USCA11 Case: 22-12163 Document: 30-1 Date Filed: 05/18/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12163
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE DEMPS,
a.k.a. Willie Samuel Demps, Jr.,
a.k.a. Willie S. Demps,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
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2 Opinion of the Court 22-12163
D.C. Docket No. 4:21-cr-00031-CDL-MSH-1
____________________
Before NEWSOM, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Willie Demps appeals his total sentence of 145 months’ im-
prisonment, an upward variance from the guideline range of 97 to
121 months, for one count of conspiracy to commit bank fraud and
two counts of tax evasion. Demps argues that his sentence is pro-
cedurally unreasonable because the District Court did not suffi-
ciently explain its reasoning for imposing an upward variance or
imposing partly consecutive sentences for tax fraud charges that
are typically served concurrently. Demps also argues that his sen-
tence is substantively unreasonable because it punished him exces-
sively for his role in a conspiracy that was already the basis for an
enhancement and was not grounded in facts from the presentence
investigation report. Finally, Demps alleges that the Court focused
solely on the seriousness of his offense and did not sufficiently con-
sider other
18 U.S.C. § 3553(a) factors.
I.
A grand jury in the Middle District of Georgia returned a
71-count indictment against Willie Demps and seven co-conspira-
tors. The government later issued a superseding information
against Demps, charging him with one count of conspiracy to
commit bank fraud, in violation of
18 U.S.C. §§ 1344(2) and 1349
and two counts of tax evasion, in violation of
26 U.S.C. §7201.
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22-12163 Opinion of the Court 3
Demps pleaded guilty to all three counts pursuant to a plea agree-
ment. As part of his plea agreement, Demps stipulated to a base
offense level of seven for Count One under U.S.S.G. § 2B1.1(a)(1),
as well as the following enhancements to the Count One base of-
fense level: a 16-level enhancement under § 2B1.1(b)(1)(I) for a loss
between $1.5 and $3.5 million; a four-level increase under §3B1.1(a)
because Demps was an organizer or leader of a criminal activity
that involved five or more participants; and a two-level increase un-
der § 3B1.3 for abusing a position of public trust.
The presentence investigation report (the “PSR”) described
Demps’s conduct as follows. Demps was a 30-year employee with
the Muscogee County, Georgia Clerk’s Office and had risen to the
level of Chief Deputy Clerk. As part of this job, Demps received
funds and maintained deposits to various Clerk’s Office accounts;
he was subject to no oversight regarding bank deposits or his man-
agement of the accounts. Money from fines, forfeitures, and con-
demnations were given to Demps for deposit.
Upon her election as Clerk of Court in 2018, Danielle Forte
observed money being handled incorrectly and requested an audit,
which revealed missing funds totaling between $1.5 and $2.5 mil-
lion. The audit also determined that dozens of checks were incor-
rectly written from the Cash Bonds account and deposited into
other accounts, some of which were supposed to have been closed.
Demps wrote checks from the supposedly closed accounts to his
family and friends. Demps did not timely produce requested infor-
mation for the auditor.
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4 Opinion of the Court 22-12163
The auditor gave Demps a deadline of December 2, 2019, by
which he was required to comply with the requests for production.
On that date, he called in sick and submitted a notice of his retire-
ment via email. He was also observed leaving his office after hours
with boxes of unidentifiable objects; the auditor noticed that many
of the documents previously in Demps’s office were no longer
there.
Based on the audit, Demps was responsible for taking ap-
proximately $1.2 million in 2019 alone. Over $800,000 in checks
had been written from Clerk’s Office accounts, and approximately
half of those checks were written to the same six people. The in-
vestigation uncovered that Demps used those individuals to cash
the checks. Demps would write a check, meet with a “casher” in
the parking lot of the Government Center or at a bank, give them
the check, and then wait for the casher to return with the money.
Many of the checks were cashed in Alabama, and a wire was sub-
mitted to the bank of origin in Georgia to approve the transaction;
in other instances, the checks were cashed in Georgia and the
money then transported to Alabama. Demps gave the casher a
small portion of the transaction and kept the rest for himself.
Demps issued at least 330 checks totaling $1,323,045.21.
With the money, Demps purchased expensive cars, sent his
children to private school, and wired money to his wife’s family in
Africa. The investigation revealed that Demps deposited $147,455
and $327,787 in his personal bank accounts in 2018 and 2019,
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respectively; in those same years he reported only $35,996 and
$38,531, respectively, as his taxable income.
The PSR indicated that the base offense level was seven, and
it assessed the above-mentioned enhancements. In addition to the
enhancements Demps stipulated to, the PSR assessed Demps a
two-level sophisticated means enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(10)(C) and a two-level enhancement for deriving more
than $1,000,000 in gross receipts from one or more financial insti-
tutions under § 2B1.1(b)(17)(A). The total offense level for the con-
spiracy to commit bank fraud charge was 33. After a three-level
reduction for acceptance of responsibility under § 3E1.1, Demps’s
final offense level was 30. Demps had a criminal history score of
zero and a corresponding criminal history category of I. The PSR
also explained that the maximum term of imprisonment for con-
spiracy to commit bank fraud was 30 years, and that the maximum
term of imprisonment for tax evasion was five years per count.
The guideline imprisonment range was 97 to 121 months’ impris-
onment. Neither the government nor Demps objected to the PSR.
At the sentencing hearing, the Court announced that it had
considered the advisory sentencing range, the sentencing factors
found at
18 U.S.C. § 3553(a), and the facts presented in the case.
The Court sentenced Demps to the guideline maximum of 121
months’ imprisonment for conspiracy to commit bank fraud.
Demps was sentenced to 60 months for each of the two tax evasion
counts. Twelve months of each tax evasion sentence was to be
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6 Opinion of the Court 22-12163
served consecutive to the conspiracy sentence, for a total sentence
of 145 months. The Court stated:
To the extent that running Counts 2 and 3 partly con-
secutive, or in addition to, Count 1, to the extent that
is considered to be an upward variance from the
guideline range, the Court finds that that variance is
appropriate and necessary in this case in order to ac-
complish the purposes of the sentencing factors
found at 18 U.S.C., Section 3553(a).
Sent’g Hr’g Tr., Doc. 252 at 20–21. The Court believed that this
case was different because in addition to victimizing the Muscogee
County Clerk’s Office and the citizens of Muscogee County,
Demps’s co-conspirators were also his victims because he took ad-
vantage of them. The Court asked if there were any objections.
Demps’s attorney objected to the consecutive nature of the tax eva-
sion sentences as an upward variance that was not authorized by
the sentencing factors.
Demps timely appealed. On appeal, he argues that his total
sentence is procedurally unreasonable because the Court did not
adequately explain its chosen sentence. He argues that his sentence
is substantively unreasonable because the Court focused on one of
the § 3553(a) factors, seriousness of the offense, and discounted the
other statutory factors, like his advanced age. He also argues that
it was improper for the Court to classify his co-conspirators as vic-
tims because nothing in the record suggested that they were any-
thing other than knowing participants, and that to the extent that
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Demps recruited them, that conduct was already accounted for in
the four-level § 3B1.1(a) enhancement.
II.
When reviewing a sentence for procedural reasonableness,
we consider legal issues de novo and review factual findings for clear
error. United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010).
When a defendant challenges the procedural reasonableness of his
sentence on the grounds that the district court did not state its rea-
sons for imposing a sentence outside the guideline range as re-
quired by
18 U.S.C. § 3553(c)(2), we review the claim de novo even
if the defendant did not object below. United States v. Parks,
823 F.3d
990, 996 (11th Cir. 2016).
A sentence is procedurally unreasonable if the court fails to
adequately explain the chosen sentence, and additional explanation
may be necessary if the court deviates from the guideline range.
Gall v. United States,
552 U.S. 38, 50–51,
128 S. Ct. 586, 597 (2007).
Although the district court is required to consider the § 3553(a) fac-
tors, it is not required to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each one.
United States v. Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013). Addi-
tionally, a failure to discuss mitigating evidence does not indicate
tat the court ignored or failed to consider the evidence in error.
United States v. Amedeo,
487 F.3d 823, 833 (11th Cir. 2007).
When reviewing a sentence for substantive reasonableness,
we consider the totality of the circumstances under a deferential
abuse-of-discretion standard. Gall,
552 U.S. at 51,
128 S. Ct. at 597.
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8 Opinion of the Court 22-12163
The party challenging the sentence bears the burden of establish-
ing that it is unreasonable based on the facts of the case and the §
3553(a) factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir.
2010). This Court will vacate a sentence only if it is “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 (internal
quotation marks omitted).
A district court abuses its discretion when it: “(1) fails to af-
ford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir.
2010) (en banc) (internal quotation marks omitted). The proper
factors are set out in § 3553(a) and include the nature and circum-
stances of the offense, the personal history and characteristics of
the defendant, the seriousness of the crime, the promotion of re-
spect for the law, just punishment, adequate deterrence, and the
protection of the public.
18 U.S.C. § 3553(a). The district court
does not have to give all the factors equal weight and is given dis-
cretion to attach great weight to one factor over another. United
States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). How-
ever, a sentence that “is grounded solely in one factor” may be un-
reasonable. United States v. Pugh,
515 F.3d 1179, 1194 (11th Cir.
2008). Along with the § 3553(a) factors, the district court should
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consider the particularized facts of the case and the guideline
range. Rosales-Bruno,
789 F.3d at 1259–60.
The sentencing court has wide discretion to conclude that
the § 3553(a) factors justify a variance. United States v. Rodriguez,
628 F.3d 1258, 1264 (11th Cir. 2010), abrogated on other grounds by Van
Buren v. United States,
141 S. Ct. 1648 (2021). In imposing an upward
variance, the court can rely on factors previously considered in im-
posing an enhancement.
Id. (holding that varying upward from the
guideline range to account for multiple victims was not procedur-
ally unreasonable, even when an enhancement was applied on the
same grounds). A major variance must be supported by more sig-
nificant reasoning than a minor one, but the court need not discuss
each factor in its justification. Gall,
552 U.S. at 50,
128 S. Ct. at 597.
Even if an upward variance is imposed, a sentence that is well be-
low the statutory maximum for the offense is more likely to be rea-
sonable. United States v. Dougherty,
754 F.3d 1353, 1364 (11th Cir.
2014). The court also has discretion to impose consecutive sen-
tences in consideration of the § 3553(a) factors, including when
charges arise from the same statutory provisions and are grouped
in the guideline range calculation. See United States v. Bonilla,
579
F.3d 1233, 1245 (11th Cir. 2009) (upholding consecutive sentencing
for multiple counts of identity theft and because the court offered
a detailed explanation for its decision, expressing special concern
for the seriousness of the offense).
Here, Demps’s 145-month total sentence, a 24-month up-
ward variance, is procedurally reasonable because the District
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10 Opinion of the Court 22-12163
Court sufficiently explained its reasoning. According to the Court,
the variance was necessary to provide just punishment for each of-
fense, account for the number of victims of his conspiracy and
fraud, and reflect the seriousness of the offense and need to pro-
mote the rule of law. The record is clear that the Court imposed
the partly consecutive sentences to ensure Demps was punished
with imprisonment for each separate tax offense in addition to the
conspiracy to commit bank fraud. The Court also emphasized that
the number of victims in this case was actually higher than the PSR
showed, because Demps took advantage of friends and family
members by making them a part of the scheme.
Likewise, Demps’s sentence is substantively reasonable be-
cause the Court was permitted to vary upward based on factors
accounted for in the guideline range and was not constrained by
the PSR not indicating that a variance was warranted. The Court
also properly weighed Demps’s personal characteristics, the nature
of the offenses, the seriousness of the crime, the need to protect the
public, and just punishment in determining that an upward vari-
ance was warranted. The Court considered whether Demps acted
out of greed or opportunism, as well as that he took advantage of
his friends and family. The Court also considered the public trust
that had been placed in Demps, and that his actions harmed the
citizens of the entire county. It took into consideration the nature
and seriousness of the crime and the need for public protection.
While the District Court did not specifically mention that it
had considered Demps’s age, it did not have to mention that
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specifically. The Court stated that it had considered the guideline
range, the § 3553(a) factors, and the particular facts of the case. It
did not need to do more than that. We cannot say that we are left
with a firm and definite belief that the District Court’s sentence was
a clear error of judgment.
Because Demps’s sentence is both procedurally and substan-
tively reasonable, we affirm.
AFFIRMED.
