United States v. Yair Malol ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12195 ELEVENTH CIRCUIT
December 3, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-20157-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YAIR MALOL,
a.k.a. Yanni,
a.k.a. Charlie Levy,
a.k.a. Dany Malol,
a.k.a. Allen Mallul,
a.k.a. Zahi Melul,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 3, 2008)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Yair Malol was convicted of 33 counts, including 1 count of conspiracy, 15
counts of wire fraud, 9 counts of extortion, 7 counts of making a false bill of
lading, and 1 count of conspiracy to commit money laundering.1 He was acquitted
of 1 count of wire fraud, 1 count of extortion, and 1 count of making a false bill of
lading.2 Malol appeals his 121-month sentence, arguing that it is unreasonable in
light of 18 U.S.C. § 3553(a) and his codefendants’ sentences.
First, he argues that his sentence creates a disparity because his is more than
twice as high as his codefendants’. Second, he argues that his sentence is
unreasonable because he has no prior criminal convictions, and has been isolated
from his family in Israel. Finally, he argues that the district court did not properly
consider his particular characteristics and the nature of his confinement. He does
not challenge district court’s sentence based on 36 instead of 33 counts of
conviction. We affirm in part, vacate in part, and remand for resentencing with
instructions.
I.
We review a sentence imposed by the district court for both procedural and
1
We upheld Malol’s conviction and sentence in United States v. Malol, 476 F.3d 1283, 1284
(11th Cir. 2007). We vacated the sentence and remanded for resentencing, finding that the two-level
enhancement based on a Notice of Claim from the Department of Transportation was in error. Id.
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Id. at 1284 & n.1.
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substantive reasonableness. See Gall v. United States, 552 U.S. ___, ___, 128 S.
Ct. 586, 597, 169 L. Ed. 2d 445 (2007). Our “review for reasonableness is
deferential, and the party challenging the sentence has the burden of establishing
unreasonableness.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We
review sentencing decisions for an abuse of discretion. Gall, 128 S. Ct. at 597.
A sentence may be procedurally unreasonable if the district court improperly
calculated the guideline range, treated the guidelines as mandatory rather than
advisory, failed to consider the appropriate § 3553(a) factors, selected a sentence
based on clearly erroneous facts, or failed to explain adequately the chosen
sentence. Id. After determining that the sentence is procedurally sound, we review
the substantive reasonableness of a sentence for an abuse of discretion. Id. Our
review for substantive reasonableness involves examining the totality of the
circumstances, including the extent of any variance from the guidelines range. Id.
“The fact that [we] might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Id.
After Booker,3 a district court first must correctly calculate and consult the
guideline range, and second, must consider the § 3553(a) factors. United States v.
3
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
3
Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam).4
The district court does not need to discuss each § 3553(a) factor explicitly.
Talley, 431 F.3d at 786. “[A]n acknowledgment by the district court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Id. “The weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court.” United
States v. Amedeo, 487 F.3d 823, 832 (11th Cir.) (citation and quotation marks
omitted), cert. denied, ___ U.S. ___, 128 S. Ct. 671, 169 L. Ed. 2d 526 (2007).
“We will not substitute our judgment in weighing the relevant factors.” Id.
Malol’s total sentence is procedurally reasonable because the district court
properly considered the recommended guideline range and the § 3553(a) factors.
Likewise, the sentence is substantively reasonable. The offenses were serious and
perpetuated over a period of time, and there were numerous victims. Malol cannot
show that his sentence was unreasonable due to a disparity between his sentence
and his codefendants’ because he has not established that his codefendants were
4
The § 3553(a) 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 afford
adequate deterrence, to promote respect for the law, to provide just punishment for the offense, to
protect the public, and to provide the defendant with needed educational or vocational training or
medical care; (3) the kinds of sentences available; (4) the Sentencing Guidelines’ range; (5)
pertinent Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing
disparities among similarly situated defendants with similar records; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
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similarly situated. See 18 U.S.C. § 3553(a)(6). Accordingly, we affirm Malol’s
sentences as reasonable.
II.
We may sua sponte note clerical error in the district court’s judgment and
remand with instructions to correct the error. See United States v. Anderton, 136
F.3d 747, 751 (11th Cir. 1998) (per curiam). “It is fundamental error for a court to
enter a judgment of conviction against a defendant who has not been . . . found
guilty of the crime recited in the judgment.” United States v. Diaz, 190 F.3d 1247,
1252 (11th Cir. 1999). Although a defendant normally must be present at an initial
sentencing or resentencing, “where the entire sentencing package has not been set
aside, a correction of an illegal sentence does not constitute a resentencing
requiring the presence of the defendant, so long as the modification does not make
the sentence more onerous.” United States v. Jackson, 923 F.2d 1494, 1497 (11th
Cir. 1991).
The district court sentenced Malol based on 36 counts. But the jury
convicted Malol of only 33 counts. The court’s written judgment erroneously
includes three extra counts and subjects Malol to a special assessment of $3,600, or
$100 per count of conviction. Because the district court sentenced Malol based on
three incorrect counts, we sua sponte vacate the sentence. We remand for the
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district court to modify the sentence to reflect only 33 counts of conviction. Malol
does not need to be present at resentencing because the modification does not make
the sentence more onerous. See Jackson, 923 F.2d at 1497.
CONCLUSION
We affirm Malol’s sentence as reasonable. We vacate in part and remand
for the district court to resentence Malol without including the three incorrect
counts of conviction.
AFFIRMED IN PART; VACATED IN PART, AND REMANDED
WITH INSTRUCTIONS.
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