United States v. Kalchstein , 388 F. App'x 350 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4923
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN KALCHSTEIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00057-FDW-1)
Submitted: June 28, 2010 Decided: July 21, 2010
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina; Lanny A. Breuer, Assistant Attorney General, Roanoke,
Virginia; Ellen R. Meltzer, Patrick M. Donley, Peter B.
Loewenberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martin Kalchstein pled guilty to failure to surrender
for service of the sentence imposed in United States v.
Kalchstein, No. 3:06-cr-00151-FDW-6 (W.D.N.C. Nov. 7, 2008), * in
violation of 18 U.S.C. § 3146(a)(2) (2006), and contempt of
court, in violation of 18 U.S.C. § 401(3) (2006). The district
court sentenced Kalchstein to seventy-two months of
imprisonment, an upward variance of more than five times the top
of the advisory sentencing guidelines range. On appeal,
Kalchstein contends that his sentence is unreasonable and
greater than necessary to serve the purposes of 18 U.S.C.
§ 3553(a) (2006). Finding no reversible error, we affirm.
We review a sentence, “whether inside, just outside,
or significantly outside the [g]uidelines range,” under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. “Procedural reasonableness evaluates the method used to
determine a defendant’s sentence.” United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). This court must
assess whether the district court properly calculated the
*
Kalchstein’s underlying convictions were for conspiracy to
defraud the United States and two counts of wire fraud.
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advisory guidelines range, considered the factors set forth in
§ 3553(a), analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010) (“[A]n individualized explanation must accompany every
sentence.”); United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009).
If there is no procedural error, the appellate court
reviews the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.” United States v. Morace, 594 F.3d 340, 346 (4th Cir.
2010) (internal quotation marks and citation omitted). “Where,
as here, the district court decides that a sentence outside the
advisory range is appropriate, [the court] ‘must consider the
extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.’”
Id. (quoting Gall, 552 U.S. at 50). “A major departure from the
advisory range ‘should be supported by a more significant
justification than a minor one.’” Id. (quoting Gall, 552 U.S.
at 50). In reviewing a variance sentence, this court “may
consider the extent of the deviation, but must give due
deference to the district court’s decision that the § 3553(a)
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factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51.
With these standards in mind, we have reviewed
Kalchstein’s sentence and find that it is procedurally and
substantively reasonable. Kalchstein asserts that the district
court committed procedural error in finding that he planned to
flee well before he was required to report to serve his sentence
and intentionally committed fraud in the process. Our review of
the record leads us to conclude that a preponderance of the
evidence supports the district court’s conclusions. See United
States v. Dean, 604 F.3d 169, 173 (4th Cir. 2010) (“Sentencing
judges may find facts relevant to determining a [g]uidelines
range by a preponderance of the evidence . . . .”) (internal
quotation marks and citation omitted).
Kalchstein also asserts that the above-guidelines
sentence imposed by the district court was greater than
necessary to serve the purposes of § 3553(a) and therefore
substantively unreasonable. He contends that the district
court’s consideration of his remorse during the original
sentencing proceedings was irrelevant to the selection of the
sentence imposed in this case. We find, however, that the
district court properly considered the lenient sentence imposed
for the underlying convictions, Kalchstein’s lack of remorse,
and his repeated deceptive and manipulative conduct in making
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the premeditated decision to flee to avoid serving that
sentence. See United States v. Douglas, 569 F.3d 523, 528 (5th
Cir. 2009) (finding no error in “sentencing [defendant] to an
above-range non-[g]uideline[s] sentence based on its assessment
of the § 3553(a) factors, including its finding that the
defendant lacked remorse for his crime”); United States v.
Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (finding no abuse
of discretion where court considered fact that defendant “had
repeatedly betrayed the trust reflected in [prior] lenient
sentences” when sentencing defendant for violating conditions of
his probation). Thus, we find no abuse of discretion in the
district court’s decision to impose a sentence significantly
above the advisory guidelines range.
Accordingly, we affirm the district court’s judgment.
We deny Kalchstein’s motion to file a pro se supplemental brief
and dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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