United States v. Jerry Alan Bottorff ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15765
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00269-SDM-AEP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY ALAN BOTTORFF,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 25, 2013)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Jerry Alan Bottorff appeals his total life sentence for his involvement in a
murder-for-hire plot. He was indicted and, without a plea agreement, pleaded
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guilty to using a facility of interstate commerce in the commission of a murder for
hire, in violation of 18 U.S.C. §§ 1958(a) and 2; conspiring to use a facility of
interstate commerce in the commission of a murder for hire, also in violation of
§§ 1958(a) and 2; and aiding or abetting carrying or using a gun, resulting in death,
in violation of §§ 924(c), (c)(1)(A)(iii), (j)(1), and 2. Specifically, Mr. Botorff
admitted that he and his now-wife Cristie Botorff, conspired with Michael Garcia
and Luis Lopez to have Lopez kill Cristie’s then-husband Thomas Lee Sehorne, so
that Cristie could collect insurance proceeds. Lopez shot and killed Sehorne on
June 7, 2007, and Cristie collected $1 million.
Bottorff argues that the district court erred procedurally by considering the
18 U.S.C. § 3553(a) sentencing factors in refusing to depart downward pursuant to
the government’s substantial assistance motion. He further argues that his
sentence is substantively unreasonable. Although the parties read the record
differently, our reading indicates that the district court actually granted the
government’s substantial assistance motion pursuant to United States Sentencing
Guidelines (USSG) § 5K1.1, departed downward, then imposed an upward
variance. 1
We review the reasonableness of a sentence under an abuse-of-discretion
1
The “Statement of Reasons” explains: “The court granted the government’s motion under
USSG § 5K1.1. However, on the court’s motion, the court varied upward from the advisory
guideline sentence after addressing the factors set forth under 18 U.S.C. § 3553(a). A sentence
of life is reasonably necessary to achieve the statutory purposes of sentencing.”
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standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). A
defendant challenging his sentence bears the burden of establishing that it is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Where
a defendant raises a sentencing issue for the first time on appeal, plain error review
applies. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
“Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Hoffman, 710 F.3d
1228, 1232 (11th Cir. 2013) (quotation marks omitted).
In reviewing the reasonableness of a sentence, we use a two-step process.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we ensure that
the sentence is procedurally reasonable, meaning that the district court properly
calculated the guideline range, treated the guidelines as advisory, considered the
§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Second, if we determine that a sentence is procedurally sound, we then examine
whether the sentence is substantively reasonable in light of the totality of the
circumstances. Id.We review the totality of the facts and circumstances to gauge for
substantive error. United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010)
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(en banc). A sentencing court may impose a sentence more severe than the
guideline range so long as that sentence is reasonable. United States v. Crawford.
407 F.3d 1174, 1179 (11th Cir. 2005). We may vacate a sentence 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.”
Pugh, 515 F.3d at 1191 (quotation marks omitted).
Although statutory mandatory minimums are generally preclusive, the
Guidelines allow district courts to impose lower sentences based on certain factors.
United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013). Under USSG
§ 5K1.1, the government may file a motion informing the court that the defendant
provided substantial assistance in the investigation or prosecution of another
individual. USSG § 5K1.1. If the government files such a motion, the court may
impose a downward departure under the Sentencing Guidelines, and the resulting
sentence may fall below the mandatory minimum penalty. Id.
Bottorff’s sentence was procedurally and substantively reasonable and the
district court committed no error, plain or otherwise. First, the district court
correctly calculated his original Guideline range and noted the impact of the
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mandatory minimum of life imprisonment in 18 U.S.C. § 1958.2 The Court then
granted the substantial assistance motion, it simply chose to impose an upward
variance based on § 3553(a) factors. Thus, the sentence was procedurally
reasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Second, the court indicated that it had considered the parties’ arguments, the
Guidelines, the presentence investigation report (PSI), and the § 3553(a) factors,
including the nature of the offenses and the need for deterrence, before imposing a
sentence which it considered sufficient but no harsher than necessary. The court
noted, among other things, that: (i) Bottorff and his co-defendant contacted a
convicted felon to hire a murderer; (ii) Sehorne was shot outside his home and laid
in a pool of blood until his child found his body hours later covered with insects;
and (iii) the planning extended over a long period of time during which Bottorff
could have stopped the events but chose not to do so.
Third, the district court’s statement of reasons adequately explained its
reasons for imposing an upward variance:
[A]ssessed under Section 3553(a), the attributes of the offense and
these offenders—the startling coldness and moral detachment of the
Bottorffs as they contemplated and executed this atrocity over many
weeks and afterward until apprehension, the necessity for an
unalloyed message to those who would contemplate a similar offense,
the necessity to protect the community from this species of criminal
adventure, and the other reasons stated at the sentencing—strongly
2
Indeed, neither party objected at sentencing to the factual content or guidelines calculations in
the presentence report or the district court’s ultimate sentence.
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commend the announced sentence, even after careful consideration
and re-consideration of the sundry matters to which the defense
directs by attention.
Finally, Bottorff’s life sentence was, in fact, the applicable statutory
mandatory minimum penalty for the offenses of conviction. Under these
circumstances, Bottorff cannot meet his burden of establishing that the sentence
was substantively unreasonable. See Pugh, 515 F.3d at 1191; Talley, 431 F.3d at
788.
Upon review of the record and consideration of the parties’ briefs, the
sentence is
AFFIRMED.
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