United States v. Scott Douglas Myers , 337 F. App'x 864 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 29, 2009
No. 08-14809 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00074-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT DOUGLAS MYERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 29, 2009)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Scott Douglas Myers appeals his 96-month sentence imposed for conspiracy
to commit bank fraud and making or possessing counterfeited securities. On
appeal, he argues that his sentence was substantively unreasonable because: (1) the
facts of his case did not justify the district court’s upward variance from his
guidelines range of 51 to 63 months of imprisonment; and (2) the upward variance
was improperly based on factors that also were used to calculate his guidelines
range. In addition, Myers argues that the district court plainly erred by ordering
that his 96-month sentence run consecutively to any future sentence imposed by
another district court for the conduct underlying his present offense. We AFFIRM.
I. BACKGROUND
On 17 April 2008, Myers pleaded guilty to one count of conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and one count of making or
possessing counterfeited securities, in violation of 18 U.S.C. § 513. At his guilty-
plea hearing, the government articulated the factual basis for Myers’s plea as
follows: In February 2008, the government received information that an individual
in a green minivan was recruiting people from outside a homeless shelter to cash
false payroll checks at Wal-Mart stores. Doc. 160 at 22. Officers stopped the van
in Mobile County, Alabama. Id. The driver of the van, Joseph Stanley, told the
officers that a group of four people, led by Myers, had asked him to help them
recruit homeless people to cash false payroll checks at Wal-Mart stores. Id. at 22-
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23. Three of Myers’s co-defendants consented to searches of their residences and
made statements to the police. Id. at 23. Based on these searches and statements,
officers learned that, beginning in 2007, Myers and his co-defendants had recruited
homeless people in various cities in the United States. They would use a homeless
individual’s personal information to print false payroll checks payable to the
homeless individual, and then transport the individual to a Wal-Mart store to cash
the check, which was typically made out in the amount of $250-$300. Id. The
homeless individual who cashed the check would receive approximately $25 of the
check amount, while Myers and his co-defendants would split the remainder. Id. at
23-24.
Under the Sentencing Guidelines, Myers’s base offense level was seven,
pursuant to U.S.S.G. § 2B1.1(a)(1). According to the presentence investigation
report (“PSI”), Myers and his co-defendants had victimized at least 119 Wal-Mart
stores in various cities in Louisiana, Texas, Alabama, Oklahoma, Arkansas,
Kansas, and Missouri, resulting in a loss of $94,846.51. For the purpose of
calculating Myers’s guideline range, this amount was determined to be the actual
loss in the case, yielding an eight-level increase pursuant to U.S.S.G.
§ 2B1.1(b)(1)(E), because the loss amount was more than $70,000 but less than
$120,000. Because the PSI indicated that Myers had orchestrated the fraudulent
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scheme and his co-defendants had viewed him as their leader, his offense level was
increased by four levels for acting as a leader or organizer of criminal activity
involving five or more participants, under U.S.S.G. § 3B1.1(a). Myers’s offense
level was further increased by two levels, pursuant to U.S.S.G. § 2B1.1(b)(9)(A),
for relocating a fraudulent scheme to another jurisdiction in order to evade law
enforcement. The probation officer then decreased Myers’s offense level by three
levels for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b),
yielding a final adjusted offense level of 18. Myers’s criminal history, which
included seven counts of conviction that were related to fraudulent behavior,
initially was given a criminal-history score of ten. Because Myers was on
supervised release as a result of his previous convictions in the Northern District of
Ohio at the time he committed his present offenses, the probation officer added two
additional points to his criminal-history score, resulting in a total criminal-history
score of 12 and a criminal history category of V. Accordingly, based on a total
offense level of 18 and a criminal history category of V, the probation officer set
Myers’s guideline range at 51 to 63 months of imprisonment.
At sentencing, the district court noted that it had planned on conducting a
hearing concerning Myers’s revocation of supervised release in a matter that had
been transferred to the court from the Northern District of Ohio, and that Myers
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had objected to the court conducting the revocation hearing. Doc. 160-2 at 5. The
parties noted that Myers’s supervised release was subject to revocation due, in part,
to the conduct underlying Myers’s present offense. Id. at 4-5. Noting Myers’s
objection, the district court indicated that the revocation hearing could take place in
the Northern District of Ohio at a later date, absent an agreement to the contrary by
the parties. Id. at 6-7.
The district court adopted the factual findings and guideline applications
contained in the PSI. Id. at 36. Myers requested that the court sentence him at the
low end of his guideline range, arguing that the PSI overrepresented his criminal
history. Id. at 37. The government asserted that the court should sentence Myers
at the high end of his guideline range because: (1) Myers was serving a term of
supervised release when he committed his present offenses; and (2) Myers’s
fraudulent scheme was extensive, causing significant harm in a number of states.
Id. at 37-38. The district court then sentenced Myers to a term of 96 months of
imprisonment and 5 years of supervised release, noting that: (1) Myers’s scheme
was extensive, targeting a large number of Wal-Mart stores and utilizing numerous
homeless individuals to perpetrate fraud; (2) Myers had previous convictions in
two federal courts, including a conviction for failure to appear; and (3) Myers was
on supervised release for federal offenses at the time he committed his present
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offenses. Id. at 38-41. The district court specified that its sentence would run
consecutively to the sentence imposed upon revocation of Myers’s supervised
release and to any sentence imposed in any jurisdiction based on his fraudulent
scheme. Id. at 40-41. The district court provided the following explanation for its
sentence:
It is the judgment of this Court that a guideline sentence is
inappropriate and that a sentence above the Guidelines is needed to
reflect the seriousness of the offense, promote respect for the law, and
provide just punishment to afford adequate deterrence to criminal
conduct and to protect the public from your further crimes.
Apparently, we have been unsuccessful in protecting the public from
your further crimes by punishing you before and putting you on
supervised release, only to have you continue to perpetrate crimes
against the United States. So, a sentence within the Guidelines does
not do that.
Id. at 40.
Myers objected to his sentence as unreasonable because it was above his
guideline range. Id. at 43. In its order, the district court specified that the 96-
month sentence would run “consecutively to the federal revocation yet to be
imposed in the Northern District of Ohio, or any other jurisdiction where charges
are brought, related to this case.” Doc. 128 at 2. Myers did not object to the
district court’s determination that his sentence would be served consecutively to
any future sentence imposed for related conduct. See generally Doc. 160-2.
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II. DISCUSSION
A. Reasonableness of Sentence
We review a defendant’s sentence for reasonableness. Gall v. United States,
552 U.S. 38, ___, 128 S. Ct. 586, 594 (2007); United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005) (per curiam). Review for reasonableness is deferential.
Talley, 431 F.3d at 788. The reasonableness of a sentence is reviewed under an
abuse-of-discretion standard, regardless of whether the sentence imposed is inside
or outside a defendant’s guideline range. United States v. Pugh, 515 F.3d 1179,
1189 (11th Cir. 2008) (citing Gall, 552 U.S. at ___, 128 S.Ct. at 591). Under the
abuse-of-discretion standard, we will reverse only if the district court made a clear
error of judgment. Id. at 1191. “[A] sentence may be substantively unreasonable,
regardless of the procedure used.” United States v. Hunt, 459 F.3d 1180, 1182 n.3
(11th Cir. 2006).
The party challenging the sentence “bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Talley, 431 F.3d at 788. Section 3553(a) provides that, in imposing a
sentence, a district court must consider:
(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)
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the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the
Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims.
Id. at 786. We have recognized that “there is a range of reasonable sentences from
which the district court may choose.” Id. at 788. Where the court imposes a
sentence that is within the guideline range, we ordinarily expect that sentence to be
reasonable. Id. Where the sentence imposed is outside the guideline range, we
may not presume the sentence is unreasonable. Gall, 552 U.S. at ___, 128 S.Ct.
at 597. We may, however, consider the extent of the variance, giving due
deference to the district court’s determination that the § 3553(a) factors justify the
extent of the variance. Id.
District courts may determine, on a case-by-case basis, the relative weight to
give to the guidelines, as long as this determination is made with reference to the
§ 3553(a) factors. Hunt, 459 F.3d at 1185. We have rejected a defendant’s
argument that a district erred by varying above his guideline range based on his
criminal history, even though his criminal history already was reflected in his
guideline range. See United States v. Williams, 526 F.3d 1312, 1324 (11th Cir.
2008). Moreover, § 3553(a)(1) requires that the district court consider “the nature
and circumstances of the offense and the history and circumstances of the
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defendant.” 18 U.S.C. § 3553(a)(1).
As an initial matter, we note that Myers challenges only the substantive
reasonableness of his sentence, not its procedural reasonableness. See United
States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008) (explaining that a
procedural error would include a district court failing to calculate, or improperly
calculating, a defendant’s guideline range; treating the guidelines as mandatory;
failing to consider the § 3553(a) factors; choosing a sentence based on clearly
erroneous facts; or failing to explain its chosen sentence). Accordingly, Myers has
abandoned any claim as to the procedural reasonableness of his sentence. United
States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003) (stating that a party
abandons an issue if he does not raise it in his initial brief).
Here, Myers has failed to meet his burden of demonstrating that his sentence
was substantively unreasonable. Because Myers led others in an extensive
fraudulent scheme, resulting in a loss amount of almost $95,000, had a lengthy
criminal history, and committed his present offenses while serving a term of
supervised release for another federal offense, the court did not abuse its discretion
in determining that a 96-month sentence was necessary to deter criminal behavior
and promote respect for the law. Williams, 526 F.3d at 1322-23 (finding that a
sentence above the guidelines range was not unreasonable where the district court
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considered several of the § 3553 factors in determining the sentence).
Moreover, the district court did not abuse its discretion in determining that
Myers’s guideline range failed to serve the purposes of sentencing in this case, and
did not improperly consider Myers’s criminal history and supervised release
violations for purposes of an upward variance, despite the fact that his criminal
history was used to calculate his guideline range. Id. at 1323-24. While Myers
contends that his sentence necessarily exceeds those received by similarly situated
defendants because the court varied above his guideline range based on factors that
were used to calculate his guideline range, his argument lacks merit because, as
noted previously, a district court does not abuse its discretion in considering a
factor used to calculate a defendant’s guideline range for purposes of an upward
variance under § 3553(a). Id.
Because the district court has the discretion to determine that a sentence
above a defendant’s guideline range is necessary to serve the purposes of
sentencing, the district court did not abuse its discretion in imposing an upward
variance, regardless of whether it based the variance on factors that also were used
to calculate Myers’s guideline range. Furthermore, given the serious and extensive
nature of Myers’s offense and his likelihood of recidivism, Myers has not met his
burden of demonstrating that his sentence was substantively unreasonable.
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B. Order That Sentence Run Consecutively to Future Sentence(s)
Where a defendant raises an argument for the first time on appeal, we review
for plain error only. United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir.
2007). “Under this standard, we may exercise our discretion to correct a forfeited
error where there is (1) an error, (2) that is plain, (3) that affects substantial rights
(which usually means that the error was prejudicial), and (4) that seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. In order
for an error to be “plain,” it must be contrary to controlling precedent or the clear
language of a statute or rule. United States v. Lett, 483 F.3d 782, 790 (11th Cir.
2007).
Under 18 U.S.C. § 3584(a), “[i]f multiple terms of imprisonment are
imposed on a defendant at the same time . . . the terms may run concurrently or
consecutively. . . . 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). In United States v. Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993),
we recognized that § 3584(a) does not precisely address whether a federal district
court possesses authority to order that its sentence run consecutively to an
unimposed, unrelated state sentence. We held that it does, primarily basing our
decision on principles of dual sovereignty and the need to protect both the federal
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and the state courts’ right to ensure that the defendant serve the entirety of his
federal and state sentences. See id. at 1507-10.
In United States v. Andrews, 330 F.3d 1305, 1306 (11th Cir. 2003), we
considered a similar case where a district court sentenced the defendant to 24
months of imprisonment upon revocation of his supervised release. Noting that
both federal and state charges had been filed against the defendant for the same
conduct by which he had violated the terms of his supervised release, the district
court ordered that his sentence run “consecutively to any other term of
imprisonment imposed for any criminal conduct that is the basis of the violation.”
Id. (quotation omitted). Relying on Ballard, we held that the district court
possessed the authority to order that its sentence run consecutively to any future
sentence imposed for related conduct. Id. at 1307-08. Although the district court
order at issue in Andrews appeared to implicate federal sentences that had not been
imposed, we did not specifically discuss the potential concerns that could arise
where a district court orders that its sentence run consecutively to an unimposed,
future federal sentence. See id. at 1306-07.
Nevertheless, Myers cannot show plain error because he cites no controlling
precedent holding that a district court may not order that its sentence run
consecutively to another district court sentence that has not yet been imposed.
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Lett, 483 F.3d at 790.
III. CONCLUSION
Myers has not met his burden of demonstrating that his sentence was
substantively unreasonable, and he cannot show that the district court plainly erred
by ordering that its sentence run consecutively to a future, unimposed federal
sentence. Accordingly, we AFFIRM the sentence imposed by the district court.
AFFIRMED.
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