United States v. Richard Lester Green , 497 F. App'x 894 ( 2012 )

Case: 12-11571 Date Filed: 11/16/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11571
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cr-00196-TJC-TEM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD LESTER GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 16, 2012)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Case: 12-11571 Date Filed: 11/16/2012 Page: 2 of 4
Richard Green appeals his sentence of 120 months of imprisonment
following his pleas of guilty to bank fraud, 18 U.S.C. §§ 1344, 2, and aggravated
identity theft, id. § 1028A. Green argues that his sentence is unreasonable. We
affirm Green’s sentence, and we vacate and remand for correction of a
typographical error in the written judgment.
Green’s sentence is procedurally reasonable. The district court correctly
calculated the advisory guideline range and explained that it decided to vary 50
months above the high end of Green’s advisory guideline range of 37 to 46 months
in sentencing him for bank fraud because that range underrepresented his criminal
history. Green argues that the district court relied on factors unrelated to his
assistance to law enforcement in deciding to grant him a two-point departure for
substantial assistance instead of the six-point departure that he requested, but the
district court based its decision on the “significance and usefulness of [Green’s]
assistance . . . [in the light of] the government’s evaluation of the assistance
rendered.” See United States Sentencing Guidelines Manual § 5K1.1(a)(1) (Nov.
2011). Although Green aided in the prosecution of his codefendants, the district
court explained that it was not “impress[ed] . . . that Mr. Green was willing” to
implicate his “less culpable” codefendants when “the government [argued it had
sufficient evidence to] prosecute[] th[o]se other individuals . . . anyway.”
2
Case: 12-11571 Date Filed: 11/16/2012 Page: 3 of 4
Green’s sentence is also substantively reasonable. Within one month of his
release from state prison, where he served more than three years for grand theft and
a felony offense of passing worthless checks, Green committed serious financial
crimes that inflicted a loss of $30,000 to $70,000 to between 50 and 250 victims.
Green and his codefendants stole checks from two United States Postal Service
collection boxes, altered the names of the payees on the checks, falsely endorsed
the checks for deposit into accounts they controlled or gained access to using
stolen identification information, and withdrew the proceeds of those checks. And
Green’s conduct evidenced his apparent resolve to live a life of crime. Green had
an extensive criminal history that included six delinquencies, 62 adult convictions,
and 121 other charges, and his sentences for those crimes, which ranged from 60
days to 4 years, had failed to have any deterrent effect. In these circumstances, the
district court reasonably determined that a term of 96 months for bank fraud to run
consecutively to a term of 24 months for aggravated theft would best address the
statutory purposes of sentencing. See 18 U.S.C. § 3553(a). Although Green
argues about a disparity between his sentence and lesser sentences imposed on his
codefendants, Green was not similarly situated to those codefendants. See United
States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009). As explained by the
district court, Green’s codefendants had “no criminal record” or “a very minor
criminal record,” “would [not] have [committed the crimes] on their own,” and had
3
Case: 12-11571 Date Filed: 11/16/2012 Page: 4 of 4
“roles . . . subservient to Mr. Green.” The district court did not abuse its discretion
in sentencing Green to 120 months of imprisonment.
We notice a clerical error in the written judgment. The written judgment
states incorrectly that Green pleaded guilty to conspiracy to commit bank fraud.
18 U.S.C. § 1349. Because “it is fundamental error for a court to enter a judgment
of conviction against a defendant who has not been charged, tried, or found guilty
of the crime recited in the judgment,” United States v. James, 642 F.3d 1333, 1343
(11th Cir. 2011) (internal quotation marks omitted), we vacate the written
judgment and remand for the district court to enter a new judgment stating that
Green pleaded guilty to bank fraud. 18 U.S.C. §§ 1344, 2.
We AFFIRM Green’s sentence, and we VACATE and REMAND for
correction of the written judgment.
4