United States v. Dominic Vincent Grasso , 649 F. App'x 778 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14453
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00040-LC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINIC VINCENT GRASSO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 5, 2016)
Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Dominic Grasso appeals his 60-month concurrent sentences, imposed above
the guideline range, for making and uttering counterfeit currency. He argues the
district court erred when it considered rehabilitation in imposing these sentences.
He further argues that the district court abused its discretion in imposing above-
guidelines sentences based on Grasso’s extensive criminal history. Upon review of
the record and the parties’ arguments, we affirm.
I.
We review de novo whether a factor considered by the district court in
sentencing is impermissible. United States v. Velasquez, 524 F.3d 1248, 1252
(11th Cir. 2008). However, arguments not raised before the district court are
reviewed for plain error. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005). Plain error occurs where: (1) there is an error; (2) that is plain; (3) that
affects the defendant’s substantial rights; and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. An error affects
substantial rights only when it affects the outcome of the proceedings. United
States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508
(1993).
Under the invited error doctrine, we may not review on appeal any error that
the complaining party induced or invited the district court to make. United States
v. Harris, 443 F.3d 822, 823-24 (11th Cir. 2006). Even if a party does not induce
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the district court into making an error, invited error exists when a party
affirmatively accepts the district court’s proposal. See United States v. Fulford,
267 F.3d 1241, 1247 (11th Cir. 2001) (holding that a defendant invited the error
when he indicated that jury instructions were acceptable to him).
A sentencing court may not impose or lengthen a prison term in order to
promote an offender’s rehabilitation. Tapia v. United States, 564 U.S. ___, 131 S.
Ct. 2382, 2391, 180 L. Ed. 2d 357 (2011). Moreover, we have held that “Tapia
error occurs where the district court considers rehabilitation when crafting a
sentence of imprisonment,” not merely when it tailors the length of the sentence to
permit completion of a rehabilitation program, or makes rehabilitation the
dominant factor in reaching its sentencing determination. United States v.
Vandergrift, 754 F.3d 1303, 1310 (11th Cir. 2014) (emphasis in original). A court
may not consider rehabilitation “when determining whether to impose or lengthen
a sentence of imprisonment.” Id. “Because it is impermissible to consider
rehabilitation, a court errs by relying on or considering rehabilitation in any way
when sentencing a defendant to prison.” Id. at 1311. We may affirm a sentence
based on both proper and improper factors so long as the record reflects that the
improper factors did not affect or influence the district court’s sentence. United
States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994).
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Grasso’s and his counsel’s remarks are most reasonably construed as asking
the district court to impose a lower sentence due to his drug addiction or
recommend that he be able to participate in the Federal Residential Drug Abuse
Program. The district court erred by stating that one of the factors it considered in
imposing the sentence was “to provide [Grasso] with the needed substance abuse
treatment during this period of incarceration.” Assuming that error was plain for
the sake of analysis, Grasso has not shown that the district court’s error affected his
substantive rights. The district court imposed an above-guidelines sentence “based
upon the extensive criminal history.” Because rehabilitation was a minor
consideration in the district court’s decision, Grasso has not met the third prong of
the plain error test.
II.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591, 169 L. Ed. 2d 445 (2007). The party challenging the sentence has the
burden of establishing that the sentence was unreasonable. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). 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). The district court is required to impose a
sentence “sufficient, but not greater than necessary, to comply with the purposes”
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listed in 18 U.S.C. § 3553(a)(2). Id. We will vacate the sentence “if, but only if,
we are 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 dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation
omitted).
Where a district court correctly calculates the advisory guideline range,
considers the adequacy of the guidelines in light of the evidence and the § 3553(a)
factors, and imposes a sentence outside the guideline range because the range does
not adequately address a factor under § 3553(a), it has imposed a variance, not a
guidelines departure. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir.
2006). A sentencing court does not err when it fails to follow proper procedures
for imposing a departure when it imposes a variance under § 3553(a). Id.
Here, the district court did not abuse its discretion by imposing an upward
variance from the guideline range in order to compensate for the fact that the
guidelines did not adequately reflect the severity of Grasso’s criminal history.
Because it imposed a variance, and not a departure, it was not required to follow
the procedure for an upward departure detailed in U.S.S.G. § 4A1.3. The district
court noted that Grasso had nearly three times the criminal history points required
for the highest criminal history category, and that several prior convictions were
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for similar offenses. The district court imposed sentences well below the statutory
maximum of 30 years’ imprisonment in total, which is further evidence of the
sentences’ reasonableness. It considered the 3553(a) factors, including the need to
protect the public and to deter future crimes, and imposed substantively reasonable
sentences.
AFFIRMED.
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