United States v. Roger Frederick Corliss , 212 F. App'x 777 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 31, 2006
No. 05-14490 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00248-CR-T-23TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER FREDERICK CORLISS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 31, 2006)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Roger Frederick Corliss pleaded guilty to ten counts of mail fraud in
violation of 18 U.S.C. § 1341, based on a scheme in which he obtained
$113,372.13 by soliciting donations for two sham charitable organizations he
established. In this appeal of his 37-month sentence, Corliss first contends that the
district court erred by applying a variety of sentencing enhancements based on
facts unproven to a jury and not admitted by him, in violation of the principles of
law established in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Corliss also asserts that the district court’s application of two factually related
sentence enhancements amounts to impermissible “double counting.” Because
Corliss made these objections to the district court during his sentencing hearing,
we review that court’s ruling on them de novo, but will reverse the sentence only
for harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
With respect to Corliss’ first contention, we have, on several occasions,
clarified the meaning of Apprendi and subsequent cases addressing the federal
sentencing guidelines:
According to Apprendi and its progeny, any fact that increases
a sentence beyond the statutory maximum must be charged in
the indictment. Apprendi, 530 U.S. at 476, 120 S. Ct. 2348.
Although [United States v. Booker, 543U.S. 220, 125 S. Ct. 738(2005)] held that any fact increasing punishment must be
admitted by the defendant or proved to a jury, this Court has
stated that “both majority opinions in Booker make clear that
the decisive factor that makes pre-Booker sentencing
problematic is not extra-verdict enhancements but their use in a
mandatory guidelines system.”
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United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006) (quoting United
States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). Accordingly, we have
held that extra-verdict “enhancements made in a non-mandatory Guidelines system
are constitutionally permissible.” United States v. Duncan, 400 F.3d 1297, 1302
(11th Cir. 2005), cert. denied, 126 S. Ct. 432 (2005). In light of this holding, it is
clear that the district court did not err when applying the sentence enhancements.
Additionally, Corliss argues that the district court impermissibly used “the
same uncharged facts ... repeatedly to enhance the defendant’s sentence” when it
applied sentencing enhancements for: (a) an offense involving more than minimal
planning or more than one victim, U.S.S.G. § 2F1.1(b)(2)(A) and (B) (1998); (b)
an offense entailing “mass marketing,” U.S.S.G. § 2F1.1(b)(3); (c) an offense in
which Corliss misrepresented that he acted on behalf of charitable organizations,
U.S.S.G. § 2F1.1(b)(4)(A); and (d) an offense targeting “vulnerable victims,”
U.S.S.G. § 3A1.1(b)(1). In other words, Corliss argues that the district court
impermissibly engaged in “double counting.”
We have held that where multiple “enhancements embody conceptually
separate notions relating to sentencing because they are designed for ... different
purposes,” it is not double-counting to apply them cumulatively. United States v.
Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005); United States v. Rendon, 354 F.3d
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1320, 1334 (11th Cir. 2003). For example, we have specifically concluded that the
enhancement for an offense involving more than minimal planning or a scheme to
defraud more than one victim focuses on the “victims harmed,” while the “mass
marketing” enhancement focuses on the “method of inflicting harm,” and thus do
not overlap to the extent necessary to implicate a double counting problem. United
States v. Olshan, 371 F.3d 1296, 1301 (11th Cir. 2004). Here, all of Corliss’s
enhancements were based on conceptually separate notions and do not overlap. An
offense can involve more than minimal planning without entailing mass marketing;
an offense involving mass marketing does not necessarily require
misrepresentations about charity; and offenses that involve charitable fraud do not
always target vulnerable victims. See Ramirez, 426 F.3d at 1356. Accordingly, the
district court did not err.
AFFIRMED.
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