United States v. Jimmy Lee Everett , 368 F. App'x 952 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13443 ELEVENTH CIRCUIT
MARCH 16, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket Nos. 07-00031-CR-WTM-GRS-3-6,
08-00063 CR-WTM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY L. EVERETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 16, 2010)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
In June 4 2008, Jimmy L. Everett pled guilty to one count of a multi-count
indictment, Count 6, which charged him with trafficking a vehicle with an altered
vehicle identification number, and on June 28, 2008, Everett pled guilty to one
count of a multi-count indictment, Count 13, which charged him with bank fraud.
On June 24, 2009, the district court sentenced him to concurrent prison terms of
108 months on Count 6 and 110 months on Count 13. He now appeals the
sentence he received on Count 6, claiming that it is both procedurally and
substantively unreasonable.1
A sentence is procedurally unreasonable if the district court fails to calculate
or improperly calculates the Guidelines sentence range, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, selects a sentence based on
clearly erroneous facts, or fails to explain adequately the chosen sentence,
including an explanation for any deviation from the sentence range. United States
v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). Everett contends that the Count
6 sentence is procedurally unreasonable because the district court misapplied
U.S.S.G. §§ 2B1.1 and 3B1.1. We are not persuaded.
As noted above, Count 6 was part of a multi-count indictment. Count 1
charged Everett and 22 others, allegedly members of an auto-theft ring, with
conspiring to traffick in vehicles with altered vehicle identification numbers.
1
Everett’s opening brief contains no argument relating to the sentence the court imposed
on Count 13.
2
Count 6 was one of three substantive trafficking offenses with which Everett was
charged. In calculating the total offense level for Count 6 under the Sentencing
Guidelines, the district court enhanced the base offense level by 14 levels pursuant
to U.S.S.G. § 2B1.1 based on the $801,419.39 intended loss attributable to
Everett’s participation in the auto theft ring, instead of the $332,450.54 actual loss.
Everett argues that the court erred in considering the intended loss instead of
the actual loss, that a sentencing court should not be permitted to consider the
intended loss when a precise actual loss calculation is readily available. The
Guidelines define “actual loss” as the “reasonably foreseeable pecuniary harm that
resulted from the offense.” U.S.S.G. § 2B1.1, comment. (n.3(A)(i)). “Intended
loss” is “the pecuniary harm that was intended to result from the offense,” and
“includes intended pecuniary harm that would have been impossible or unlikely to
occur.” U.S.S.G. § 2B1.1, comment. (n.3(A)(ii)). The Guidelines specify that loss
equals the greater of actual loss or intended loss. U.S.S.G. § 2B1.1, comment.
(n.3)(A).2
2
We have upheld consideration of intended loss when enhancing a sentence under §
2B1.1, even where precise actual loss calculations are available. See United States v. Willis, 560
F.3d 1246, 1248-50 & n.6 (11th Cir. 2009) (affirming a 14-level enhancement based on intended
loss of $524,000 when there was available evidence that the victim’s actual loss was
$79,607.45).
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In this case, therefore, the district court committed no error in enhancing the
base offense level for the intended loss as opposed to the actual loss. Having
reached this conclusion, we turn to Everett’s argument that the court committed
procedural error by misapplying U.S.S.G. § 3B1.1 in finding that he was a “leader”
of the auto theft ring.
Where “the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive,” the court must
increase the base offense level by four levels. U.S.S.G. § 3B1.1(a). Where “the
defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive,” a
three-level enhancement applies. Id. § 3B1.1(b).
The commentary to § 3B1.1 states that, in distinguishing a leadership and
organizational role from one of mere management or supervision,” the court should
consider: (1) the exercise of decision making authority; (2) the nature of
participation in the commission of the offense; (3) the recruitment of accomplices;
(4) the claimed right to a larger share of the fruits of the crime; (5) the degree of
participation in planning or organizing the offense; (6) the nature and scope of the
illegal activity; and (7) the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). The commentary further states that “[t]here
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can, of course, be more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy.” Id.
The record shows that Everett both participated in, and exercised authority
over, nearly every aspect of the auto theft ring. Moreover, he failed to object to
many of the factual findings underlying these points prior to or at the sentencing
hearing. Having considered these facts and the factors set forth in the commentary
to § 3B1.1, we conclude that the district court did not err in applying a four-level
leadership enhancement for Everett’s role in the auto theft ring.
In sum, because the district court properly calculated the Guidelines
sentence range, treated the Guidelines as advisory (not mandatory), had a sound
factual predicate on which to base its sentence, fully considered the § 3553(a)
factors and explained the sentence it chose to impose, Everett’s Count 6 sentence is
not procedurally unreasonable.
A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008) (quotation omitted). Pursuant to § 3553(a), the district court shall
impose a sentence “sufficient, but not greater than necessary,” to comply with the
purposes of sentencing listed in § 3553(a)(2), namely, reflecting the seriousness of
the offense, promoting respect for the law, providing just punishment for the
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offense, deterring criminal conduct, protecting the public from future criminal
conduct by the defendant, and providing the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2). The court must
also consider the following factors in determining a particular sentence: the nature
and circumstances of the offense and the history and characteristics of the
defendant, the kinds of sentences available, the applicable guidelines range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwanted sentencing disparities, and the need to provide restitution to victims. See
18 U.S.C. § 3553(a)(1), (3)-(7).
It is clear from the sentencing record before us that the district court
intended that the Count 6 sentence achieve the sentencing objectives of §
3553(a)(2), in particular the objectives set forth in § 3553(a)(2)(A),(B), and (C).
We therefore find nothing in the record supporting Everett’s claim that the Count 6
sentence is substantively unreasonable.
AFFIRMED.
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