defendant's
future criminal conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular
sentence, the court must also consider the nature and circumstances of the offense,
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).
Although § 3553(a)(6) requires the court to avoid unwarranted sentencing
disparities, concerns about disparate sentences among co-conspirators are not
implicated where the appellant and her codefendants are not similarly situated.
See United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008). We have
stated that “[d]isparity between sentences imposed on codefendants is generally
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not an appropriate basis for relief on appeal.” United States v. Regueiro, 240 F.3d
1321, 1325-26 (11th Cir. 2001).
“The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” Williams, 526 F.3d at
1322 (internal quotation marks and alteration omitted). We will not reverse unless
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.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). We
cannot say that a district court abused its discretion simply because we would have
imposed a different sentence. Irey, 612 F.3d at 1189.
Upon review, we conclude that Baksh has not demonstrated that her
sentence was procedurally unreasonable. The district court was not required to
specifically discuss each § 3553(a) factor, and it set forth enough to show us that it
had considered the parties’ arguments and had a reasoned basis for its decision.
Flores, 572 F.3d at 1270-71; Dorman, 488 F.3d at 944. The district court
specifically discussed certain § 3553(a) factors and concluded that, in light of the
rampant bank fraud, the seriousness of the offense outweighed Baksh’s personal
difficulties. On this basis, the court found that a guideline sentence was
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appropriate.
Baksh’s sentence was also substantively reasonable. We give deference to
the district court’s weighing of the § 3553(a) factors. See Pugh, 515 F.3d at 1191.
The need to avoid unwarranted sentencing disparities is just one factor for the
district court to consider in determining what is a reasonable sentence. See 18
U.S.C. § 3553(a).
Here, after considering the sentences imposed on the co-conspirators, and
explaining that the others were not similarly situated to Baksh, the district court
specifically stated that it was not giving the sentencing-disparity factor much
weight. The district court then indicated that it had considered the other § 3553(a)
factors. Thus, contrary to Baksh’s argument, the court did not unduly rely on only
one factor, and there is nothing to indicate that the district court made a clear error
of judgment in determining that the seriousness of Baksh’s offense outweighed her
past personal difficulties. Additionally, Baksh’s sentence was well below the
statutory maximum of five years’ imprisonment, a factor that indicates its
reasonableness. See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005).
We note that the government repeatedly stated that it could understand why
the court would vary downward. But the fact that we might have imposed a lesser
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sentence does not render the sentence unreasonable. Irey, 612 F.3d at 1189. We
therefore conclude that Baksh’s sentence, at the low end of the advisory guideline
range, is both procedurally and substantively reasonable.
AFFIRMED.
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