United States v. Josny Charlestain ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16085
Non-Argument Calendar
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D.C. Docket No. 9:12-cr-80054-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSNY CHARLESTAIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 5, 2013)
Before TJOFLAT, DUBINA, and PRYOR, Circuit Judges.
PER CURIAM:
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Appellant Josny Charlestain appeals his 108-month above guideline-range
total sentence imposed by the district court for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and
possession of a firearm and ammunition by a person subject to a domestic violence
order, in violation of 18 U.S.C. § 922(g)(8). He argues that the district court erred
by admitting evidence about an unrelated 2009 murder for which he was charged
but not prosecuted, applying an aggravating role sentencing enhancement, and
imposing an unreasonable sentence which was far above the Guideline range. We
address each point in turn.
I.
We review a “district court’s application of the sentencing guidelines de
novo and its findings of fact for clear error.” United States v. Grant, 397 F.3d
1330, 1332 (11th Cir. 2005). Where a defendant raises a sentencing issue for the
first time on appeal, plain error review applies. See United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000). “For this Court to correct plain error:
(1) there must be error; (2) the error must be plain; and (3) the error must affect
substantial rights.” Id. at 1320 (internal quotation marks omitted).
Federal law provides that “[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
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purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661 (emphasis
added). That includes hearsay, so long as it is sufficiently reliable, and evidence
that may not be admissible at trial, as long as the defendant has a chance to rebut
the evidence. United States v. Baker, 432 F.3d 1189, 1253-54 & n.68 (11th Cir.
2005). The Supreme Court has noted that, at sentencing, the district court has
broad discretion to consider “the fullest information possible concerning the
defendant’s life and characteristics.” Pepper v. United States, 562 U.S. __, __, 131
S. Ct. 1229, 1235-36 (2011) (internal quotation marks omitted). We have held that
a court may even consider relevant acquitted conduct so long as that conduct is
proven by a preponderance of the evidence. See United States v. Faust, 456 F.3d
1342, 1348 (11th Cir. 2006).
The Guidelines similarly provide that in deciding whether to sentence a
defendant within or outside of the Guideline range, the court can consider any
information about the defendant’s background, character, and conduct, unless it is
otherwise illegal to do so. U.S.S.G. § 1B1.4. Moreover, under Federal Rule of
Criminal Procedure 32, the court may allow the parties to introduce evidence
regarding objections to the presentence investigation report (“PSI”) during
sentencing. Fed.R.Crim.P. 32(i)(2).
We conclude from the record that the district court did not err, plainly or
otherwise, in admitting evidence about the 2009 homicide because it was relevant
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to the district court’s consideration of the 18 U.S.C. § 3553(a) factors, such as
Charlestain’s background and characteristics, and the need to provide adequate
deterrence, prevent additional gun-related crimes, and protect the public.
II.
We review for clear error the district court’s determination that a defendant
is subject to an aggravating-role enhancement under U.S.S.G. § 3B1.1(c). United
States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000). We review the district
court’s application and legal interpretations of the Guidelines de novo. United
States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010).
Section 3B1.1(c) subjects a defendant to a two-level enhancement “[i]f the
defendant was an organizer, leader, manager, or supervisor in any criminal
activity” [other than one that involves five or more participants or is otherwise
extensive]. U.S.S.G. § 3B1.1(c). A defendant’s assertion of control over only one
other participant is sufficient to sustain a § 3B1.1(c) role enhancement.
Id. § 3B1.1, comment. (n.2); United States v. Mandhai, 375 F.3d 1243, 1248
(11th Cir. 2004). A “participant” is a person who is criminally responsible for the
offense, even if not convicted. U.S.S.G. § 3B1.1, comment. (n.1). In Mandhai, we
determined that the district court properly applied a § 3B1.1(c) enhancement where
the defendant recruited one other individual into a terrorist plot, prompted that
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individual to purchase weapons, and briefed him on the bombing plan. Mandhai,
375 F.3d at 1248.
We conclude from the record that the district court did not clearly err by
applying the aggravating role enhancement because it was entitled to conclude that
Charlestain directed his wife to buy the guns involved in the instant offenses.
III.
We review the sentence imposed by the district court for reasonableness and
evaluate the substantive reasonableness of a sentence for an abuse of discretion.
Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007); United States v.
Talley, 431 F.3d 784, 785 (11th Cir. 2005). Application of a variance is likewise
reviewed for abuse of discretion. Gall, 552 U.S. at 51, 128 S. Ct. at 597-98. After
Irizarry v. United States, 553 U.S. 708, 714-16, 128 S. Ct. 2198, 2202-04 (2008), a
district court’s grant of a variance does not require prior notice of the grounds
contemplated for a sentence above the range. We will only vacate a sentence when
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences.” United States v. Irey, 612 F.3d
1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted). We
review only a defendant’s final sentence, and not each individual decision made
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during the sentencing process, for reasonableness. See United States v. Dorman,
488 F.3d 936, 938 (11th Cir. 2007).
When reviewing a sentence, we must first determine that the “district court
committed no significant procedural error,” United States v. McGarity, 669 F.3d
1218, 1263 (11th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct.
378 (2012), and a sentence may be considered procedurally reasonable where the
district court considered the parties’ arguments and provided a reasoned basis for
its choice of sentence, see Rita v. United States, 551 U.S. 338, 356-58, 127 S. Ct.
2456, 2468-69 (2007). If the district court’s decision is procedurally reasonable,
our analysis then turns to the substantive reasonableness of the sentence. Gall, 552
U.S. at 51, 128 S. Ct. at 597. We review the totality of the facts and circumstances
to gauge for substantive error. Irey, 612 F.3d at 1189-90. “[T]he party who
challenges 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. 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 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 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
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avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786 (summarizing 18 U.S.C. § 3553(a)). In United States v. Scott, 426 F.3d
1324 (11th Cir. 2005), we noted that, “nothing in [United States v.] Booker[, 543
U.S. 220, 125 S. Ct. 738 (2005),] or elsewhere requires the district court to state on
the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” Id. at 1329. An acknowledgment that the
court considered the defendant’s arguments and the § 3553(a) factors is adequate
under Booker. Talley, 431 F.3d at 786.
“A district court abuses its discretion when it . . . gives significant weight to
an improper or irrelevant factor . . . .” Irey, 612 F.3d at 1189 (internal quotation
marks omitted). A sentence imposed well below the statutory maximum is an
indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008). When uncertainty exists as to whether the district court
applied an upward variance or an upward departure, the court considers:
(1) whether the court referenced a particular Guideline departure provision; and
(2) whether the court based its decision on a belief that the Guidelines were not
adequate. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).
We conclude from the record that Charlestain’s total sentence was
procedurally and substantively reasonable. First, the record demonstrates that the
district court imposed an upward variance rather than a departure, and as to
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procedural reasonableness, it correctly calculated the advisory Guideline range.
Charlestain has not met his burden of showing that his sentence was substantively
unreasonable. The court held two sentencing hearings, heard testimony from
numerous witnesses, considered the parties’ arguments, and discussed the
§ 3553(a) factors before deciding that a sentence above the Guideline range was
warranted to reflect the full extent of Charlestain’s criminal history, violent
characteristics, danger to the public, and the need for deterrence. In noting that it
had considered the parties’ positions, the Guidelines, and the statutory factors, the
court satisfied Talley. Charlestain’s sentence was also well below the statutory
maximum.
For the above-stated resons, we affirm Charlestain’s total sentence.
AFFIRMED.
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