United States v. Aaron Tyrone Wilson ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ AUGUST 7, 2009
THOMAS K. KAHN
No. 08-16193 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 08-00151-CR-J-24-JRK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON TYRONE WILSON,
a.k.a. T-Y
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 7, 2009)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Aaron Tyrone Wilson appeals the 96-month sentence imposed by the district
court for his printing and production of false and fictitious documents purporting to
be actual securities or other financial instruments, in violation of 18 U.S.C. § 514.
On appeal, Wilson argues that his sentence is procedurally and substantively
unreasonable. He also asserts that the district court erred because it identified the
wrong laptop computer in the forfeiture order accompanying the sentence. For the
reasons that follow, we AFFIRM his sentence but REMAND to permit the district
court to correct the record with respect to the forfeiture order.
I. BACKGROUND
Between August and November 2007, Wilson manufactured counterfeit
checks that purported to be from various corporations conducting business in
Florida and other states. On 6 November 2007, Secret Service agents observed
Wilson attempting to cash counterfeit checks and seized various pieces of
evidence, including a laptop computer and a printer, which Wilson later admitted
he used to print the checks. A grand jury subsequently indicted him for knowingly
making fictitious financial instruments, in violation of 18 U.S.C. § 514(a)(1), a
crime to which Wilson pled guilty in June 2008. Wilson’s indictment included a
provision in which the government sought forfeiture under 18 U.S.C. § 492 and 24
U.S.C. § 2461(c) of an Acer 800 laptop computer, a power cord, and a Lexmark
printer. The government, after determining that agents had seized a Dell Inspiron
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laptop rather than a Acer 800 laptop, simultaneously filed a motion to dismiss the
forfeiture count with respect to the Acer laptop and a bill of particulars specifying
forfeiture of the Dell Inspiron laptop, along with the Lexmark printer and power
cord. It subsequently moved for a preliminary order of forfeiture on those latter
three items, which the district court granted.
The district court held a sentencing hearing in October 2008, at which
Wilson reiterated his guilty plea. Prior to the hearing, the government filed a
motion based on U.S.S.G. § 4A1.3 for a two-level upward departure with respect to
Wilson’s criminal history category. In the motion, the government asserted that
Wilson’s criminal history category did not adequately reflect his past criminal
conduct because many of his prior convictions no longer could be taken into
account due to the passage of time. At the sentencing hearing, the court noted that,
prior to any departures or variances, Wilson’s guideline sentencing range would be
18 to 24 months of imprisonment, based on a criminal history category of IV and a
total adjusted offense level of 11. It then granted the government’s motion for a
§ 4A1.3 upward departure, which increased Wilson’s criminal history category
from IV to VI and changed his guideline range to 27 to 33 months of
imprisonment. After granting this motion, the court expressed its displeasure with
this adjusted range, noting that Wilson’s criminal history was “just bad” and that
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recidivism was likely. R6 at 16–17. The court stated that it was “going to depart
upward” and sentence Wilson to 96 months of imprisonment “based on this
uncounted criminal history, the fact that he’s on supervised release[,] . . . which
leads to the conclusion that he can’t stop,” and because “a longer sentence than
what’s recommended under the guideline is needed to protect the public.” Id. at
19. The court later commented that it had “considered the sentencing guidelines,
as well as the [18 U.S.C. §] 3553 factors, and for [the] reasoning already indicated
[was] going to . . . depart upward from the guideline range.” Id. at 21. Wilson
objected to the sentence as an excessive departure from the guidelines and
unreasonable in light of the § 3553 factors. The court also sentenced Wilson to 24
months of imprisonment, to run consecutively with his other sentence, for
committing the crime while on supervised release.
The district court stated at the sentencing hearing that it also was granting
the forfeiture motion and including it in the final judgment. The final judgment of
conviction, as well as the court’s statements at sentencing, identified the property
to be forfeited as the Acer 800 laptop, power cord, and Lexmark printer. Wilson
did not object to this catalog of items at the hearing, even though the court had
misidentified the laptop in question. When the court issued the final judgment of
forfeiture, it correctly listed the Dell Inspiron laptop along with the Lexmark
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printer and power cord as the property subject to forfeiture. Wilson subsequently
appealed his sentence.
II. DISCUSSION
On appeal, Wilson raises two issues. First, he contends that his 96-month
sentence is both procedurally and substantively unreasonable. Second, he asserts
that the district court erred in ordering him to forfeit his interest in the Acer 800
laptop. With respect to the reasonableness of his sentence, he maintains that it is
unclear from the record whether the district court based his above-guidelines
sentence on an upward departure under § 4A1.3 or an upward variance under
§ 3553(a). If it was the former, then the court would not have followed the
required procedure for departing upward. Furthermore, he asserts that the sentence
was greater than necessary to deter future criminality.
A. Reasonableness of Wilson’s Sentence
“We review the . . . sentence imposed by the district court for
reasonableness.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008)
(per curiam). In so doing, we must consider both the procedural and substantive
reasonableness of a sentence. See id. “A sentence may be procedurally
unreasonable if the district court improperly calculates the Guidelines range, treats
the Guidelines as mandatory rather than advisory, fails to consider the appropriate
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statutory factors, selects a sentence based on clearly erroneous facts, or fails to
adequately explain the chosen sentence.” Id. After we determine that a sentence is
procedurally reasonable, we examine the substantive reasonableness of a sentence
under an abuse-of-discretion standard, focusing on whether the totality of the
circumstances, including the relevant § 3553(a) factors, support the sentence. See
id. at 1323–24.
As Wilson notes, there is an intrinsic difference between an upward
departure and an upward variance, with the former resulting from the application
of particular provisions of the sentencing guidelines, such as § 4A1.3, and the latter
from the court’s consideration of the § 3553(a) factors1 . See United States v.
Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam). A district court may
issue an upward departure if it determines that the criminal history category
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These factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to avoid
unwanted sentencing disparities; and (10) the need to provide restitution
to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam)
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assigned to a defendant “substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(a)(1) (Nov. 2007). For upward departures from a
criminal history category of VI, the court “should structure the departure by
moving incrementally down the sentencing table to the next higher offense level in
Criminal History Category VI until it finds a guideline range appropriate to the
case.” Id. § 4A1.3(a)(4)(B). On the other hand, the court may upwardly vary a
sentence after taking into account all of the factors listed in § 3553(a). A
sentencing judge need not make an explicit statement indicating that he has taken
all of those factors into account; however, he should provide enough indication “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. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation marks and
citation omitted).
In this case, both parties agree that the district court initially imposed an
upward departure to criminal history category VI and that there was no procedural
error in that action. We therefore must determine whether the court’s subsequent
decision to impose a 96-month sentence represented an upward variance or a
second upward departure. Based on our review of the evidence, it appears that the
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court intended to impose an upward variance. Admittedly, the court stated that it
was “depart[ing] upward” in imposing the above-the-guidelines sentence. R6 at
19. In the same sentence, though, the court justified its action by citing concepts
that seem to reflect the § 3553(a) factors, such as the need to protect the public,
Wilson’s criminal history and characteristics, and the risk of recidivism. See 18
U.S.C. § 3553(a)(1), (2)(A)–(C). The court later explicitly stated that it was basing
its “departure” in part on § 3553. Additionally, the court’s written statement of
reasons supporting the sentence indicated that it imposed an above-guidelines
sentence for the reasons articulated in § 3553(a)(2), i.e., protecting the public from
future crimes by Wilson, in addition to upwardly departing under § 4A1.3 to reflect
Wilson’s inadequate criminal history. These repeated references to § 3553(a)
considerations indicate that the court intended to impose an upward variance, since
those factors, with the exception of criminal history, generally would not be
relevant for an upward departure under § 4A1.3. We therefore find that the court’s
above-guidelines sentence reflected an upward variance, notwithstanding the
court’s reference to an upward “departure.”
In light of this finding, we turn to evaluating Wilson’s sentence for
reasonableness. Neither party asserts that the court improperly calculated the
applicable guidelines range and the court provided a number of legitimate
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justifications for the above-guidelines sentence. We therefore find Wilson’s
sentence to be procedurally reasonable. See Gonzalez, 550 F.3d at 1323. Wilson
argues that his sentence was substantively unreasonable because the court relied on
faulty calculations of his prior offenses and effectively doubly penalized him by
sentencing him for committing the crime while on supervised release and upwardly
varying his sentence based on his recidivism. We disagree. Wilson still would
have a quite extensive criminal history even ignoring all of the charges he disputes.
Additionally, Wilson’s sentence for violating his supervised release is premised on
a breach of the court’s trust. See U.S.S.G. Ch.7, Pt.A, intro. comment. 3(b). On
the other hand, the court’s reference to Wilson’s inability to stop committing
crimes relates to various § 3553(a) factors, including promoting respect for the law
and deterring criminal conduct. See 18 U.S.C. § 3553(a)(2)(A)–(B). The upward
variance thus would not constitute double punishment for Wilson’s violation of his
supervised release. Although Wilson’s sentence represented a dramatic increase
from his guideline range, the variance is not unreasonable given the totality of the
circumstances. See Gonzalez, 550 F.3d at 1323–24. Wilson’s vast criminal
history, along with concerns about recidivism and protecting the public, all support
the court’s sentence. Additionally, we note that his 96-month sentence was well
below the statutory maximum of 300 months. See 18 U.S.C. §§ 514(a),
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3581(b)(2).
B. Forfeiture Order
Both parties concede that the district court erred when it ordered the
forfeiture of an Acer 800 laptop computer instead of a Dell Inspiron laptop
computer. Wilson asserts that, as a result, we should vacate that provision of his
sentence and remand for resentencing. Because Wilson did not object to this error
before the district court, we review his objection under a plain error standard. See
United States v. Garey, 546 F.3d 1359, 1363 (11th Cir. 2008) (per curiam). For us
to correct such an error, “(1) there must be error; (2) the error must be plain; and
(3) the error must affect substantial rights.” Id. If we find those conditions to be
met, we may exercise our discretion “to notice a forfeited error, but only if . . . the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation marks and citation omitted).
In this case, there is no basis for vacating this portion of Wilson’s sentence.
Although the first two prongs of the plain error standard would be met, Wilson has
provided no evidence that his substantial rights were affected by the error. In fact,
the final judgment of forfeiture listed the Dell Inspiron laptop rather than the Acer
laptop. The court’s references to the Acer laptop at the sentencing hearing and in
the final judgment of conviction thus would constitute the kind of clerical error that
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the district court could correct pursuant to Rule 36 of the Federal Rules of Criminal
Procedure. See Rule 36 (stating that the district court “may at any time correct a
clerical error in a judgment, order, or other part of the record, or correct an error in
the record arising from oversight or omission”). Bearing this in mind, we think the
appropriate course of action is to affirm the forfeiture order but remand the case to
the district court to permit it to take any corrective action it may deem appropriate.
III. CONCLUSION
Wilson appeals the district court’s 96-month sentence following his
conviction for printing and producing false and fictitious documents purporting to
be actual securities or other financial instruments. The record sufficiently indicates
that the court’s sentence was based on an upward variance from an adjusted
guideline range. Wilson’s sentence therefore was procedurally and substantively
reasonable given his criminal history, the need to protect the public, and the risk of
recidivism. Furthermore, although the district court misstated the property subject
to forfeiture in connection with this offense, we find both that this was not plain
error that would necessitate vacating that portion of his sentence and that such an
error can be corrected by the district court pursuant to Rule 36. We thus AFFIRM
his sentence and REMAND to allow the district court to correct the record as it
sees fit.
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AFFIRMED and REMANDED.
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