United States v. Arne Soreide

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15344 APRIL 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-60235-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNE SOREIDE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 18, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Arne Soreide appeals his convictions for: 1) one count of conspiracy to
commit mail fraud and wire fraud, in violation of 18 U.S.C. § 371; 2) twenty-four
counts of mail fraud, in violation of 18 U.S.C. §§ 2, 1341; 3) two counts of wire
fraud, in violation of 18 U.S.C. §§ 2, 1343; 4) five counts of money laundering, in
violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(i); 5) nine counts of money laundering,
in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i); 6) twenty-five counts of engaging
in prohibited monetary transactions, in violation of 18 U.S.C. §§ 2, 1957; 7) one
count of filing a fraudulent income tax return, in violation of 26 U.S.C. § 7206(1);
and 8) one count of filing a fraudulent corporate tax return, in violation of 26
U.S.C. § 7206(1).1 Soreide argues that the district court improperly denied his
motion to sever the conspiracy and fraud counts from the remaining counts in the
indictment and that the district court committed several constitutional and statutory
errors in calculating his sentence. For the reasons discussed below, we affirm the
conviction, but vacate the sentence and remand for resentencing.
Arne Soreide was the owner and chief executive officer of Accutel
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Soreide was sentenced to concurrent prison terms of 60 months on each count of
conspiracy to commit mail fraud and wire fraud; 60 months on each count of committing mail
fraud and wire fraud; 236 months on each count of money laundering; 120 months on each count
of engaging in prohibited monetary transactions; and 36 months on each count of filing a
fraudulent income and corporate tax return. Soreide was also ordered to pay $7,603,959.25 in
restitution. Soreide’s sentence is to be followed by three years of supervised release.
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Communications, Inc. (“Accutel”).2 Accutel would purchase long-distance
services at wholesale prices from other long-distance providers. It would resell the
services by engaging in “slamming” and “cramming,” in which it switched
telephone customers’ long distance services to Accutel without the customers’
permission (slamming) and then charged the customers a monthly fee for having
Accutel as their long-distance provider (cramming). Accutel generally charged
customers an additional $4.95 per month.
Accutel’s slamming and cramming resulted in millions of dollars of false
charges to long-distance customers. Accutel transmitted its charges to customers
by providing outside telecommunications consulting companies with billing data.
Those companies would then process the data and wire the reformatted information
to a billing agent, which provided the information to local telephone companies for
billing. When customers complained to Accutel and the Federal Communication
Commission (“FCC”), Accutel falsely told the customers that the change in service
was inadvertent, and Accutel provided false records to the FCC.
After a jury found Soreide guilty on all counts, the district court empaneled a
sentencing jury. The sentencing jury returned a special verdict form,3 finding that
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Kim Sottile, who was responsible for the day-to-day operations of Accutel, was also
charged in the conspiracy. She pled guilty and testified against Soreide.
3
The special verdict form asked the jury to answer nine questions involving: (1) the
amount of “actual loss”; (2) the amount of “intended loss”; (3) the number of victims; (4)
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the actual loss amounted to more than $7 million, but less than $20 million; the
intended loss amounted to more than $20 million on counts 1-27 and more than $7
million, but less than $20 million on counts 28-66; more than fifty victims were
involved; Soreide used mass-marketing and sophisticated means; the tax loss was
more than $400,000, but less than $1 million; Soreide failed to identify the source
of income exceeding $10,000 from criminal activity on his tax return; he was an
organizer or leader; and the criminal activities were otherwise extensive.
Thereafter, the district court sentenced Soreide based on an offense level of 23 with
enhancements of 9 points based on an amount of funds laundered by Soreide that
was more than $7 million, but less than $20 million, and 4 points based on
Soreide’s role as an organizer or leader.
A. Conviction
Soreide first argues that the district court improperly denied his motion to
sever the conspiracy and fraud charges (counts 1-27) because the denial of
severance deprived him of the right to testify on some charges, but not others.
“[T]o establish that the joinder of charges kept him from testifying, [a defendant]
must show that the charges were distinct in time, place, and evidence, that there
whether Soreide used “mass marketing”; (5) whether he used “sophisticated means”; (6) the
amount of “tax loss”; (7) whether Soreide failed to report or properly identify the source of
income exceeding $10,000; (8) whether Soreide was an “organizer,” “leader,” “manager” or
“supervisor”; and (9) whether Soreide’s criminal activities were otherwise extensive.
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was ‘important’ evidence that he might have offered on one set of charges but
could not, and that he had a ‘strong need’ not to testify on the other counts.”
United States v. Hersh, 297 F.3d 1233, 1243 n.15 (11th Cir. 2000) (citation
omitted) (quoting United States v. Forrest, 623 F.2d 1107, 1115 (5th Cir. 1980)
(holding that “severance is not mandatory simply because a defendant indicates
that he wishes to testify on some counts but not on others”)). Because Soreide has
failed to set forth the requisite showing for severance, the district court did not err
in denying the motion to sever. Id.; see also Fed. R. Crim. P. 8(a)4; United States
v. Dominguez, 226 F.3d 1235, 1239 (11th Cir. 2000).
B. Sentence
Soreide makes four arguments concerning his sentence: (1) the district court
committed statutory and constitutional error pursuant to United States v. Booker,
543 U.S. 220 (2005); (2) the district court failed to make specific factual findings
regarding (a) § 1B1.2(d) of the Sentencing Guidelines, which requires a
determination of whether the various objects of a multi-object conspiracy were
4
Rule 8(a) states:
The indictment or information may charge a defendant in separate counts with 2
or more offenses if the offenses charged – whether felonies or misdemeanors or
both – are of the same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a common scheme or
plan.
Fed. R. Crim. P. 8(a).
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proven beyond a reasonable doubt, and (b) whether his co-conspirator’s conduct
was reasonably foreseeable to Soreide; (3) the district court improperly enhanced
his sentence based upon facts not alleged in the indictment; and (4) the district
court failed to make the necessary factual findings under 18 U.S.C. § 3553(c).
Soreide’s first argument is that the district court committed constitutional
and statutory Booker error by applying the guidelines in a mandatory fashion, and
by enhancing his sentence based on an amount of money laundered between $7
million to $20 million and based on his role as an organizer or leader. Because
Soreide made a timely objection, we review his Booker claim under a harmless
error standard.5 United States v. Shelton, 400 F.3d 1325, 1331 n.7 (11th Cir.
2005); United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005).
We find any constitutional Booker error committed by the district court
harmless. The district court stated that although the jury’s special verdict “would
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We have held that:
There are two harmless error standards. One of them applies to Booker
constitutional errors, the other to Booker statutory errors. . . . [C]onstitutional
errors are harmless where the government can show, beyond a reasonable doubt,
that the error did not contribute to the defendant’s ultimate sentence . . . . Booker
statutory errors, on the other hand, are subject to the less demanding test that is
applicable to non-constitutional errors. . . . A “non-constitutional error is
harmless if, viewing the proceedings in their entirety, a court determines that the
error did not affect the [sentence], ‘or had but very slight effect.’ If one can say
‘with fair assurance . . . that the [sentence] was not substantially swayed by the
error,’ the [sentence] is due to be affirmed even though there was error.”
United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005) (citations omitted).
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have no impact upon the [c]ourt’s sentencing decision,” it would impact the court’s
decision if “the Supreme Court later determine[d] that Blakely [v. Washington, 542
U.S. 296 (2004)] extends to federal sentencing.” As mentioned above, the special
verdict indicated that Soreide was responsible for $7 million to $20 million in
actual loss and more than $20 million in intended loss, and that he participated as
an organizer or leader. Because these jury findings were identical to those made
by the sentencing judge and because they would be applied upon resentencing, any
constitutional error was harmless. See United States v. Lee, 427 F.3d 881, 892
(11th Cir. 2005) (holding that Booker constitutional error was harmless beyond a
reasonable doubt because on remand the district court would have given defendant
the same sentence).
As for Soreide’s claim of statutory Booker error, we remand for
resentencing. Statutory Booker error arises “when the district court misapplies the
Guidelines by considering them as binding as opposed to advisory.” Shelton, 400
F.3d at 1330-31. Because the district court considered the guidelines to be
mandatory, it committed statutory Booker error. The government bears the burden
of showing that the statutory error was harmless. United States v. Mathenia, 409
F.3d 1289, 1292 (11th Cir. 2005). The government argues that the error was
harmless because the sentencing judge considered Soreide’s lavish lifestyle, the
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effect on the victims, and the extent of punishment and deterrence stemming from
a sentence in the middle of the guidelines range.
We have previously ruled that a sentence in the middle of the guidelines
range is insufficient to prove harmless error. United States v. Glover, 431 F.3d
744, 749-750 (11th Cir. 2005) (holding that “the sentence alone tells us nothing
about whether the district [court] would have imposed a lesser sentence”). Rather,
the government must set forth “something in the record [to] suggest[] that the
district court would have imposed the same or a greater sentence.” Id. at 750.
What sentence the district court would have imposed had it considered the
guidelines advisory, however, is unknown. As the government states in its brief,
“the court declined to say how it would have exercised discretion to sentence
defendant without guidelines.” Moreover, the comments of the sentencing judge
here that “the defendant and his family enjoyed a lavish lifestyle at the expense of
many unsuspecting victims” and that “a sentence in the middle range of the
Guidelines would sufficiently punish the defendant and deter others from
committing like or similar crimes” are insufficient to say with fair assurance that
the statutory Booker error was harmless. Id. at 749-50 (holding statutory Booker
error was not harmless where district court imposed sentence in middle of
guidelines range and there were no statements in the record reflecting that the court
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would have imposed the same or greater sentence under advisory guidelines); see
also United States v. Cain, 433 F.3d 1345, 1348-49 (11th Cir. 2005) (concluding
that constitutional error was not harmless because district court did not state that it
would have imposed the same or higher sentence if it had the discretion to do so,
even though it sentenced defendant to the “high end” the guidelines range and
stated that the sentence was “appropriate”); cf. United States v. Gallegos-Aguero,
409 F.3d 1274, 1277 (11th Cir. 2005) (holding statutory error harmless where
district court imposed the highest available sentence under guidelines range and
considered sentencing to the statutory maximum); United States v. Mejia-Giovani,
416 F.3d 1323 (11th Cir. 2005) (finding that district court’s express statements that
the defendant might not benefit under an advisory system with the court’s warning
that defendant was at risk for an upward departure made statutory error harmless).
Soreide next argues that the district court failed to make specific factual
findings with regard to the nature and scope of Soreide’s relevant conduct in the
conspiracy. Because we find that there was ample evidence to support the district
court’s description and determination as to Soreide’s potential role, we find that the
district court did not improperly fail to make specific factual findings. See United
States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002) (holding that a “sentencing
court’s failure to make individualized findings regarding the scope of defendant’s
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activity is not grounds for vacating a sentence if the record support[ed] the court’s
determination with respect to the offense conduct, including the imputation of
others’ unlawful acts to the defendant” (citing United States v. Matthews, 168 F.3d
1234, 1247 (11th Cir. 1999))).
We also find no merit to Soreide’s claim that the judge improperly enhanced
his sentence based on facts not alleged in the indictment. Specifically, Soreide
claims that the district court amended the indictment by submitting the special
verdict form to the jury, asking whether Soreide was an organizer or leader.
Soreide further claims that because facts concerning his role as an organizer or
leader were not alleged in the indictment, whether he was an organizer or leader
should not have been submitted to the jury. Because the jury concluded beyond a
reasonable doubt that Soreide was an organizer or leader, and because Soreide was
sentenced to 236 months imprisonment, which was below the statutory maximum
of 20 years imprisonment, the district court did not unconstitutionally amend the
indictment by enhancing Soreide’s sentence based on his role as an organizer or
leader.
As to Soreide’s argument that the district court failed to make the necessary
findings under 18 U.S.C. § 3553(a), we have held that a sentencing court is not
obligated to specifically address and analyze on the record every factor set forth in
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§ 3553(a). United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (holding
that “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”). We find that the district court adequately stated its
reasons for imposing a sentence of 236 months imprisonment, as the court
specifically noted several § 3553(a) factors, including “the nature and
circumstances of the offense” and “the need for the sentence imposed” to “provide
just punishment” and “afford adequate deterrence.”
Accordingly, we AFFIRM the conviction, VACATE the sentence, and
REMAND for resentencing.
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