United States v. Porcelli , 440 F. App'x 870 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14777 SEP 21, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:09-cr-00472-SCB-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETER JAMES PORCELLI, II,
a.k.a. Peter James,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 21, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Peter James Porcelli, II, appeals his sentence for one count of mail fraud, in
violation of 18 U.S.C. § 1341. He raises four issues on appeal. First, he argues
that the district court erred in applying the U.S.S.G. § 3B1.3 offense-level
enhancement for abuse of trust or use of a special skill, particularly in light of its
simultaneous application of the § 3B1.1 aggravated-role enhancement. Second, he
claims that the financially distressed victims facing home foreclosure were not
“vulnerable victims” for purposes of § 3A1.1(b)(1). Third, he contends that the
portion of the forfeiture money judgment that exceeded the loss amount
constituted a violation of the Excessive Fines Clause of the Eighth Amendment.
Finally, he argues that the decision to impose the instant sentence to run
consecutively to his sentence in a Southern District of Illinois telemarketing-fraud
case was substantively unreasonable. For the reasons set forth below, we affirm.
I.
From at least December 2004 through January 2007, Porcelli and his
unindicted co-conspirators used the entities The Safe Harbour Foundation of
Florida, Inc. (“Safe Harbour”), Silverstone Financial, LLC (“Silverstone
Financial”), Silverstone Lending, LLC (“Silverstone Lending”), and Keystone
Financial (“Keystone”) to defraud distressed homeowners out of the equity in their
homes through fraudulent lending practices. Porcelli and others formed Safe
2
Harbour in December 2004. Safe Harbour’s Articles of Incorporation claimed that
its purpose was to “help save homeowners from foreclosure by introducing them
to lenders,” and Porcelli incorrectly advertised it as a nonprofit organization. At
that time, Porcelli and the others were subject to a federal-court injunction that
prohibited them from offering lending services to the public. The injunction arose
from a Federal Trade Commission (“FTC”) enforcement action, which was based
on the acts of Porcelli and others in defrauding customers by marketing false
credit opportunities. Porcelli and others formed Silverstone Financial in
December 2004 and Silverstone Lending in June 2005. On June 14, 2005, Porcelli
applied for Silverstone Lending’s Florida license to be a Mortgage Lender.
Silverstone Lending became a Correspondent Lender and Porcelli was licensed as
its Principal Representative.
Porcelli and the others searched for homeowners who were in jeopardy of
losing their homes through foreclosure, specifically targeting those who still had
equity in their homes. The conspirators sent the victims marketing mailings from
Safe Harbour that advertised it as a nonprofit “foreclosure relief” corporation. The
mailed flyers contained numerous misrepresentations and instances of deceptive
wording, such as:
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“We have all the funds available to pay your bills and save your home
from foreclosure, GUARANTEED!”
“Don’t lose your home”
“Guaranteed solution to stay in your home”
“Immediate relief from financial pressures”
“Stop the harassment”
“Save your credit”
“Safe Harbour Foundation is a NON-PROFIT Corporation, We can
help you! Timing is critical, let us help you survive the
FORECLOSURE STORM!”
“The Safe Harbour Foundation has been established to give people a
second chance when no one else will. You don’t have to file
bankruptcy we can still help. Our goal is to keep you in your home.
Be careful of other companies who look to profit from your
misfortune.”
“Watch for these warning signs...Don’t be the next victim!
“- Investment Sharks -These people are predators that want you
to fail so that they can benefit from your loss. Do not respond
to these people’s letters.
“- Quick Money offers - Do not short sell your home. Do not
be tricked into easy money to get out of your mortgage and ruin
your credit ratings.
“- Keep Swimming - Do not make the mistake of thinking this
will work itself out. Take action and let the Safe Harbour
Foundation pull you to safety.”
4
The flyers advised homeowners to call “Peter James,” Porcelli’s alias. In addition,
Porcelli and the others obtained victims’ business through Safe Harbour’s website,
which advised homeowners to call “Kyle Reid,” a co-conspirator’s alias.
In response to the advertisements, and believing that Safe Harbour was a
nonprofit organization as advertised, distressed homeowners called “Peter James”
for advice. Porcelli and others interviewed the homeowners to determine how
much equity they had in their property and the amount of arrearage on their
mortgages. If these parameters met certain criteria, the conspirators promised the
homeowners that Safe Harbour could find a lender to make up the arrearage and
help them to avoid foreclosure. Safe Harbour then arranged for the lender, most
often Silverstone Lending, to provide a short-term, extremely high-cost loan to
each homeowner, which would be used to pay the arrearage. Although most
homeowners needed only a few thousand dollars to avoid foreclosure, Safe
Harbour arranged loans that included finance charges, origination fees, and
underwriting fees, all of which immensely increased the sizes of the loans. The
charges and fees were received by Safe Harbour, Silverstone Lending, Silverstone
Financial, Keystone, and other entities controlled by Porcelli and the co-
conspirators.
5
Additionally, the loans included a purchase option to be exercised by the
lender upon default by the borrower. The option purchase price was calculated by
subtracting the homeowner’s equity from the estimated value of the home, thus
allowing the conspirators to obtain all of the equity in the home by simply paying
off any liens senior to their own, with little or no money going to the homeowner.
Thus, a homeowner who fell into default lost the home and all of the equity in it.
Porcelli was indicted in 2009 on one count of mail fraud, in violation of 18
U.S.C. § 1341, and pled guilty without a plea agreement. The indictment included
a forfeiture provision.
The probation officer calculated that 68 homeowner-victims borrowed a
total of approximately $1.8 million. Of that amount, approximately $1.2 million
constituted fraudulent loan fees and costs, and, thus, was the “loss and restitution”
amount owed to the victims. Co-conspirator Kyle Reid Kimoto, the creator and
leader of the conspiracy, had taught Porcelli the mechanics of the conspiracy.
Porcelli was a manager-supervisor of the conspiracy and helped to form and
operate the corporate entities involved.
Porcelli was subject to a base offense level of 7, pursuant to U.S.S.G.
§ 2B1.1(a)(1), a 16-level enhancement for a loss amount of more than $1,000,000
but less than $2,500,000, pursuant to § 2B1.1(b)(1)(I), and a 4-level enhancement
6
for an offense involving 50 or more victims, pursuant to § 2B1.1(b)(2)(B).
Because the offense conduct violated an injunction, another two levels were added
pursuant to § 2B1.1(b)(8). The financially distressed homeowners were
considered “vulnerable victims” for purposes of the two-level enhancement in
§ 3A1.1(b)(1), and another three levels were applied pursuant to the aggravated-
role enhancement in § 3B1.1(b). Additionally, the probation officer stated that
obtaining and maintaining the mortgage-lending licenses required adherence to
fiduciary standards and practices. Thus, the offense involved the abuse of a
position of trust, and Porcelli was subject to a two-level increase under § 3B1.3.
With a three-level reduction for acceptance of responsibility, pursuant to
§ 3E1.1(a)-(b), Porcelli had a total offense level of 33.
Porcelli received 3 criminal-history points and, thus, was in criminal history
category II, due to his 2007 guilty plea in the Southern District of Illinois to 19
charges arising from a fraudulent telemarketing scheme. That scheme involved
using multiple corporations to sell fraudulent credit cards to consumers, resulting
in a total net loss of more than $12 million to more than 165,000 victims.
Porcelli was subject to statutory maximum penalties of 20 years’
imprisonment, 3 years’ supervised release, and $250,000 in fines. He faced
guideline ranges of 151 to 188 months’ imprisonment, 2 to 3 years’ supervised
7
release, and $17,500 to $175,000 in fines. The probation officer noted that
Porcelli might be eligible for a downward departure under § 4A1.3(b)(1), as
Porcelli’s offense level and criminal-history score would have been lower if the
instant offense and the 2007 telemarketing offense had been consolidated for trial.
Porcelli objected, in relevant part, that the “loss and restitution” amount was
incorrect and that he did not use a special skill or hold any fiduciary relationship
with the clients. He further objected that the failure to consolidate the two fraud
cases resulted in an overstated criminal history and that the probation officer did
not adequately describe his cooperation in the telemarketing case.
At the first sentencing hearing, several victims testified that Porcelli had
caused them emotional and physical distress by manipulating, intimidating, and
confusing them into the agreements, then harassing and threatening them and
stealing their homes after they defaulted. One victim experienced high blood
pressure and a heart attack as a result of Porcelli’s actions, another was seeing a
psychologist and taking considerable medication, and a third attempted to commit
suicide. At the second sentencing hearing, defense counsel indicated that Porcelli
had offered to do “whatever is necessary to assist the people who still have liens
against them,” and he noted that he had received a substantial-assistance reduction
to his sentence in the telemarketing case. The prosecutor and FTC officer in the
8
telemarketing case both had submitted emails to the court praising Porcelli’s
cooperation in that case.
The district court found a total loan amount of $1,886,500 and an estimated
loss amount of $1,066,381.80. The court found that two victims erroneously
appeared twice on the list in the PSI, but that there remained more than 50 victims
of the offense within the meaning of the Guidelines.
Porcelli argued that the § 3B1.3 role enhancement should not apply, as his
mortgage-lending license did not rise to the level of a “special skill” for purposes
of § 3B1.3 and he did not hold a unique relationship of trust with the victims. He
contended that he never held himself out as anything other than a lender. The
court stated that it believed the § 3B1.3 enhancement to arise from an abuse of
trust, rather than use of a special skill, and it noted that an abuse of trust occurs
when a defendant falsely holds himself out as holding a position of public or
private trust. It further found that the enhancement applied because Porcelli’s
status as a licensed mortgage lender was integral to his perpetration of the fraud.
The government stated that Porcelli’s three criminal-history points had been
properly assessed, but that it would be reasonable to apply a downward variance
based on a finding that imposition of the three points was not fair. It
acknowledged that the prosecutor in the telemarketing case had spoken
9
“glowingly” of Porcelli’s assistance and that Porcelli had received a sentence
reduction in that case. It further argued that the court should impose the instant
sentence to run consecutively to the sentence in the telemarketing case, as the
cases involved two separate frauds and an “enormous number” of victims for
which Porcelli needed to be held accountable.
Porcelli argued that the two cases had not been consolidated only because of
delays arising from prolonged plea-bargain discussions. He indicated that he had
hoped that his cooperation in the Southern District of Illinois would be considered
in both cases, but the unfortunate timing prevented that from happening.
Furthermore, if the cases had been consolidated, the guideline calculations in this
case likely would have absorbed by the other offense level due to the much greater
size of the telemarketing case. He acknowledged that the Sentencing Guidelines
did not require consecutive sentencing, but he argued that a sentencing credit or
concurrent sentencing would be equitable. Furthermore, Porcelli readily
acknowledged that his conduct was wrong, and he was attempting to “absolve
himself of his sins” insofar as the mortgages were concerned.
Porcelli’s wife submitted a written statement of support and his sister spoke
on his behalf. Porcelli apologized directly to his family, the court, the
government, and the victims, and he pledged to do whatever he could to make up
10
for his actions. He expressed his remorse for all of his criminal activity across the
two cases and described his cooperation as an effort to “embark on the proper
course.” He asked the court for the opportunity to demonstrate his ability to
become a productive citizen and a good family member again.
The court acknowledged the theory that Porcelli would have had no
criminal-history points if the government had filed the instant indictment more
promptly, but it found that the two frauds were separate, so it would not be
reasonable to run the two sentences concurrently unless Porcelli’s cooperation in
the telemarketing case were applicable to the sentencing considerations in the
instant case. The government responded that the cooperation dealt only with the
unrelated telemarketing offense and, thus, did not meet the definition of
substantial assistance in the instant case. It added that the Southern District of
Illinois fully accounted for his cooperation when reducing the other sentence.
The government read a statement from one of the victims, and another
victim addressed the court. As to the forfeiture issue, the government noted that
$48,000 of the total loan amount had been lent to people who were not “victims”
of the fraud. Therefore, the government requested a forfeiture money judgment of
$1,838,500. Porcelli stated that he did not question the appropriateness of a
forfeiture, but he contended that it should be based on the loss amount, not the
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total loan amount. The difference between those two amounts was the substantial
sum of money paid to third parties for the benefit of the victims, and, as such, it
should not be subject to forfeiture. The court found that a forfeiture must be based
on the gross proceeds traceable to the offense, not the net proceeds or the loss
amount. Accordingly, the objection was overruled.
The court reiterated that Porcelli had a total offense level of 33 and 3
criminal-history points, for a criminal history category of II and a guideline range
of 151 to 188 months’ imprisonment. It found that applying the criminal-history
points would not be fair under the circumstances, so it departed downward to
criminal history category I and a guideline range of 135 to 168 months’
imprisonment.1 Regarding whether to run the sentence concurrently with the
sentence for the telemarketing fraud, the court noted that the two frauds were
separate schemes with entirely different victims, so there was no relevant conduct
here that had been, or could have been, considered by the Southern District of
Illinois sentencing judge. It found that Porcelli’s cooperation in the telemarketing
case was adequately reflected in the substantial-assistance reduction he received in
that case, and that, furthermore, it could not give Porcelli credit for cooperation in
1
The district court and the probation officer indicated that the reduced guideline range was
135 to 151 months’ imprisonment, but the Sentencing Table in U.S.S.G. chapter 5 indicates that the
correct range is 135 to 168 months’ imprisonment.
12
the absence of a request by the government. It stated that it would impose the
instant sentence to run consecutively to the Illinois sentence, out of fairness to the
victims and in recognition of the fact that the cases involved separate frauds.
The court waived a fine. It stated that it had considered the advisory
guidelines, all of the discussion during the hearing, and the 18 U.S.C. § 3553sentencing factors. It noted in particular the needs for protection of the public,
deterrence, and a sufficient but not greater-than-necessary sentence. It then
imposed a below-guideline sentence of 120 months’ imprisonment, consecutive to
the Illinois sentence of 99 months’ imprisonment, followed by 3 years’ supervised
release, to run concurrently with any supervision imposed in the Illinois case. The
court also entered a forfeiture money judgment of $1,838,500. At a later
restitution hearing, the court reviewed the mortgage satisfactions that Porcelli had
filed in the interim and ordered $669,041.92 in restitution.
II.
The § 3B1.3 enhancement applies “[i]f the defendant abused a position of
public or private trust, or used a special skill, in a manner that significantly
facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. We
review for clear error the district court’s factual determination that a defendant
abused a position of trust, but its conclusion that the defendant’s conduct justified
13
the abuse-of-trust enhancement is a question of law that we review de novo.
United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998).
The question of whether a defendant occupied a position of trust is assessed
from the perspective of the victim of the crime. Id. In a fraud case, § 3B1.3 “has
been recognized to apply in two situations: (1) where the defendant steals from his
employer, using his position in the company to facilitate the offense, and (2) where
a fiduciary or personal trust relationship exists with other entities, and the
defendant takes advantage of the relationship to perpetrate or conceal the offense.”
Id. at 837-38 (quotation marks omitted). A “position of public or private trust is
characterized by professional or managerial discretion . . . . Persons holding such
positions ordinarily are subject to significantly less supervision than employees
whose responsibilities are primarily non-discretionary in nature.” § 3B1.3,
comment. (n.1). The abuse-of-trust adjustment also applies if “the defendant
provides sufficient indicia to the victim that the defendant legitimately holds a
position of private or public trust when, in fact, the defendant does not,” such as
by falsely representing that he is a legitimate investment broker or licensed
physician. Id., comment. (n.3). In making such a misrepresentation, the defendant
assumes a position of trust relative to the victim, thus providing himself the same
14
opportunity to commit a difficult-to-detect crime that he would have had if the
position were held legitimately. Id.
“[T]he primary concern of § 3B1.3 is to penalize defendants who take
advantage of a position that provides them freedom to commit or conceal a
difficult-to-detect wrong.” Garrison, 133 F.3d at 838 (quotation marks omitted).
The court “must distinguish between those arms-length commercial relationships
where trust is created by the defendant’s personality or the victim’s credulity, and
relationships in which the victim’s trust is based on [the] defendant’s position in
the transaction.” Id. (quotation marks omitted). “Fraudulently inducing trust in an
investor is not the same as abusing a bona fide relationship of trust with that
investor.” United States v. Mullens, 65 F.3d 1560, 1567 (11th Cir. 1995).
Here, Porcelli falsely held out Safe Harbour as a nonprofit foundation
dedicated to “foreclosure relief.” Victims contacted Porcelli in reliance on that
representation, as well as on the misrepresentations that Safe Harbour was
established to “keep [people] in [their] home[s],” “give [them] a second chance,”
“[s]ave [their] credit,” and protect them from “predators” who wanted to profit
from their misfortunes. Porcelli then took advantage of the victims’ belief that he
was a nonprofit foreclosure-relief counselor in order to induce them to take out
second mortgages through Silverstone Lending or another of his for-profit lenders.
15
Silverstone Lending’s ability to make such mortgages and to create the attendant
fees depended on Porcelli’s state-issued mortgage-lending license. Under all the
circumstances, the district court did not clearly err in finding that Porcelli held, or
falsely led the victims to believe that he held, a bona fide relationship of trust with
them. See § 3B1.3 & comment. (n.3); Garrison, 133 F.3d at 837.
Furthermore, Porcelli’s interactions with the victims were not limited to
“arms-length” lending transactions in which Porcelli, as a representative of
Silverstone Lending, “[f]raudulently induc[ed] trust in” the borrowers. See
Garrison, 133 F.3d at 838; Mullens, 65 F.3d at 1567. Rather, Porcelli also used
his falsely assumed position as a nonprofit foreclosure-relief coordinator to
manipulate and intimidate the victims into believing that a second mortgage from
Silverstone Lending was their only remaining option, and, in doing so, caused the
victims to be more susceptible to signing the exorbitant mortgage contracts. Thus,
the court did not err in finding that Porcelli abused his falsely assumed position of
trust with the victims. See § 3B1.3 & comment. (n.3); Garrison, 133 F.3d at 837-
38; Mullens, 65 F.3d at 1567.
If a defendant is eligible for both the § 3B1.1 aggravated-role enhancement
and the § 3B1.3 enhancement, the court may only apply both enhancements if the
latter is based at least in part on an abuse of trust. See § 3B1.3. If the § 3B1.3
16
enhancement is based solely on the use of a special skill, it may not be applied in
addition to the § 3B1.1 enhancement. Id. Here, the district court explicitly relied
upon the abuse-of-trust provision, and, again, the enhancement is valid on that
ground. Although the court did note that Porcelli’s status as a licensed mortgage
lender was integral to the fraud, it did not state that the § 3B1.3 enhancement was
applicable solely due to a special skill associated with that license. Accordingly,
the court did not err in applying both enhancements. See § 3B1.3.
III.
Where, as here, the defendant fails to object in the district court to a
purported guideline calculation error, we review for plain error. See United States
v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Thus, Porcelli must show (1) an
error that (2) is plain, (3) affects substantial rights, and (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “The
findings of fact of the sentencing court may be based on evidence heard during
trial, facts admitted by a defendant’s plea of guilty, undisputed statements in the
presentence report, or evidence presented at the sentencing hearing.” United
States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).
17
“If the defendant knew or should have known that a victim of the offense
was a vulnerable victim,” he is subject to a two-level enhancement. § 3A1.1(b)(1).
A “vulnerable victim” is a victim “who is unusually vulnerable due to age,
physical or mental condition, or who is otherwise particularly susceptible to the
criminal conduct.” Id., comment. (n.2). The adjustment applies when the
defendant selects his victim due to his perception of the victim’s vulnerability to
the offense. United States v. Day, 405 F.3d 1293, 1296 (11th Cir. 2005). Thus, in
determining whether the victims were “vulnerable,” we focus on the facts known
to the defendant when he decided to target the victims, not on the harm actually
suffered by the victims. United States v. Page, 69 F.3d 482, 489 & n.6 (11th Cir.
1995). “It is clear that having bad credit or otherwise being in a precarious
financial situation is a ‘vulnerability’ to fraudulent financial solicitations . . . .” Id.When a fraudulent loan scheme is “specifically addressed . . . to persons with bad
credit,” it “target[s] the most desperate victims.” Id. at 490. “We will not absolve
. . . defendants of their culpability for having targeted ‘vulnerable victims’ simply
because, in casting out their net, they happened to ensnare and defraud some
individuals who did not share this vulnerability.” Id. at 491-92.
Porcelli specifically targeted individuals who were financially distressed
and were in danger of losing their homes through foreclosure. He marketed Safe
18
Harbour as a nonprofit organization that would “give people a second chance
when no one else w[ould],” and he wrote the marketing materials to appeal to
people who were facing “financial pressures,” bankruptcy, harassment by
creditors, and “ruin[ed] . . . credit ratings.” Although Porcelli suggests that some
or all of the victims might have lost their homes despite their involvement with
him, the actual harm suffered is irrelevant to this analysis. See Page, 69 F.3d at489 n.6. Furthermore, his speculation that some of the victims might not have
been financially distressed or might have sought the mortgages for reasons other
than imminent foreclosure does not prove that the vulnerable-victim finding was
plainly erroneous. See Massey, 443 F.3d at 818; Page, 69 F.3d at 491-92. The
district court did not plainly err in finding that the victims were unusually
susceptible to the mortgage-fraud scheme, that Porcelli had targeted them for that
reason, and, thus, that the vulnerable-victim enhancement applied. See §
3A1.1(b)(1) & comment. (n.2); Massey, 443 F.3d at 818; Page, 69 F.3d at 489-90.
IV.
Property is subject to forfeiture to the United States if it “constitutes or is
derived from proceeds traceable to a violation of” certain enumerated offenses,
including mail fraud. 18 U.S.C. § 1981(a)(1)(C), cross-referencing §§ 1957(c)(7),
1961(1). If a defendant is convicted of one of the enumerated offenses, the
19
sentencing court is required to order forfeiture of the property. 28 U.S.C.
§ 2461(c). A forfeiture order violates the Excessive Fines Clause “when it is
grossly disproportional to the gravity of a defendant’s offense.” United States v.
Chaplin’s, Inc., No. 10-10832, slip op. at 2469 (11th Cir. July 13, 2011)
(quotation marks omitted). Thus, we review the forfeiture only for gross
disproportionality, not for strict proportionality. Id. This standard acknowledges
that “proportionality analyses are inherently imprecise and best kept within the
province of legislatures, not courts.” Id. (quotation marks omitted).
Three factors guide the gross-disproportionality inquiry: “(1) whether the
defendant falls into the class of persons at whom the criminal statute was
principally directed; (2) other penalties authorized by the legislature (or the
Sentencing Commission); and (3) the harm caused by the defendant.” Id.(quotation marks omitted). Additionally, “the interplay between the forfeiture
order and the fine imposed by the district court” is relevant to the gross-
disproportionality analysis. Id. at 2472. Finally, a strong presumption of
constitutionality applies to forfeitures that fall below the maximum statutory fine
for the offense. Id. at 2469. Yet where a forfeiture exceeds the statutory-
maximum or guideline-range fine, it is not presumptively invalid. See id. Rather,
such forfeitures simply receive closer scrutiny. Id.20
The district court entered a forfeiture money judgment of $1,838,500, equal
to the total amount lent to the victims, or the gross proceeds of the offense.
Porcelli does not challenge the forfeiture of the estimated loss amount of
$1,066,381.80. Rather, he challenges only the constitutionality of the forfeiture of
the other $772,118.20, on grounds that the latter amount was used to pay off the
first mortgages and, thus, benefitted the victims.
First, Porcelli appropriately does not suggest that he is outside the class of
persons at whom the mail-fraud statute is principally directed. See Chaplin’s, slip
op. at 2469. Second, the available sentences—statutory maximum sentences of 20
years’ imprisonment and a $250,000 fine—suggest that Porcelli was convicted of
a serious offense. See id. at 2469-70. Third, Porcelli’s offense involved well over
50 vulnerable victims, to whom he caused serious financial, physical, and mental
harm, despite his use of part of the proceeds to pay the victims’ first mortgages.
See id. at 2469. Indeed, payment of the first mortgages was not a mere “benefit”
provided to the victims but, rather, was an integral part of Porcelli’s scheme to
defraud the victims of the equity in their homes by positioning himself to foreclose
on the second mortgages.
Fourth, Porcelli was subject to a statutory-maximum fine of $250,000 and a
guideline range of $17,500 to $175,000, meaning that the challenged portion of
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the forfeiture was approximately three times the statutory maximum and four-and-
a-half times the high end of the guideline range. Yet the district court waived a
fine entirely, and, furthermore, imposed both a downward departure and a
downward variance to a term of imprisonment that was only half the maximum
authorized by statute. Moreover, “Congress has authorized both a fine and
forfeiture as part of the punishment for” a mail-fraud offense, “which suggests that
Congress does not consider a punishment somewhat above the statutory fine range
to be excessive.” See id. at 2472. Taking all of these factors together, Porcelli has
not shown that the forfeiture of the challenged $772,118.20 was grossly
disproportional to the gravity of his offense. See id. at 2469, 2472.
V.
We review a sentence for substantive reasonableness under an abuse-of-
discretion standard. United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010)
(en banc), cert. denied, 131 S.Ct. 1813 (2011). We will reverse a sentence under
that standard only if the district court has made a clear error of judgment. Id. at
1189. The appellant bears the burden of establishing that the sentence is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), sentencing is a two-step process that requires the district court first to
22
“consult the Guidelines and correctly calculate the range provided by the
Guidelines,” then to consider the factors in 18 U.S.C. § 3553(a) and determine a
reasonable sentence. Talley, 431 F.3d at 786. Those 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 training or medical care; (6) the kinds of sentences available; (7) the
sentencing guideline range; (8) pertinent policy statements of the Sentencing
Commission; (9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to the victims. Id. (discussing § 3553(a)).
“Multiple terms of imprisonment imposed at different times run
consecutively unless the court orders that the terms are to run concurrently.” 18
U.S.C. § 3584(a). Where, as here, the offenses underlying the two sentences did
not arise from relevant conduct, the district court may impose the new sentence to
run concurrently, partially concurrently, or consecutively to the undischarged term
of imprisonment for the earlier offense. § 5G1.3(c). The court should aim “to
achieve a reasonable incremental punishment for the instant offense and avoid
unwarranted disparity” by considering the statutory sentencing factors, the length
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of the undischarged sentence, the time already served and likely to be served on
the undischarged sentence, “the fact that the prior undischarged sentence may have
been imposed in state court . . . or at a different time before the same or different
federal court,” and any other circumstances relevant to determining an appropriate
sentence. § 5G1.3, comment. (n.3(A)); accord § 3584(b) (requiring the court to
consider the § 3553(a) factors in deciding whether to order concurrent or
consecutive sentencing). The decision whether to impose consecutive or
concurrent sentencing under § 5G1.3(c) is within the district court’s discretion.
United States v. Bradford, 277 F.3d 1311, 1317 (11th Cir. 2002).
Here, the district court heard argument about Porcelli’s extensive
cooperation in the Southern District of Illinois case, the missed possibility of
trying the two cases together, and the effect of the delay on his criminal history
and offense level. Porcelli expressed his remorse and pledged to do whatever he
could to make up for his conduct, such as filing satisfactions of the outstanding
mortgages. His wife and sister made statements on his behalf. The court also
heard about the “enormous number” of victims across the two cases and the fact
that Porcelli’s cooperation did not pertain to the instant offense. A number of
victims also made statements to the court about the financial, physical, and mental
harm they suffered due to Porcelli’s conduct.
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The court considered all of the arguments and the § 3553(a) factors, noting
in particular the issue with Porcelli’s criminal history, the lack of relevant conduct
that could have been considered by the Illinois judge, the reflection of Porcelli’s
cooperation in the reduced Illinois sentence, and the needs for fairness to the
victims, deterrence, and protection of the public. It departed downward by 1
criminal history category and varied further downward to a sentence of 120
months’ imprisonment, thus imposing a sentence 15 months below the new
guideline range and 31 months below the original range, but determined that
consecutive sentencing would be appropriate in order to reflect the different
circumstances and victims of the two offenses. Porcelli has not shown that these
decisions constituted a clear abuse of the court’s discretion. See § 5G1.3,
comment. (n.3(A)); Irey, 612 F.3d at 1188-89; Bradford, 277 F.3d at 1317.
For the foregoing reasons, we affirm Porcelli’s sentence.
AFFIRMED.
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