United States v. Kenneth Dezern

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15 2007
No. 06-15329 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00006-CR-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH DEZERN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 15, 2007)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Kenneth Dezern pleaded guilty to three counts of wire fraud, in violation of
18 U.S.C. § 1343, by which he stole large sums of money from his employer to pay
his own personal debts. Faced with a guideline range of 24 to 30 months, the
district court sentenced Dezern to serve 30 months in prison and ordered him to
pay restitution to his former employer in the amount of $282,922.82. On appeal,
Dezern argues (1) that his 30-month sentence is unreasonable, and (2) that the
district court improperly delegated to the probation officer the task of setting the
terms of Dezern’s restitution repayment schedule. After reviewing the record and
the parties’ briefs, we affirm.
A. Reasonableness
Conceding that the district court correctly calculated his guideline range,
Dezern nevertheless argues that the length of his within-guideline sentence is
unreasonable. It is unreasonable, Dezern says, because the district court did not
sufficiently explain how its decision was influenced by the 18 U.S.C. § 3553(a)
factors and did not address the specific concerns he raised during the sentencing
hearing. Dezern says that the following circumstances render his sentence
unreasonable: (1) the fact that he has a nearly non-existent criminal history;
(2) the fact that he has a deep sense of remorse over stealing money from his
employer and ruining his employer’s business; (3) the fact that he suffers from
various physical and mental ailments; (4) the fact that crimes like his are typically
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prosecuted in state, not federal, court; (5) the fact that similarly situated offenders
typically receive sentences more lenient than the one he received; (6) the fact that a
30-month sentence overstates the seriousness of his offense; and (7) the fact that he
could pay more restitution if he were not required to serve a prison term.
We review sentences for reasonableness. See United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005). “Review for reasonableness is deferential.” Id. at
788. “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in light of both [the] record and the factors in
section 3553(a).” Id. In reviewing the sentence imposed by the district court, we
will “consider the final sentence, in its entirety, in light of the § 3553(a) factors.”
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (citing United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) for the proposition that
“[w]e do not apply the reasonableness standard to each individual decision made
during the sentencing process; rather, we review the final sentence for
reasonableness.”)).
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005),
we held that, in imposing a sentence, the district court must first accurately
calculate the defendant’s guideline range and must second consider the factors set
forth in 18 U.S.C. § 3553(a). See Talley, 431 F.3d at 786. Those factors include
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(1) the nature and circumstances of the offense; (2) the history and characteristics
of the defendant; (3) the need for the sentence imposed to reflect the seriousness of
the offense, to afford adequate deterrence, to protect the public from future crimes
of the defendant, and to provide the defendant with needed medical care; (4) the
need to avoid unwarranted sentencing disparities among defendants with similar
histories who have committed similar conduct; and (5) the kinds of available
sentences and the sentencing range. See 18 U.S.C. § 3553(a). However, “nothing
in Booker or elsewhere requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
We have further explained that, “[a]lthough a sentence within the Sentencing
Guidelines range will not be considered per se reasonable, ‘when the district court
imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.’” United States v. Bohannon, 476 F.3d 1246,
1253 (11th Cir. 2007) (quoting Talley, 431 F.3d at 787-88).
The record in this case reveals that: (1) the district court correctly calculated
the guideline range of 24 to 30 months; (2) the district court gave due regard to the
§ 3553(a) factors; and (3) the district court sentenced Dezern within the guideline
range. Additionally, we note that the calculated guideline range already accounted
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for Dezern’s minimal criminal history. No allegation has been made that Dezern
will receive inadequate medical care in prison. Nor has Dezern provided any
support for the assertion in his brief that his sentence is disproportionate to the
sentences imposed on other similarly situated offenders. And even assuming that
Dezern would be better able to pay restitution to his victims if he were not
incarcerated, we recognize that one of the goals of § 3553(a) is to provide just
punishment for the crime committed. Just punishment may include the need for
imprisonment as well as the need for restitution, especially in a case like this one,
where the district court explicitly found that Dezern’s conduct — abusing his
position of authority and trust by stealing a substantial amount of money from his
employer — was “egregious and reprehensible.” On this record, we cannot say
that Dezern’s 30-month sentence is unreasonable.
B. Restitution Order
Dezern does not challenge on appeal the amount of restitution ordered by the
district court. Rather, he makes only an improper-delegation argument, saying that
“the district court erred in leaving it to the probation officer to determine Mr.
Dezern’s ability to pay restitution during Supervised Release.” Appellant’s Br. at
14 (emphasis added). Dezern relies upon our decision in United States v. Prouty,
303 F.3d 1249 (11th Cir. 2002), for the proposition that “a district court judge may
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not delegate the amount of the monthly restitution payment to a Probation Officer.”
Appellant’s Br. at 15 (emphasis added). In his reply brief, Dezern asserts that the
district court violated Prouty because it “clearly did delegate the amount of the
payment to the probation officer.” Appellant’s Reply Br. at 3 (emphasis added).
We disagree.
Ordinarily, we review a district court’s restitution order de novo.
See Prouty, 303 F.3d at 1251. But de novo review is not appropriate in this case.
That is because the improper-delegation argument Dezern presses on appeal was
not made in the district court. There, Dezern objected only to the amount of the
court’s restitution order and not to the court’s alleged delegation of discretion to
the probation officer. See R2 at 22-23. So we will review the action said to have
been taken by the district court — the allegedly improper delegation of the court’s
statutory obligation — for plain error. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000) (“Where a defendant raises a sentencing argument for
the first time on appeal, we review for plain error.”). “For this Court to correct
plain error: (1) there must be error; (2) the error must be plain; and (3) the error
must affect substantial rights.” Id. (quotation omitted). “If all three conditions are
met, an appellate court may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation
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of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir.), cert. denied, 545 U.S. 1127 (2005) (quotation omitted).
According to the Mandatory Victim Restitution Act (MVRA), a district
court, pursuant to 18 U.S.C. § 3572, “shall . . . specify in the restitution order the
manner in which, and the schedule according to which, the restitution is to be
paid.” 18 U.S.C. § 3664(f)(2); see also Prouty, 303 F.3d at 1254. “A restitution
order may direct the defendant to make a single, lump-sum payment, partial
payments at specified intervals, in-kind payments, or a combination of payments
at specified intervals and in-kind payments.” 18 U.S.C. § 3664(f)(3)(A).
“If the . . . restitution order . . . permits other than immediate payment, the length
of time over which scheduled payments will be made shall be set by the court, but
shall be the shortest time in which full payment can reasonably be made.”
18 U.S.C. § 3572(d)(2).
Applying these provisions of the MVRA, we have held that the statute
imposes an obligation on the district court to set a restitution schedule and to
determine the schedule’s duration — obligations that the court may not delegate to
the probation office. See Prouty, 303 F.3d at 1254-55. In Prouty, the defendant
objected to the district court’s order that his restitution be paid “immediately” on
the ground that he did not have sufficient funds to make such a payment. Id. at
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1254. The defendant asked the court “to impose a reasonable payment schedule,”
but the court refused. Id. After the defendant requested the imposition of a
payment schedule, the following exchange occurred:
THE COURT: I will leave that to the discretion of the Probation
Office or whoever does that.
Does that fall within your province?
[PROBATION OFFICER]: When he is released, Your Honor, they do
work out payment plans with the defendants.
[DEFENSE COUNSEL]: I don’t think the statute allows it to be left. I
think the statute says. [sic]
THE COURT: I will tell you what. He will pay what he could pay.
That’s the reality of it.
[DEFENSE COUNSEL]: That’s fair. I just don’t want an order
hanging out there that he is in default of some judgment or some
order. He will obviously pay what he could pay.
Id. (alterations in original). We vacated the district court’s restitution order
because it required “‘immediate’ payment with an informal understanding that the
probation office shall set a repayment schedule.” Id. at 1255. We concluded that
such an arrangement was impermissible because it “would in practice defeat the
statutory requirement that the court establish any installment schedule.” Id.This case is easily distinguished from Prouty in which the district court
declined to set a repayment schedule at all — a course of action flatly forbidden by
the MVRA. Here, by contrast, the district court stated twice during the sentencing
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hearing that, as a condition of his supervised release, Dezern would be required to
make monthly payments of $400 to the extent of any unpaid restitution. In
addition to its unambiguous oral statements regarding restitution, the district court,
days after the sentencing hearing, entered a written judgment that provides in
relevant part:
Restitution totaling $282,922.82 as a condition of supervised release
is to be paid at the monthly minimum rate of $400.
(Emphasis added).
And in a separate recitation of the special terms of Dezern’s supervised release, the
court’s judgment went on to state:
Any portion of the restitution that is not paid in full at the time of the
defendant’s release from imprisonment shall become a condition of
supervision and be paid in monthly installments of $400.00 over a
period of 36 months to commence 30 days after the date of this
judgment.
(Emphasis added).
Thus, contrary to Dezern’s argument on appeal, the record makes clear that the
district court did not waver from: (a) its imposition of a repayment schedule, or
(b) its imposition of a $400-per-month payment under that schedule. The district
court did not leave either of those decisions up to the probation office. Instead,
unlike in Prouty, the district court here fully complied with its statutory
obligations. First, the court expressly prescribed “in the restitution order the
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manner in which [$400 payments], and the schedule according to which [monthly
during supervised release], the restitution is to be paid.” 18 U.S.C. § 3664(f)(2).
And second, the court prescribed “the length of time over which scheduled
payments will be made [36 months],” something that the statute says “shall be set
by the court.” 18 U.S.C. § 3572(d)(2). Accordingly, Dezern’s reliance on Prouty
is misplaced, and we find unpersuasive his argument that the district court
delegated to the probation office the judicial task of setting a payment schedule and
prescribing its terms.
In support of his argument, Dezern points to one comment made by the
district court. After the court imposed the $400-per-month restitution obligation,
Dezern’s attorney objected to that amount, saying that, given Dezern’s likely
diminished earning capacity after 30 months in prison, “I think a $400 monthly
payment is more than the defendant could possibly pay.” Recognizing that
Dezern’s $400-per-month obligation would not take effect for over two and a half
years, and that his attorney’s objection was therefore speculative, the district court
responded: “Well, I’ll leave that [Dezern’s ability to pay] to the discretion of the
probation officer at that time [upon the vesting of the monthly obligation].”
(Emphasis added).
We view the district court’s comment as simply acknowledging two
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commonsense facts. First, that a probation officer — who, unlike a district judge,
monitors very closely a defendant serving a term of supervised release — is
uniquely positioned to assess a defendant’s financial condition at the future date of
release from prison (i.e., to gather the appropriate information, to form a
considered judgment, and to report to the court the defendant’s ability to comply
with a monthly restitution obligation at which time the court can adjust the
monthly payments pursuant to 18 U.S.C. §3664(k)). Second, that any
contemporary assessment about a defendant’s likely ability to comply with a future
restitution obligation must necessarily be made in the future, not on the date of
sentencing over two years before the defendant’s monthly obligation begins.
In short, we doubt that the comment made by the district court in this case is error
under Prouty because the court, despite its passing mention of the word
“discretion,” did not by that comment delegate to the probation officer any
authority to alter either the amount or the duration of the restitution repayment
schedule already ordered. And even if error, it is not plain error.
Having reviewed the record and the parties’ briefs, we conclude that
(1) Dezern’s sentence is not unreasonable, and that (2) the district court did not
delegate any of its sentencing obligations to the probation officer. Accordingly,
Dezern’s 30-month sentence is
AFFIRMED.
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