United States v. Mark-Simon Louma

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14142
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK-SIMON LOUMA,
a.k.a. Mark Louma,
a.k.a. Babo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-14142
D.C. Docket No. 1:21-cr-20104-JLK-1
____________________
Before JILL PRYOR, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant appeals the 51-month sentence he received after
he pled guilty to one count of possessing fifteen or more unauthor-
ized access devices in violation of 18 U.S.C. § 1029(a)(3) and one
count of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). On appeal, Defendant challenges the procedural and
substantive reasonableness of his sentence. After careful review,
we affirm.
BACKGROUND
Defendant was indicted in February 2021 on multiple counts
of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)
and two counts of possessing fifteen or more unauthorized access
devices, including credit card numbers, debit card numbers, and
social security numbers issued to other persons, in violation of
18 U.S.C. § 1029(a)(3). He pled guilty to one count of possessing
unauthorized access devices and one count of aggravated identity
theft under a plea agreement in which the Government agreed to
dismiss the remaining counts of the indictment.
Based on the undisputed facts set out in the presentence re-
port (“PSR”) and in the factual proffer submitted in support of De-
fendant’s plea, law enforcement obtained a search warrant in July
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2020 for a cell phone that belonged to Defendant’s co-conspirator,
Geno St. Flerose. The phone contained several messages between
St. Flerose and Defendant referencing access device fraud, identity
theft, and COVID unemployment fraud, as well as large quantities
of personally identifiable information (“PII”) from potential vic-
tims, including names, addresses, birth dates, credit card numbers,
social security numbers, and phone numbers. A separately exe-
cuted search of Defendant’s residence in Miami uncovered two cell
phones that belonged to Defendant and that contained evidence of
fraud and identity theft. Defendant’s residence also contained a
notebook full of PII, a bank statement and several letters containing
the names of victims, and multiple credit and debit cards in the
names of other people. Following the search of his residence, De-
fendant was arrested pursuant to a federal arrest warrant. During
the course of the arrest, Defendant attempted to destroy several
cell phones that contained evidence of device fraud and identity
theft.
The PSR assigned Defendant a base offense level of 6 per
§ 2B1.1(a)(2) of the sentencing guidelines, and it added 12 levels un-
der § 2B1.1(b)(1)(G) based on a stipulated intended loss amount of
between $250,000 and $550,000. A 3-level reduction for acceptance
of responsibility and assistance was then applied, resulting in a total
offense level of 15. The PSR described Defendant’s lengthy crimi-
nal history, including two juvenile offenses that involved Defend-
ant threatening two separate victims with a gun and an adult con-
viction in 2016 for strongarm robbery. Defendant received
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3 criminal history points based on the 2016 strongarm robbery con-
viction and the fact that he committed the instant offense while
under probation for that conviction, placing him in a criminal his-
tory category of II and yielding a recommended guidelines range
of 21 to 27 months for the device fraud count. 1 As noted in the
PSR, the sentence for the identity theft count was statutorily man-
dated by 18 U.S.C. § 1028A: a term of 24 months, which must be
served consecutively to any other counts. The PSR thus set De-
fendant’s total recommended guidelines range at 45 to 51 months.
The only objection Defendant asserted at sentencing was to
point out that the PSR contained a typographical error suggesting
that Defendant had 4 criminal history points when in fact, as was
represented in other places in the PSR, he had 3 points. Probation
acknowledged the error and confirmed that with 3 criminal history
points, Defendant’s criminal history category still was II, meaning
that the guidelines range calculated in the PSR was correct. De-
fense counsel indicated that he could tell the error was a typo and
that he simply wanted to clarify the record. Counsel confirmed
that there were no other objections to the PSR and that the defense
was seeking a low-end guidelines range sentence of 45 months. In
support of its request, defense counsel cited Defendant’s disadvan-
taged background, including being sent to foster care after his
mother left him at the age of 8, growing up in a rough
1 Defendant did not receive any criminal history points for the two juvenile
offenses.
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neighborhood, and having his left eye shot out in a drive-by shoot-
ing. Defendant also noted that the loss amount of the crime had
been calculated based on the number of access devices involved in
the offense rather than the amount of money received by Defend-
ant.
The Government, on the other hand, advocated for a high-
end guidelines range sentence of 51 months. In support of its posi-
tion, the Government argued that: (1) Defendant’s offense was
particularly egregious because it deprived victims of COVID un-
employment funds that were especially needed during the pan-
demic, (2) at the time of his arrest, Defendant destroyed cellphones
that contained evidence of his crimes, (3) the device fraud count
involved a large number of access devices, and (4) Defendant’s
criminal history score as calculated in the PSR did not take into ac-
count two serious juvenile offenses during which Defendant had
threatened two separate victims with a gun.
The district court accepted the Government’s argument and
sentenced Defendant to 27 months for the device fraud count, to
be followed by the 24-month statutorily mandated consecutive
term applicable to the identity theft offense, resulting in a total sen-
tence of 51 months.2 Prior to announcing the sentence, the court
stated that it had carefully considered the sentencing factors of
18 U.S.C. § 3553(a), and it referred specifically to the “seriousness
2 The sentence also included a supervised release term of 3 years, but Defend-
ant does not challenge that part of his sentence on appeal.
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of the offense, danger to the community, harm to the community,
setting a precedent, and at the same time taking into consideration
. . . mitigation of these factors”—such as Defendant’s difficult up-
bringing and life circumstances—as well as “deterrence to other
criminal conduct . . . and protecting the public.” Balancing the rel-
evant factors, the court found that a 27-month, high guidelines sen-
tence was warranted as to the device fraud count, which the court
deemed “extremely serious” because it involved an elaborate plan
to inflict “incredible harm to people who [had] their credit cards
and their credit destroyed, raided, their funds stolen in this pan-
demic time when so many people don’t have jobs.” At the conclu-
sion of the sentencing hearing, defense counsel stated that there
were no objections to the sentence.
Defendant appealed. In his appellate briefing, Defendant ar-
gues the district court procedurally erred by: (1) considering his
two juvenile offenses, (2) relying too heavily on an estimated loss
amount, and (3) failing to consider mitigating factors, including De-
fendant’s difficult upbringing and life circumstances. According to
Defendant, these errors led the court to impose a substantively un-
reasonable 51-month sentence, when a sentence at or below
45 months would have been “sufficient, but not greater than nec-
essary, to comply with the purposes of sentencing.”
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DISCUSSION
I. Standard of Review
We use a two-step process to review the reasonableness of a
sentence imposed by the district court. See United States v.
Cubero, 754 F.3d 888, 892 (11th Cir. 2014). First, we determine
whether the sentence is procedurally sound. See id. Assuming it
is, we then examine whether the sentence is substantively reason-
able given the totality of the circumstances and the sentencing fac-
tors set out in 18 U.S.C. § 3553(a). 3 Id. At both steps of the process,
the party challenging the sentence bears the burden of showing it
is unreasonable. See United States v. Pugh, 515 F.3d 1179, 1189
(11th Cir. 2008).
We review the substantive reasonableness of a sentence un-
der a “deferential abuse of discretion standard.” United States v.
Early, 686 F.3d 1219, 1221 (11th Cir. 2012) (citing Gall v. United
States, 552 U.S. 38 (2007)). Where a defendant fails to object at
sentencing, as occurred here, we review procedural reasonableness
3 The § 3553(a) factors include: (1) the nature and circumstances of the of-
fense and the history and characteristics of the defendant, (2) the need to re-
flect the seriousness of the offense, to promote respect for the law, and to pro-
vide just punishment for the offense, (3) the need for deterrence, (4) the need
to protect the public, (5) the need to provide the defendant with needed edu-
cation or vocational training or medical care, (6) the kinds of sentences availa-
ble, (7) the sentencing guidelines range, (8) pertinent policy statements of the
sentencing commission, (9) the need to avoid unwarranted sentencing dispar-
ities, and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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for plain error. See United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014). To prevail on plain error review, the defend-
ant must show, with respect to his sentence: (1) an error occurred,
(2) the error was “plain—that is to say, clear or obvious,” and
(3) the error affected his substantial rights. See Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904 (2018) (quotation marks omit-
ted). An error is plain if “controlling precedent from the Supreme
Court or [this Court] establishes that an error has occurred.”
United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014).
An error affects the defendant’s substantial rights only if there is a
“reasonable probability that, but for the error, the outcome” of the
sentencing proceeding would have been different. Rosales-Mire-
les, 138 S. Ct. at 1905 (quotation marks omitted).
II. Procedural Reasonableness
A sentence is procedurally unreasonable only if the district
court commits a “significant procedural error” such as failing to
calculate or incorrectly calculating the guidelines range, treating
the guidelines as mandatory, failing to consider the § 3553(a) fac-
tors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence. Pugh, 515 F.3d at 1190.
There simply is no viable argument that any such error occurred
here, much less plain error. Defendant concedes that the court cor-
rectly calculated his guidelines range, and he does not argue that it
treated the guidelines as mandatory. Furthermore, the record re-
flects the court’s careful balancing of the relevant § 3553(a) factors,
including the mitigating factors offered by Defendant. Indeed, the
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court expressly acknowledged Defendant’s “terribly difficult time
as a kid growing up” and the tragic loss of his eye, and it indicated
that it had taken these facts into consideration and tried to give De-
fendant “every benefit . . . from that point of view.” The court did
not commit procedural error when it decided the seriousness of
Defendant’s crime and the harm it inflicted nevertheless warranted
a 27-month, high guidelines sentence for the device fraud count,
resulting in a 51-month total sentence.
Nor did the district court procedurally err by relying on an
estimated loss amount or considering Defendant’s juvenile of-
fenses, as Defendant suggests. The court acknowledged during the
sentencing that the loss amount was estimated, but it reasonably
concluded based on the number of devices involved that there
were a multitude of victims and that Defendant had used an “elab-
orate system” to commit the crime, providing support for the loss
calculation. As to Defendant’s juvenile offenses, this Court has
held that such offenses may be considered to determine an appro-
priate sentence. United States v. Williams, 989 F.2d 1137, 1141
(11th Cir. 1993). See also United States v. Jones, 289 F.3d 1260, 1267
(11th Cir. 2002) (“While [the defendant’s] juvenile convictions are
not similar to the convictions in this case and are too remote to use
in calculating [his] criminal history category, they represent serious
criminal conduct, and the district court properly considered them
in determining whether an upward departure was warranted and,
if so, to what category.”). Section 3553(a) requires the sentencing
court to consider the “history and characteristics of the defendant”
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during sentencing—an analysis that in cases such as this one may
legitimately be informed by offenses the defendant committed
while a juvenile. See Jones, 289 F.3d at 1267.
In short, it is clear from the record that Defendant’s 51-
month sentence is procedurally sound: the district court correctly
calculated the guidelines range, carefully considered the relevant
§ 3553(a) factors, selected a sentence based on facts that largely
were agreed upon by the parties, and explained the sentence in de-
tail at Defendant’s sentencing. As this Court has repeatedly em-
phasized, the “decision about how much weight to assign a partic-
ular sentencing factor is committed to the sound discretion of the
district court.” United States v. Rosales-Bruno, 789 F.3d 1249, 1254
(11th Cir. 2015) (quotation marks omitted). Defendant cites no
procedural error that would warrant disturbing the court’s exercise
of its discretion here.
III. Substantive Reasonableness
The substantive reasonableness of a defendant’s sentence is
measured based on the “totality of the . . . circumstances” consid-
ering the § 3553(a) factors. See United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010). A sentence generally is substantively reason-
able unless it “lies outside the range of reasonable sentences dic-
tated by” those circumstances and factors. Id. at 1190 (citation and
quotation marks omitted). Consequently, a defendant cannot pre-
vail on a substantive reasonableness claim just by showing that a
lesser sentence would also be reasonable or may even be more rea-
sonable to some judges. See id. at 1191 (“A district court’s sentence
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need not be the most appropriate one, it need only be a reasonable
one.”).
Defendant does not come close to making the showing that
would be required to overturn his sentence as substantively unrea-
sonable. We note at the outset that his 51-month sentence is within
the guidelines range. “Although we do not automatically presume
a sentence within the guidelines range is reasonable, we ordinarily
expect [such] a sentence . . . to be reasonable.” United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation marks omitted).
The sentence is also well below the statutory maximum term of
ten years available for the device fraud count under 18 U.S.C.
§ 1029(c)(1)(A)(i), another indicator of reasonableness. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Indeed,
the sentence is only 6 months longer than the 45-month sentence
Defendant himself requested at sentencing.
Against this backdrop, Defendant provides no factual or le-
gal support for his position that the sentence should be overturned
as substantively unreasonable. Defendant concedes that a 24-
month consecutive sentence was statutorily mandated as to the
identity theft count. As to the additional 27 months he received for
the device fraud count, Defendant argues there was “more than
sufficient argument and evidence offered during the sentencing
hearing that . . . a much lower sentence . . . would comply with the
purpose of the sentencing guidelines.” But he does not cite the ar-
gument and evidence he is referring to, nor explain why the 27-
month sentence imposed by the district court did not so comply.
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On the contrary, the record reflects that the district court
conducted an individualized assessment of the facts at sentencing,
balanced the competing considerations—specifically weighing De-
fendant’s difficult upbringing and life circumstances against the “in-
credible harm” inflicted by his “elaborate” plan to steal numerous
victim identities and defraud a COVID relief program—and ulti-
mately determined that a high-end guidelines sentence of
27 months on the device fraud count, for a total sentence of
51 months, was necessary and warranted by the specific facts of this
case. We cannot say that the district court committed a clear error
of judgment in its decision, or that the 51-month sentence “lies out-
side the range of reasonable sentences dictated by the facts of the
case.” See Irey, 612 F.3d at 1190 (quotation marks omitted).
CONCLUSION
For the foregoing reasons, Defendant’s sentence is
AFFIRMED.