USCA11 Case: 21-13385 Date Filed: 11/09/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13385
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOCELYN ANTONIA LYNCH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:21-cr-14004-JEM-1
____________________
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2 Opinion of the Court 21-13385
Before WILSON, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
Jocelyn Antonia Lynch appeals the 63-month total sentence
the district court imposed after she pled guilty to eight counts of
wire fraud. Her offense conduct arose out of a seven-year scheme
in which Lynch defrauded taxpayer clients who believed they were
making payments to settle outstanding debt owed to the Internal
Revenue Service (“IRS”). As part of this scheme, Lynch would tell
clients she had negotiated an agreement with the IRS and would
instruct clients to deposit payments into her personal bank ac-
count, but instead of forwarding the payments to the IRS, she
would keep the money for herself and would provide her victims
with fraudulent documents generated on her home computer that
purported to show receipts of payment by the IRS. After accepting
her guilty plea and holding a sentencing hearing, the district court
sentenced Lynch at the high end of the 51-to-63-month advisory
guidelines range.
On appeal, Lynch argues that: (1) her high-end guidelines-
range sentence was procedurally and substantively unreasonable
because the district court did not adequately consider the guide-
lines range, assess the fraud loss calculation, or address her mitigat-
ing factors, and her sentence was longer than necessary to achieve
the statutory goals of sentencing; and (2) her trial counsel provided
her with ineffective assistance by failing to object to any of these
alleged errors. After thorough review, we affirm.
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21-13385 Opinion of the Court 3
I.
When a defendant raises a sentencing argument for the first
time on appeal, we review only for plain error. United States v.
Castro,
455 F.3d 1249, 1253 (11th Cir. 2006). To establish plain er-
ror, the defendant must show (1) an error, (2) that is plain, and (3)
that affected his substantial rights.
Id. If the defendant satisfies
these conditions, we may exercise our discretion to recognize the
error only if it seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings.
Id. An error cannot be “plain” if it
is not clear and obvious under current law. United States v. Olano,
507 U.S. 725, 734 (1993); see also Castro,
455 F.3d at 1253 (stating
that, when the explicit language of a statute or rule does not specif-
ically resolve an issue, there can be no plain error if there is no prec-
edent from the Supreme Court or this Court directly resolving it).
We review de novo a claim that the district court failed to
adequately explain its chosen sentence, regardless of whether the
defendant objected on this ground at sentencing. United States v.
Bonilla,
463 F.3d 1176, 1181 & n.3 (11th Cir. 2006). We review
the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United
States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v.
United States,
551 U.S. 338, 351 (2007)).
“Whether a criminal defendant’s trial counsel was ineffec-
tive is a mixed question of law and fact, subject to de novo review.”
Nixon v. Newsome,
888 F.2d 112, 115 (11th Cir. 1989).
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4 Opinion of the Court 21-13385
II.
First, we are unpersuaded by Lynch’s claim that her sen-
tence is unreasonable. In reviewing sentences for reasonableness,
we perform two steps. Pugh,
515 F.3d at 1190. First, we “‘ensure
that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guide-
lines range, treating the Guidelines as mandatory, failing to con-
sider the § 3553(a) factors, selecting a sentence based on clearly er-
roneous facts, or failing to adequately explain the chosen sentence
-- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). 1
The district court need not explicitly say that it considered the §
3553(a) factors, as long as the court’s comments show it considered
the factors when imposing sentence. United States v. Dorman,
488
F.3d 936, 944 (11th Cir. 2007). Generally, “[a]n acknowledgment
the district court has considered the defendant’s arguments and the
1 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sen-
tence 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 the
sentence imposed to afford adequate deterrence; (4) the need to protect the
public; (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) the pertinent policy statements of the Sentencing Com-
mission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims.
18 U.S.C. § 3553(a).
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21-13385 Opinion of the Court 5
§ 3553(a) factors will suffice.” United States v. Gonzalez,
550 F.3d
1319, 1324 (11th Cir. 2008).
Notably, one of the factors we’ve said the district court must
consider -- at least in the context of a supervised-release revocation
hearing -- is the sentencing range established by the applicable
guidelines. United States v. Campbell,
473 F.3d 1345, 1348 (11th
Cir. 2007); see also Gall,
552 U.S. at 49 (stating that “the Guidelines
should be the starting point and the initial benchmark” of any sen-
tence). In Campbell, the defendant had violated the terms of his
supervised release by committing additional crimes, but before he
could be taken into federal custody, he was sentenced to five years
in state prison.
473 F.3d at 1346–47. Upon his release from state
prison, he was taken into federal custody for a revocation hearing.
Id. at 1347. At the revocation hearing, the district court discussed
Campbell’s criminal conduct that had occurred before his 5 years
in state prison and then found that the § 3553(a) factor concerning
the protection of society warranted a sentence of 24 months’ im-
prisonment. Id.
On appeal, we vacated Campbell’s sentence and remanded
for resentencing because we found no indication that the district
court had considered the guidelines at the revocation hearing. Id.
at 1349. We recognized that it would have been sufficient if there
had been some indication that the district court was aware of and
considered the guidelines. Id. But at Campbell’s hearing, the dis-
trict court never explicitly mentioned Campbell’s advisory guide-
lines range, never said the word “Guidelines,” and never
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6 Opinion of the Court 21-13385
mentioned the criminal classification of the crime for which Camp-
bell’s supervised release had been revoked. Id.
We’ve also held, however, that the guidelines do not require
a precise determination for loss. United States v. Barrington,
648 F.3d 1178, 1197 (11th Cir. 2011). Rather, “[a] sentencing court
need only make a reasonable estimate of the loss, given the availa-
ble information.”
Id. (quotations omitted). Thus, we’ve held that
the district court’s loss estimate was reasonable where it was based
on reliable, specific evidence.
Id. at 1198; see also United States v.
Liss,
265 F.3d 1220, 1231 (11th Cir. 2001) (explaining that restitution
“must be based on the amount of loss actually caused by the de-
fendant’s conduct”).
If we conclude that the district court did not procedurally
err, we consider the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard,” based on the “to-
tality of the circumstances.” Pugh,
515 F.3d at 1190 (quotations
omitted). “[W]e will not second guess the weight (or lack thereof)
that the [court] accorded to a given [§ 3553(a)] factor . . . as long as
the sentence ultimately imposed is reasonable in light of all the cir-
cumstances presented.” United States v. Snipes,
611 F.3d 855, 872
(11th Cir. 2010) (quotations, alteration and emphasis omitted).
The court need not give all factors equal weight and has discretion
to attach great weight to one factor over another. United States v.
Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015).
However, a court may abuse its discretion if it (1) fails to
consider relevant factors that are due significant weight, (2) gives
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21-13385 Opinion of the Court 7
an improper or irrelevant factor significant weight, or (3) commits
a clear error of judgment by balancing a proper factor unreasona-
bly. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc). Also, a court’s unjustified reliance on any one § 3553(a) fac-
tor may be a symptom of an unreasonable sentence. United States
v. Crisp,
454 F.3d 1285, 1292 (11th Cir. 2006). We will vacate a
sentence as substantively unreasonable 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 arriv-
ing at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” Irey,
612 F.3d at 1190 (quotations
omitted). We ordinarily expect a sentence within the guidelines
range to be reasonable. United States v. Gonzalez,
550 F.3d 1319,
1324 (11th Cir. 2008). The party challenging the sentence bears
the burden of showing it is unreasonable.
Id.
A criminal defendant who wants to “preserve a claim of er-
ror” for appellate review must inform the district court “of [(1)] the
action the party wishes the court to take, or [(2)] the party’s objec-
tion to the court’s action and the grounds for that objection.” Fed.
R. Crim. P. 51(b). A defendant’s argument for a specific sentence
adequately informs the district court of the action she wishes the
court to take as well as the grounds for her objection and accord-
ingly preserves for appeal a claim that her sentence is unreasonably
long. Holguin-Hernandez v. United States,
140 S. Ct. 762, 764, 766
(2020). Issues not raised in an initial brief on direct appeal are
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8 Opinion of the Court 21-13385
typically deemed forfeited. United States v. Campbell,
26 F.4th
860, 873 (11th Cir. 2022).
Here, Lynch’s 63-month total sentence was procedurally
and substantively reasonable. As an initial matter, Lynch did not
raise before the district court the arguments she now makes. Nor
did she argue for a specific sentence. Thus, we review her argu-
ments only for plain error. See Fed. R. Crim. P. 51(b); see also Hol-
guin-Hernandez, 26 F.4th at 873.
As for Lynch’s claim that the district court plainly erred by
failing to adequately consider the guidelines range, it lacks merit.
The record reflects that the district court expressly said that it had
reviewed, inter alia, the presentence investigation report (“PSI”),
“which contains the advisory guidelines.” The court added that it
had considered the statements of the parties, including that of the
government, which argued for a sentence at the high end of the
guidelines range. We recognize that neither party mentioned “63
months,” which was the top of the guidelines range as recom-
mended in the PSI. But, when the district court -- after overruling
Lynch’s lone objection to the PSI and implicitly agreeing with the
government that a sentence at the high end of the guidelines range
would be appropriate -- sentenced Lynch to 63 months’ imprison-
ment, it demonstrated that it had considered the guidelines range
and that it had used the guidelines as a benchmark. Unlike in
Campbell, where the district court adopted the government’s rec-
ommended sentence without ever mentioning the guidelines, the
district court here referred to the guidelines, discussed the
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21-13385 Opinion of the Court 9
underlying crime, and sentenced Lynch to the top of the guidelines
range without needing a numerical prompt from the government.
In any event, because Lynch has identified no law holding that a
district court errs by failing to explicitly state its guidelines calcula-
tions or announce its adoption of the PSI’s calculations, she has not
shown any plain error in this respect. Castro,
455 F.3d at 1253.
We also disagree with Lynch’s argument that the district
court plainly erred by failing to assess the loss amount. As we’ve
explained, Barrington does not hold that a sentencing court is re-
quired to go through its loss assessment for the record, and Lynch
has cited no other law to support this argument. Further, Lynch
stipulated in her plea agreement to the loss calculation, and the
court discussed that calculation throughout sentencing without ob-
jection, reflecting that the court had assessed the losses and that
they were undisputed. And to the extent Lynch challenges the
court’s factual findings as to the loss amount, the court based its
loss estimate on reliable, specific evidence that Lynch had agreed
to, which was not plain error. See Barrington,
648 F.3d at 1198;
Liss,
265 F.3d at 1231.
Nor did the district court plainly err by failing to discuss
Lynch’s mitigating factors. Once again, Lynch has cited no law
holding that a district court must expressly discuss a defendant’s
mitigating circumstances for the record. To the extent a defend-
ant’s mitigating circumstances go to her history and characteristics,
which sentencing courts must consider,
18 U.S.C. § 3553(a)(1),
we’ve held that a district court need not explicitly refer to each of
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10 Opinion of the Court 21-13385
the § 3553(a) factors individually, so long as the court considers
them all. Dorman,
488 F.3d at 944. The record here reflects that
the district court said it had considered the § 3553(a) factors and
had reviewed the government’s sentencing memorandum, which
contained some of Lynch’s mitigating factors, as well as Lynch’s
objections to the PSI, which contained the rest. Thus, the court did
not plainly err by failing to consider the § 3553(a) factors.
As for Lynch’s claim that the district court substantively
erred by imposing a sentence that was unreasonably long, we are
likewise unpersuaded. Lynch’s 63-month sentence was within the
guidelines range, and we ordinarily expect a guidelines-range sen-
tence to be reasonable. See Gonzalez,
550 F.3d at 1324. And Lynch
has offered no reason for us to consider her sentence extraordinary.
Rather, the court made it clear that it considered Lynch’s crime --
in which she stole hundreds of thousands of dollars over seven
years by deceiving people who trusted her and were trying to do
the right thing by paying their tax debt to the government, damag-
ing their financial and emotional wellbeing, and often devastating
their lives -- both “horrible” and an “outrage.” In so doing, the dis-
trict court justified the sentence in terms of the need for the sen-
tence imposed to reflect the severity of the offense, as it had the
discretion to do.
18 U.S.C. § 3553(a)(2)(A). Thus, under the totality
of these circumstances, Lynch’s 63-month, guidelines-range total
sentence was substantively reasonable.
Lynch also raises in her reply brief a claim that the record is
insufficient for meaningful appellate review. To the extent she’s
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21-13385 Opinion of the Court 11
preserved this argument, we disagree. As the record reveals, the
district court thoroughly explained its basis for imposing its chosen
sentence, engaged with Lynch’s arguments, and said that it had
considered the § 3553(a) factors. In short, we are unconvinced by
any of Lynch’s challenges to her sentence.
III.
Finally, we decline to consider Lynch’s claim that her trial
counsel provided her with ineffective assistance. We’ve long held
that we generally will not consider claims of ineffective assistance
raised on direct appeal where the district court did not entertain
the claim nor develop a factual record. United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). We will, however, consider
those claims on direct appeal “[i]f the record is sufficiently devel-
oped.”
Id. The preferred means for deciding a claim of ineffective
assistance of counsel is through a
28 U.S.C. § 2255 motion, “even if
the record contains some indication of deficiencies in counsel’s per-
formance.” United States v. Patterson,
595 F.3d 1324, 1328 (11th
Cir. 2010) (quotations omitted).
Here, we decline to consider Lynch’s ineffectiveness claim
on direct appeal. As the record reveals, the issue was not raised
before the district court, and the court did not have an opportunity
to entertain the claim or develop the record.
Accordingly, we affirm Lynch’s 63-month total sentence.
AFFIRMED.
