DocketNumber： 21-11265
Filed Date： 5/27/2022
Status： Non-Precedential
Modified Date： 5/27/2022
USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11265 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BENJAMIN JULIEN BORSANI, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:18-cr-20328-FAM-1 ____________________ USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 2 of 6 2 Opinion of the Court 21-11265 Before ROSENBAUM, GRANT, and EDMONDSON, Circuit Judges. PER CURIAM: Benjamin Borsani appeals the 24-month sentence imposed by the district court after Borsani pleaded guilty to bank fraud and to mail theft, in violation of18 U.S.C. §§ 1344
and 1708. No re- versible error has been shown; we affirm.* Borsani’s convictions arise from these facts. In March 2016 -- while Borsani was living in a rental house in Miami Beach, Flor- ida -- a check for over $123,000 arrived in the mail. Although the check was written out to the “Theodore & Beatrice Foster Irrevo- cable Life Insurance Trust,” Borsani affixed a stamped endorse- ment on the back of the check and deposited the check into his own business checking account. The trustee of the irrevocable trust filed a civil lawsuit against Borsani and was awarded a final judgment against Borsani for over $369,000. Shortly after the civil judgment was entered in * We note that Borsani completed his term of imprisonment on 12 October 2021 and is now serving his 5-year term of supervised release. Because a suc- cessful appeal could impact on the remaining portion of Borsani’s term of su- pervised release, this appeal is not moot. See Dawson v. Scott,50 F.3d 884
, 886 n.2 (11th Cir. 1995) (concluding in a habeas context that an appeal was not moot -- even though the defendant had been released from federal custody -- because the defendant’s challenge to the length of his custodial sentence could alter his supervised-release term). USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 3 of 6 21-11265 Opinion of the Court 3 March 2017, Borsani (a dual citizen of Italy and Belgium) fled to Europe. In 2018, a federal grand jury returned an indictment charg- ing Borsani with the offenses underlying this appeal. Borsani was later arrested in Italy in January 2020 and was extradited to the United States in September 2020. Borsani pleaded guilty pursuant to a written plea agreement. Following a sentencing hearing, the district court sentenced Borsani to 24 months’ imprisonment to be followed by 5 years’ supervised release. On appeal, Borsani contends that the district court erred by denying him a two-level reduction under U.S.S.G. § 3E1.1(a), for acceptance of responsibility. Borsani says the district court -- in making its acceptance-of-responsibility determination -- relied im- permissibly on Borsani’s failure to make voluntary restitution pay- ments: conduct Borsani says pre-dated the federal indictment in this case. We review a district court’s denial of an acceptance-of-re- sponsibility adjustment for clear error. See United States v. Mori- arty,429 F.3d 1012
, 1022 (11th Cir. 2005). Because the “sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” the sentencing judge’s determination “is entitled to great deference on review.”Id.
Under this deferential standard, we will set aside a district court’s denial of an acceptance-of-respon- sibility reduction only if “the facts in the record clearly establish that the defendant has accepted responsibility.”Id. at 1022-23
. USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 4 of 6 4 Opinion of the Court 21-11265 The Sentencing Guidelines allow for a two-level reduction in the defendant’s offense level if the defendant “clearly demon- strates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). “The defendant bears the burden of clearly demonstrat- ing acceptance of responsibility and must present more than just a guilty plea.” United States v. Wade,458 F.3d 1273
, 1279 (11th Cir. 2006) (quotations omitted); see U.S.S.G. § 3E1.1 comment. (n.3) (“A defendant who enters a guilty plea is not entitled to an adjust- ment under this section as a matter of right.”). Although a guilty plea is considered significant evidence of acceptance of responsibil- ity, that evidence “may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1 comment. (n.3). We have described acceptance of responsibility as “a multi- faceted concept” that encompasses “the offender’s recognition of the wrongfulness of his conduct, his remorse for the harmful con- sequences of that conduct, and his willingness to turn away from that conduct in the future.” See United States v. Scroggins,880 F.2d 1204
, 1215 (11th Cir. 1989). Among the factors a sentencing court may consider in determining whether a defendant has ac- cepted responsibility is the defendant’s “voluntary payment of res- titution prior to adjudication of guilt.” U.S.S.G. § 3E1.1 comment. (n.1). The sentencing court may not, however, deny an ac- ceptance-of-responsibility reduction based solely on the defend- ant’s pre-indictment criminal activity. Wade,458 F.3d at 1280-81
. USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 5 of 6 21-11265 Opinion of the Court 5 The record supports adequately the district court’s determi- nation that Borsani demonstrated no clear acceptance of responsi- bility for purposes of a reduction under section 3E1.1(a). Contrary to Borsani’s assertion on appeal, the district court did not rely solely on Borsani’s pre-indictment conduct in assessing Borsani’s ac- ceptance of responsibility. The district court was permitted to con- sider Borsani’s failure to pay restitution to the victim of his fraud. See U.S.S.G. § 3E1.1 comment. (n.1). And Borsani’s failure to make any effort at restitution -- despite evidence that he had the means to do so -- continued well after federal charges were brought against Borsani in this case. Borsani’s continued refusal to pay back the money he stole is pertinent conduct inconsistent with showing acceptance of responsibility. The district court also made clear that Borsani’s failure to pay restitution was not the chief reason for the district court’s de- cision. Instead, the district court explained that Borsani’s de- meanor and attitude during the sentencing hearing contributed to the district court’s determination that Borsani had not accepted re- sponsibility for his offenses. During the sentencing hearing, Borsani blamed others -- including the fraud victim and the bank -- for Borsani’s decision not to pay restitution. Borsani also faulted the victim for not making adequate efforts to enforce the civil judg- ment against Borsani when Borsani was in Brussels. Borsani indi- cated further that he refused to pay restitution in part because the victim sought treble damages against him in the related civil suit USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 6 of 6 6 Opinion of the Court 21-11265 and because the victim had already received a $500,000 settlement payment from the bank. Nothing in the record demonstrates clearly that Borsani showed remorse for the harm that he caused or recognized fully the wrongfulness of his conduct. The district court committed no clear error in determining that Borsani failed to accept responsibil- ity for his offenses and was, thus, unentitled to a two-level reduc- tion under section 3E1.1(a). AFFIRMED.