United States v. Mitchell L. Anderson , 216 F. App'x 886 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 7, 2007
No. 06-14165 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00023-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHELL L. ANDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(February 7, 2007)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Mitchell Anderson (“Anderson”) appeals his 48-month sentence
for possession of counterfeit identification documents, in violation of 18 U.S.C. §
1028(a)(3). Law enforcement officials found Anderson and a codefendant in
possession of 16 counterfeit driver’s licenses bearing 16 different names, and 36
counterfeit checks fraudulently taken from legitimate account holders, totaling
$13,670.81 in loss. The government determined that the offense affected at least
36 victims, including 16 account holders, 7 financial institutions, and 13 retailers.1
Anderson first argues that a district court’s decision to depart upwardly,
without giving him notice of such an intention, is plain error requiring remand.
We review for plain error where the defendant does not state the grounds for
an objection in the district court. United States v. Zinn, 321 F.3d 1084, 1087 (11th
Cir. 2003). We will correct plain error when “(1) an error occurred, (2) the error
was plain, and (3) the error affected substantial rights.” Id.Fed.R.Crim.P. 32(h) states that
Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or
in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure. The notice
must specify any ground on which the court is contemplating a
departure.
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Anderson’s plea agreement contained a sentencing appeal waiver. However, because
the waiver contained an exception allowing Anderson to appeal sentencing issues if the district
court’s sentence exceeded the guideline range, and his sentence of 38 months imprisonment
exceeded the guideline range of 21-27 months imprisonment, his appeal may proceed on the
merits.
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Fed.R.Crim.P. 32(h). We have held that Fed.R.Crim.P. 32(h) does not require the
district courts to give notice of the fact that they are going to impose a variance, or
a sentence above the guideline range, pursuant to their authority under 18 U.S.C.
§ 3553(a).2 See United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006),
pet. for cert. filed, Oct. 26, 2006 (No. 06-7517). After the Supreme Court decided
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
we reasoned that defendants are aware that the district court will consider the
§ 3553(a) factors when selecting a reasonable sentence between the statutory
minimum and maximum. Irizarry, 458 F.3d at 1212.
Because the district court imposed the sentence above the guideline range
pursuant to its authority under 18 U.S.C. § 3553(a), we conclude that there was no
error in its failure to give advanced notice of its intention to impose a sentence
above the guideline range.
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Section 3553(a) requires that the district court consider:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence
imposed 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 from
further crimes of the defendant; (5) the need to provide the
defendant with 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 unwarranted sentencing
disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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Anderson next argues that his sentence must be reversed because the district
court made an unguided departure when it imposed his sentence.
Once the district court has accurately calculated the guidelines range, it
“may impose a more severe or more lenient sentence” that we will review for
reasonableness. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).
Our reasonableness inquiry is guided by the factors outlined in 18 U.S.C.
§ 3553(a). United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005).
As noted above, because the sentence was fashioned pursuant to § 3553(a),
and the district court used those factors as a guide, the imposition of Anderson’s
sentence above the guideline range did not amount to an unguided departure.
Anderson next argues that the district court was unreasonable in imposing an
upward departure because his guideline range sentence had taken into account his
criminal history. Additionally, Anderson argues that he had only two prior
convictions, which did not justify a doubling of his sentence from the advisory
guideline range.
We review the final sentence imposed for reasonableness. Crawford, 407
F.3d at 1178. Thus, the district court is free to sentence above the guideline range
after correctly calculating the guideline range, so long as the sentence is
reasonable. Id. Section § 3553(a) requires that the district court take into account,
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inter alia, the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1).
Given that the district court took into account the § 3553(a) factors,
explicitly recognized that Anderson had a history of engaging in fraudulent
schemes, specifically the fact that he had been arrested a year earlier for a nearly
identical crime, and provided an adequate explanation for imposing a sentence
above the guideline range, we hold that Anderson’s sentence was reasonable.
Anderson next argues that, despite his cooperation with authorities, the
government breached the plea agreement by failing to move for a downward
departure, pursuant to U.S.S.G. § 5K1.1, based on substantial assistance. In
addition, Anderson argues that the district court erred in failing to downwardly
depart.
“Whether the government has breached a plea agreement is a question of
law that this [C]ourt reviews de novo.” United States v. Mahique, 150 F.3d 1330,
1332 (11th Cir. 1998). However, when there was no objection below, we review
for plain error. Zinn, 321 F.3d at 1087. The government does not breach a plea
agreement by failing to move for downward departure based on substantial
assistance where the agreement provided only that the government would consider
whether the defendant’s cooperation qualified for substantial assistance and that
this determination was solely for the government. See United States v. Forney, 9
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F.3d 1492, 1499 (11th Cir. 1993).
We conclude from the record that the government did not breach the plea
agreement by failing to file a U.S.S.G. § 5K1.1 motion for a downward departure
because, by the terms of the plea agreement, it was not under an affirmative
obligation to do so. Moreover, the district court did not fail to address his motion
because only the government can make such a motion. See U.S.S.G. 5K1.1.
Anderson finally argues that the district court incorrectly held him
accountable for loss generated by his codefendant and, further, the district court
incorrectly held him accountable for victims whose losses were duplicative of one
particular act.
We review a district court’s loss determination for clear error. United States
v. Goldberg, 60 F.3d 1536, 1539 (11th Cir.1995). If the defendant challenges the
amount of loss, the government has the burden of supporting its loss calculation
with “reliable and specific evidence.” United States v. Cabrera, 172 F.3d 1287,
1292 (11th Cir. 1999) (citation omitted). “A sentencing court must make factual
findings sufficient to support the government’s claim of the amount of fraud loss
attributed to a defendant in a PSI.” Id. at 1294. See United States v. Liss, 265 F.3d
1220, 1231 (11th Cir. 2001) (remanding case because the district court failed to
make factual findings in support of the government’s claim detailed in the PSI).
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As to victim loss contested by a defendant, “when a defendant alleges a factual
inaccuracy in the PSI, the district court must either make a written factual finding
on the contested matter or a determination that no such finding is necessary as the
matter will not be taken into consideration in sentencing.” United States v. Funt,
896 F.2d 1288, 1299 (11th Cir. 1990). Similarly, in the context of reviewing the
denial of safety valve relief under U.S.S.G. § 5C1.2, we found that we could not
“engage in meaningful appellate review of a sentence unless the district court sets
out the facts underpinning the guidelines it applied in fashioning the defendant’s
sentence or the record plainly establishes such facts.” United States v. Reid, 139
F.3d 1367, 1368 (11th Cir. 1998).
After reviewing the record, we conclude that the district court erred only as
to the lack of factual findings by the district court to support the amount of loss and
victim impact.
Specifically, the district court erred regarding the amount of loss and victim
impact that was used to calculate Anderson’s guideline range because, after
Anderson challenged the district court’s guideline calculations, the government put
forward no evidence and the district court made no factual findings regarding the
amount of loss and victim impact. Accordingly, we affirm Anderson’s sentence,
but vacate and remand for the district court’s determination regarding amount of
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loss and victim impact.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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