United States v. Tolliver ( 2023 )

Case: 23-30292 Document: 00516886749 Page: 1 Date Filed: 09/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30292 FILED
Summary Calendar September 7, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael Ansezell Tolliver,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:21-CR-271-1
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Michael Ansezell Tolliver appeals the 120-month sentence imposed
for his conviction of money laundering. He contends that the district court
committed two reversible guidelines errors, his sentence is substantively
unreasonable under 18 U.S.C. § 3553(a), and his sentence constitutes cruel
and unusual punishment under the Eighth Amendment.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30292 Document: 00516886749 Page: 2 Date Filed: 09/07/2023
No. 23-30292
In his first guidelines challenge, Tolliver argues that the district court
erred in determining the loss applicable under U.S.S.G. § 2B1.1(b)(1). He
concedes that the applicable loss in his case was the greater of the actual loss
or intended loss. For challenges that have been preserved, the district court’s
interpretation of the Sentencing Guidelines is reviewed de novo. United
States v. Dowl, 619 F.3d 494, 502 (5th Cir. 2010). We review the calculation
of the loss amount and other factual findings for clear error. Id.The district court’s loss determination was supported by factual
findings in the presentence report (PSR) about Tolliver’s fraudulent
applications under the Paycheck Protection Program (PPP) and Economic
Injury Disaster Loan Program (EIDL). Tolliver did not provide any evidence
rebutting the PSR’s findings. Additionally, given the PSR’s details about the
dates of the applications; the names of the businesses used by Tolliver in the
applications; the amounts sought; the amounts funded; and the names of the
lenders associated with the applications, the PSR’s information about the
applications had sufficient indicia of reliability. Accordingly, the district
court was permitted to rely on that information without further inquiry. See
United States v. Murray, 648 F.3d 251, 255 (5th Cir. 2011). Tolliver’s
intention to divert $7,607,096 from the government for unintended uses
qualifies that amount as the intended loss for purposes of § 2B1.1(b)(1). See
Dowl, 619 F.3d at 502.
Tolliver also contends that the district court misunderstood the
parties’ stipulation regarding the applicable loss. The stipulation was not
binding on the district court, and the record reflects a deliberate decision by
the district court to use the definition of loss under § 2B1.1(b)(1) as the
appropriate way to calculate the applicable amount. Tolliver’s contention
that a misunderstanding of the stipulation affected the loss calculation is
unavailing.
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No. 23-30292
With respect to the second guidelines issue, the parties agree that the
district court misapplied U.S.S.G. § 2S1.1(b)(2)(A) by assessing a two-level
enhancement when only a one-level enhancement was applicable. Because
this error was not raised in the district court, we review it under the plain
error standard. See Murray, 648 F.3d at 253. To establish an effect on his
substantial rights, Tolliver “must show a reasonable probability that, but for
the error, the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (internal quotation
marks and citation omitted).
The district court’s comments at sentencing make clear that its
sentencing decision was driven by the statutory maximum and that the
district court would not have imposed any sentence that was “a day less than
the [statutory] maximum sentence” of 120 months of imprisonment. Thus,
Tolliver has not shown a reasonable probability that he would have received
a lesser sentence if the district court had considered the correct guidelines
range of 110 to 120 months of imprisonment. See United States v. Sanchez-
Hernandez, 931 F.3d 408, 411-12 (5th Cir. 2019); United States v. Nino-
Carreon, 910 F.3d 194, 197-98 (5th Cir. 2018). Accordingly, the district
court’s misapplication of § 2S1.1(b)(2)(A) is not reversible plain error.
For both substantive reasonableness and the Eighth Amendment,
Tolliver relies on the same arguments: (1) his sentence is disproportionately
greater than sentences for similarly situated convictions involving PPP and
EIDL fraud; (2) his sentence is greater than necessary to deter him from
future criminal conduct and to protect the public, given that the COVID-19
economic relief programs are over, he is 57 years old, and he has a history of
heart issues; and (3) a shorter prison term would allow him to return to the
workforce more quickly and increase the likelihood of restitution payments.
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In evaluating substantive reasonableness, we consider whether the
district court “abused [its] discretion in determining that the § 3553(a)
factors supported the sentence imposed.” Holguin-Hernandez v. United
States, 140 S. Ct. 762, 766 (2020). Tolliver points to four cases in arguing
that his sentence is disproportionately high, but he fails to show whether
those cases had comparable aggravating or mitigating facts. Thus, he has not
shown that any sentencing disparity with those cases was unwarranted. See
§ 3553(a)(6); United States v. Willingham, 497 F.3d 541, 544-45 (5th Cir.
2007).
Moreover, the district court was aware of his arguments for a lesser
sentence but determined that the statutory maximum of 120 months of
imprisonment was appropriate. In doing so, the district court specifically
noted Tolliver’s extensive criminal history, a factor that the district court was
permitted to consider. See United States v. Smith, 440 F.3d 704, 709 (5th Cir.
2006). “The sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) in the individual case.” Gall v. United States,
552 U.S. 38, 51 (2007). We give due deference to the district court’s
sentencing decision and decline to reweigh the applicable sentencing factors.
See id. Tolliver’s sentence is not substantively unreasonable.
Lastly, we review Tolliver’s Eighth Amendment claim for plain error
because he did not raise such a claim in the district court. See United States
v. Ayelotan, 917 F.3d 394, 406 (5th Cir. 2019). He has not shown that his
sentence is grossly disproportionate to the severity of his offense. See United
States v. Neba, 901 F.3d 260, 264-65 (5th Cir. 2018).
AFFIRMED.
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