United States v. Lorn Leitman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2012
No. 11-13414 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20883-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORN LEITMAN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 15, 2012)
Before HULL, PRYOR and MARTIN, Circuit Judges
PER CURIAM:
Lorn Leitman appeals his conviction and sentence of 210 months of
imprisonment following his plea of guilt to mail fraud. 18 U.S.C. § 1341.
Leitman argues, for the first time on appeal, that the district court failed to comply
with Federal Rule of Criminal Procedure 11. Leitman also argues that his
sentence is unreasonable and the district court failed to comply with Federal Rule
of Criminal Procedure 32.2 before ordering forfeiture. We affirm Leitman’s
conviction and sentence, and we dismiss Leitman’s appeal of the forfeiture.
There was no plain error in Leitman’s guilty plea. Leitman argues that the
district court failed to ensure that he understood the charges against him and failed
to inform him that the government requested the forfeiture. The district court
complied with and satisfied the “core principles” of Rule 11, see United States v.
Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005), when it determined that Leitman
had knowingly and intelligently pleaded guilty to the crime of mail fraud as it was
described by the prosecutor and that Leitman understood and had “agreed to the
entry of a money judgment against [him] to be determined at a later time.”
Leitman challenges the eight-level enhancement of his sentence for
violating a prior administrative order, United States Sentencing Guidelines
Manual § 2B1.1(b)(9)(C) (Nov. 2010), relocating his fraudulent business scheme
to evade law enforcement, id. § 2B1.1(b)(10)(A), and being an investment adviser
or associated with an investment adviser, id. § 2B1.1(b)(18)(A)(iii), but we need
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not address Leitman’s challenges because the “guidelines error, if any, did not
affect [his] sentence,” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir.
2006). The district court stated that it varied upward from the guideline range of
121 to 151 months of imprisonment because it was “wholly inadequate” to address
Leitman’s “nefarious and deceitful” and “abhorrent” fraud. The district court also
stated that the guidelines “substantially understate[d] the manner in which [the]
offense was committed,” which included Leitman’s violation of his oaths to
protect the public as a member of the Florida Bar and as a certified public
accountant; “preying upon fellow service members”; exacting “usurious fees that
[he] charged by moving [the] location[]” of his business from Florida to Puerto
Rico and then to New Mexico; inflicting “psychological injuries” by defrauding
his mother and longtime friends, including his “son’s godfather”; “preying upon
the elderly and retirees” who could not “recoup their losses”; and “continu[ing]
[his] criminal conduct after having been put on notice by the Florida business
regulators and the Florida Bar.” The district court found Leitman’s crime so
“exceptional” that it varied upward 59 months from the high end of the guideline
range. The district court considered the “statements of all parties, the presentence
report which contains the advisory guidelines, and the statutory factors,” 18 U.S.C.
§ 3553(a), and explained that Leitman’s “conduct [required] the strongest possible
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measure of deterrence.”
The district court also did not abuse its discretion when it varied upward
from the guidelines range. Leitman swindled over 36 friends, associates, and
fellow military personnel out of more than $3.4 million, and several of his victims
lost their life savings and were forced to end their retirements or rely on their
families for financial support. In the light of the seriousness and magnitude of
Leitman’s misconduct, his sentence of 210 months of imprisonment is reasonable.
Leitman’s challenge to the order of forfeiture is barred by the appeal waiver
in his plea agreement. Leitman’s plea agreement provided that he “agree[d] to
entry of a money judgment against him . . . which is therefore property subject to
forfeiture pursuant to Title 18, United States Code, Section 982,” and that he
“knowingly and voluntarily waive[d] . . . any right to appeal the forfeiture.” The
district court discussed the waiver with Leitman during his change of plea hearing,
and Leitman said that he understood and had agreed to waive his right to appeal
the forfeiture. See United States v. Bascomb, 451 F.3d 1292, 1293 (11th Cir.
2006). Leitman’s waiver was knowing and voluntary, so we dismiss his appeal of
the forfeiture.
We AFFIRM Leitman’s sentence and conviction, and we DISMISS his
appeal as to forfeiture.
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AFFIRMED IN PART, DISMISSED IN PART.
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