United States v. Joseph Brunson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH BERNARD BRUNSON,
Defendant - Appellant.
No. 11-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY MCQUEEN,
Defendant - Appellant.
No. 11-4073
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY B. POUGH,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:08-cr-00615-MBS-1; 3:08-cr-00615-MBS-2; 3:08-cr-
00615-MBS-3;)
Argued: March 22, 2012 Decided: June 6, 2012
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: William Michael Duncan, AUSTIN, & ROGERS, PA, Columbia,
South Carolina; Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC,
Columbia, South Carolina; Parks Nolan Small, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for
Appellants. Winston David Holliday, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: William N. Nettles, United States Attorney, Jeffrey
Mikell Johnson, Assistant United States Attorney, Robert F.
Daley, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
2
PER CURIAM:
Joseph Brunson, Timothy McQueen, and Tony Pough
(collectively the Appellants) operated a Ponzi scheme that
bilked investors out of more than $56,000,000.00. Following a
jury trial, the Appellants were convicted of numerous offenses
arising from this scheme. They raise three issues on appeal:
(1) whether the district court erred when it appointed full-time
counsel over their respective objections; (2) whether the
district court erred in sentencing each of them to the low-end
of their respective Guidelines range; and (3) whether the
district court abused its discretion in keeping portions of a
related civil receivership case sealed until after the trial.
For the reasons stated below, we affirm.
I
From approximately September 2004 until August 2008,
the Appellants, who refer to themselves as the “Three Hebrew
Boys,” operated a Ponzi scheme primarily through Capital
Consortium Group (CCG), a business entity created to facilitate
the scheme. 1 CCG offered investors, referred to as
1
“Three Hebrews Boys” is a reference to the Book of Daniel,
which contains the Old Testament story of Daniel’s three
friends, Shadrach, Meshach, and Abednego, who were ordered by
King Nebechadnezzar to be thrown into a fiery furnace. Daniel’s
friends survived the experience through their faith in God.
(Continued)
3
“constituents” by the Appellants, thousands of investment
products, but the vast majority of these products related to
either debt elimination or high-yield returns. The debt
elimination products marketed by CCG guaranteed to eliminate the
debt (e.g., mortgage, auto, credit card, or student loan) of the
purchaser of the product. Typically, the purchaser agreed to
pay up-front a fraction of the debt and agreed to wait a period
of time before realizing any return on the investment. For its
part, CCG agreed to eliminate the debt at the conclusion of this
waiting period.
The high-yield return products offered what amounted
to a fanciful return on the principal. For example, the “Short-
Term Program” guaranteed that the investor would earn 10% per
month on his or her principal until the end of the year at which
time the investor was returned the principal. A 5% fee was
charged up-front for this program. The “Long-Term Program”
allowed investors to invest any amount, and, after ninety-one
business days, they received 10% of their principal every month
for the rest of their lives. A 5% fee was also charged up-front
for this program. The “College Tuition Program” offered
$100,000.00 toward four years of college tuition. The fees
Like Daniel’s friends, the Appellants claim to have been thrown
into a fiery furnace and survived as well.
4
charged depended on what grade the student was in at the time
the money was invested. For example, if the student was a
freshman in high school, for a $2,100.00 fee, the student would
receive $25,000.00 per year for four years of college.
Like many Ponzi schemes, early investors received
exceptionally high rates of return. Such returns, of course,
were not generated by the success of the investment products,
but rather through the contributions of new investors or from
earlier investors who continued to invest their money. In fact,
very little of the money received by CCG was invested at all. 2
Instead, the Appellants used the money for their personal use,
to buy, among other things, real estate, a $1,000,000.00 RV, a
Gulfstream jet, luxury cars, football stadium skyboxes, and
other luxury personal items. The actual loss generated by the
scheme was approximately $56,000,000.00.
Unfortunately, the individuals the Appellants targeted
to invest in their fraudulent investment programs were church
members, their families, and friends, and military service
members, their families, and friends. 3 Investment seminars were
2
Potential investors were told that CCG used “sweep
accounts” to deposit money in foreign exchange markets, which,
in turn, would yield extraordinarily high rates (sometimes in
the neighborhood of 200% to 500% per day) of return.
3
CCG held itself out as a “ministry” designed to free its
clients from the bondage of debt. McQueen and Brunson both
(Continued)
5
often held in churches and homes, and secrecy was a touchstone
of the scheme--investors were required to sign a nondisclosure
agreement which subjected them to a $1,000,000.00 fine if they
disclosed the contents of the program. Over 7,000 individuals
were victimized by the actions of the Appellants, with an actual
loss in excess of $56,000,000.00.
In August 2006, state law enforcement officers in
South Carolina began to investigate CCG after receiving
information from the North Carolina Secretary of State’s office
concerning a complaint filed with that office challenging the
business practices of CCG. In June 2007, a state search warrant
was executed at CCG’s offices in Columbia, South Carolina.
During the search, a thumb drive was seized which contained a
spreadsheet listing the names and addresses of over 7,000
investors. The spreadsheet showed that these investors invested
over $82,000,000.00 in approximately 14,000 CCG programs.
On August 1, 2007, the government filed a sealed, ex
parte motion for a preindictment restraining order to prevent
the Appellants from disposing of assets related to CCG and to
appoint a receiver who would identify and preserve CCG-related
assets while the investigation into CCG was pending. The
following day, the district court entered a sealed order
received honorable discharges from the United States Army.
6
granting the government’s motion. On August 31, 2007, the
district court converted the restraining order into a
preliminary injunction.
On September 5, 2007, the district court entered an
order outlining the receiver’s duties, as well as listing the
Appellants’ responsibilities concerning their cooperation with
the receiver. Among other things, the order specified that the
Appellants were to deliver property, monies, books, and records
upon the receiver’s demand and were to take no action, directly
or indirectly, to hinder, obstruct, or otherwise interfere with
the receiver in the conduct of his duties or with the custody,
possession, management, or control by the receiver of the funds,
assets, or premises involved in the case.
On May 27, 2008, a criminal complaint against the
Appellants was filed in the United States District Court for the
District of South Carolina. On June 20, 2008, a federal grand
jury in the District of South Carolina returned an indictment
charging the Appellants with one count of conspiracy to commit
mail fraud under 18 U.S.C. §§ 1341 and 1349 (Count One) and
thirty-five substantive counts of mail fraud under 18 U.S.C.
§§ 1341 and 2 (Counts Two to Thirty-Six). The indictment also
included a number of criminal forfeiture counts.
On August 21, 2008, the grand jury returned a
superseding indictment against the Appellants which added ten
7
counts of transporting stolen funds in interstate commerce under
18 U.S.C. §§ 2314 and 2 (Counts Thirty-Seven to Forty-Six) and
twelve counts of money laundering under 18 U.S.C. §§ 1957 and 2
(Counts Forty-Seven to Fifty-Eight).
Prior to trial in the criminal case, the district
court released certain deposition transcripts in the
receivership case to the Appellants. On October 28 and November
2, 2009, McQueen and Pough filed motions to unseal the remainder
of the receivership case.
A jury trial began on November 10, 2009 and concluded
on November 20, 2009. The jury returned a verdict of guilty on
all counts. The jury also returned an $82,000,000.00 forfeiture
verdict against the Appellants.
On November 29, 2009, the district court granted in
part and denied in part the motions to unseal the remainder of
the receivership case. In its order, the district court ruled
that certain documents generated “for the court’s eyes only” and
those “concern[ing] grand jury matters” would remain sealed.
The district court conducted the Appellants’
sentencing hearing on December 14, 2010. By a judgment entered
on January 14, 2011, the district court sentenced Pough to a
total of 360 months’ imprisonment and sentenced Brunson and
McQueen each to a total of 324 months’ imprisonment. The
Appellants filed timely notices of appeal.
8
II
The principal claim raised by the Appellants concerns
the district court’s decision appointing full-time counsel in
January 2009 over their objections. According to the
Appellants, this decision violated their Sixth Amendment right
to counsel. Before turning to the relevant law concerning this
claim, we set forth the relevant facts.
A
On June 3, 2008, at the Appellants’ detention hearing
in the criminal case, a United States Magistrate Judge
provisionally appointed the same three attorneys who had
represented the Appellants in the receivership case. During an
attorney status conference on June 23, 2008, the magistrate
judge relieved provisionally appointed counsel based on the
Appellants’ indication that they wanted to proceed pro se.
On July 21, 2008, the government filed a motion for
the district court to appoint standby counsel to assist the
Appellants. On July 29 and 30, 2008, prior to a hearing on the
government’s motion, the Appellants filed several nonsensical
pro se motions. These motions were styled as a “Motion to
Dismiss [Pursuant to] F.R.C.P. 12,” a “Third-Party Complaint in
Rem,” a “Notice and Demand Without Dishonor for Discovery by
Interrogatory for the Record,” and a “Demand to Quash Due to
9
Assuming Facts Not in Evidence, Falsification of the Record,
Withholding Exculpatory Evidence, and Denial of Due Process &
Fraud.”
In these voluminous filings, the Appellants raised
various nonsensical and frivolous claims attacking the
jurisdiction of the district court. For example, the Appellants
claimed that the United States District Court for the District
of South Carolina “is a privately owned Commercial Corporation”
and that the United States is a “501C3 NON PROFIT OR RELIGIOUS
CORPORATION or CHARITABLE TRUST.” The Appellants insisted that
they were entitled to full payment and the surrender of
“Corporate Surety Bonds” that the government owed for non-
payment of gift and estate taxes. The Appellants also
contended that they were “Civilly Dead under the Doctrine of
Mortmain or Deadhand as designated in French.” 4
On August 11, 2008, the magistrate judge conducted a
hearing on the government’s motion to appoint standby counsel
for the Appellants. During this hearing, the Appellants each
refused to acknowledge that they were the defendants in the
case. When addressed by the magistrate judge, Brunson asked for
4
Mortmain, French for “deadhand,” generally refers to land
that is held “in perpetuity by an ecclesiastical or other
corporation.” Black’s Law Dictionary 1035 (8th ed. 1999). A
mortmain statute typically is designed to prevent such entities
from holding land in perpetuity. Id.10
clarification whether the magistrate judge was addressing the
“defendant or . . the live, breathing man, Joseph Brunson.”
Brunson claimed that he was appearing by “special visitation,”
as a “third party intervenor,” and/or as a “cross plaintiff.”
McQueen and Pough made similar nonsensical claims. At the
conclusion of the hearing, the magistrate judge appointed the
Appellants’ three previous attorneys as standby counsel and
informed the Appellants that they could “take advantage of their
abilities and skills and knowledge or not.”
On August 18, 2008, the district court held a hearing
on various motions filed by the Appellants. The Appellants
again announced that they were not the defendants and were not
under the district court’s jurisdiction, arguing that the
indictment had been filed against a corporation spelled in all
capital letters whereas they spelled their names in upper-case
and lower-case letters. When invited by the district court to
offer argument in support of their motions, the Appellants
recited a litany of nonsensical claims. Based on these claims,
the district court advised the Appellants to retain counsel or
to take advantage of the services of their appointed counsel.
The district court then denied the Appellants’ motions.
On August 22, 2008, a day after the superseding
indictment was returned, the Appellants filed additional pro se
motions to quash the indictment, again arguing that the district
11
court lacked jurisdiction. The same day, the Appellants filed a
pro se notice of appeal from the district court’s denial of
their motions on August 18, 2008. On February 24, 2009, we
dismissed this interlocutory appeal.
On September 26, 2008, the Appellants filed yet
another pro se motion in the district court. In the motion,
titled “Ex Parte For Declaratory Judgment and Relief,” the
Appellants indicated that they were sovereigns not subject to
the district court’s jurisdiction.
On January 5, 2009, the government filed a motion to
have standby counsel appointed as full-time counsel for all
three of the Appellants. In the motion, the government outlined
the Appellants’ disruptive and obstructive conduct. The
district court held a hearing on the government’s motion on
January 29, 2009. At the hearing, Brunson refused to
acknowledge that he was a defendant in the case. Instead, he
claimed that he was the “attorney in fact for the defendant
Joseph Bernard Brunson,” appointed by the defendant “Joseph
Bernard Brunson.” For his part, McQueen claimed the criminal
case was “settled and closed” and that he was not there as a
defendant in the criminal case, but rather wished to proceed
“sui juris” on behalf of the defendant Timothy McQueen named in
12
the indictment. 5 Pough took a similar approach to that of
McQueen. At the conclusion of the hearing, the district court
granted the government’s motion, opining that the Appellants
engaged in disruptive and obstructive conduct necessitating the
appointment of full-time counsel. In so ruling, the district
court left the door open for the Appellants to secure substitute
counsel, if they decided to retain counsel on their own.
Unhappy with the district court’s ruling, the
Appellants, shortly thereafter, moved to rescind the order
appointing full-time counsel. A hearing on this motion was held
on May 7, 2009. At the hearing, the district court observed
that a trial could not proceed without the appointment of full-
time counsel because the Appellants refused to acknowledge they
were the defendants named in the indictment. Along a similar
vein, the district court observed that the trial could not move
forward because the Appellants would not even acknowledge who
was “talking” to the district court. At the conclusion of the
hearing, the district court denied the motion, relying, again,
on the Appellants’ disruptive and obstructive behavior.
On October 27, 2009, the Appellants began to flood the
district court with another barrage of pro se filings. These
5
“Sui juris” means in his “own right,” Black’s Law
Dictionary 1475 (8th ed. 1999) and is usually applied in a civil
context to denote that a party is of full age and capacity.
Cain v. Vontz, 703 F.2d 1279, 1281 (11th Cir. 1983).
13
included motions for “Abatement of Proceeding Pending
Administrative Proceeding to Settle Matter,” notices of
termination of appointed counsel, and “Request[s] for
Forgiveness.” The district court conducted a pretrial
conference the same day as these filings. Brunson claimed that
he was appearing as “Joseph Brunson, intervenor, here in the
matter for Joseph Brunson the defendant.” Brunson also claimed
that he was appearing as intervenor “to assist the parties to
settle all claims and charges outstanding to this matter.”
Brunson also refused to come to the podium unless the district
court acknowledged that he was “Joseph Brunson, intervenor.”
Like Brunson, McQueen and Pough claimed to appear at the hearing
as “intervenors.” Like many times before, the Appellants
continued to press frivolous and nonsensical arguments. They
also insisted that they wanted to dismiss their appointed
counsel and settle the case “administratively.” When the
district court advised the Appellants that they needed to talk
with their appointed counsel if they were interested in plea
negotiations, the Appellants stated that they “would
conditionally accept [the] offer if [counsel was willing] to
accept all liability.” The district court denied all of the
Appellants’ frivolous motions, as well as the request to relieve
appointed counsel.
14
The Appellants’ disruptive and obstructive conduct
continued all the way to the trial. During a hearing on the day
of jury selection, Brunson repeatedly pressed nonsensical and
frivolous arguments, arguing that he was not a defendant in the
case and that the district court did not have jurisdiction. At
one point during yet another challenge to the district court’s
jurisdiction, the district court observed that Brunson was “out
of order.” McQueen and Pough joined these arguments, which
ultimately were rejected by the district court.
B
The Sixth Amendment guarantees a criminal defendant
the right to “the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. This right guarantees criminal defendants the
right to trial counsel and also the right to self-
representation. Faretta v. California, 422 U.S. 806, 835
(1975). The right of self-representation generally must be
honored even if the district court believes that the defendant
would benefit from the advice of counsel. Id. at 834.
The right to self-representation, however, “is not
absolute.” Indiana v. Edwards, 554 U.S. 164, 171 (2008).
“[T]he trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist
misconduct.” Faretta, 422 U.S. at 834 n.46. “The right of
15
self-representation is not a license to abuse the dignity of the
courtroom” or “a license not to comply with relevant rules of
procedural and substantive law.” Id.; see also United States
v. Frazier–El, 204 F.3d 553, 560 (4th Cir. 2000) (“The right [to
self-representation] does not exist . . . to be used as a tactic
for delay, for disruption, for distortion of the system, or for
manipulation of the trial process.”).
In this case, the district court had sufficient
grounds to revoke the Appellants’ pro se status and appoint
full-time counsel for them. Throughout this case (and in the
receivership case as well), the Appellants disrupted the
proceedings, making it difficult, if not impossible, for the
district court to try the case without the appointment of full-
time counsel. By the time the district court appointed full-
time counsel for the Appellants, the Appellants had filed
numerous nonsensical pro se motions, and the district court had
presided over numerous hearings in which the Appellants put
forth such nonsensical arguments. From the get-go, the
Appellants refused to acknowledge that they were the defendants
named in the indictment, indicating instead that they were the
“intervenors.” Under such circumstances, it was impossible for
the district court to conduct any type of meaningful dialogue
with the Appellants, and, without such dialogue, it was
impossible for the district court to try the case. Moreover,
16
after the district court’s January 2009 ruling, the Appellants
gave the district court no indication that they were willing to
stop their disruptive and obstructive conduct. At the hearing
on the day of jury selection, the Appellants continued to claim
they were not defendants in the case and that the district court
did not have jurisdiction. In sum, under the circumstances
before it, the district court certainly acted within its
discretion when it appointed full-time counsel to thwart the
Appellants’ ongoing manipulative effort to delay and disrupt the
criminal trial.
In the alternative to their argument that the
circumstances in January 2009 did not justify the appointment of
full-time counsel, the Appellants suggest the government was
required to wait until the beginning of trial to make the
appointment of full-time counsel motion. We reject this
argument. Numerous courts understandably have permitted
district courts to revoke a defendant’s pro se status prior to
trial. United States v. Mabie, 663 F.3d 322, 329 (8th Cir.
2011) (upholding the pretrial revocation of a defendant’s pro se
status); United States v. Mosley, 607 F.3d 555, 558-59 (8th Cir.
2010) (same). To hold otherwise flies in the face of common
sense. By the time of trial, the government has incurred the
expense of bringing the case to trial (securing witnesses,
etc.), and it would materially prejudice the government to
17
require it to wait until the beginning of the trial to move for
the appointment of full-time counsel. Moreover, requiring the
government to wait until the beginning of trial also places a
burden on the district court, which will in all likelihood have
to continue the trial to allow appointed counsel time to get
familiar with the case. In short, embracing the Appellants’
position here would permit them, and similar defendants, to
distort the trial process in contravention to the admonition in
Frazier–El that the right of self-representation cannot be so
employed.
III
The Appellants also challenge the district court’s
decision to keep portions of the receivership case sealed during
their trial. The Appellants do not allege that any particular
prejudice flowed from this district court action. Rather, they
contend that the district court’s decision to keep portions of
the receivership case sealed during the trial amounts to
structural error requiring reversal.
In support of their structural error argument, the
Appellants rely on Arizona v. Fulminante, 499 U.S. 279 (1991),
wherein the Court noted five structural errors that mandate
automatic reversal of a conviction: denial of counsel, trial by
a biased judge, the right to self-representation at trial,
18
exclusion by race from a grand jury, and denial of a public
trial. The five “structural errors” listed in Fulminante, as
well as a few others that have since been recognized, mandate
automatic reversal because such errors “call into question the
very accuracy and reliability of the trial process.” McGurk v.
Stenberg, 163 F.3d 470, 474 (8th Cir. 1998).
The Appellants recognize that the error they allege
“does not fit neatly into Supreme Court structural error
jurisprudence.” Appellants’ Br. at 46. Nevertheless, they
suggest the manner in which the district court handled the
receivership case implicates their Sixth Amendment right to a
public trial. According to the Appellants, because portions of
the receivership case remained sealed, their trial was not a
public trial.
The Sixth Amendment guarantees a defendant the right
to a public trial. U.S. Const. amend. VI; Presley v. Georgia,
130 S. Ct. 721, 724 (2010); Press–Enterprise Co. v. Superior
Court of Cal., 464 U.S. 501, 511 (1984). This right is premised
on the notion that “‘judges, lawyers, witnesses, and jurors will
perform their respective functions more responsibly in an open
court than in secret proceedings.’” Waller v. Georgia, 467 U.S.
39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S. 532, 588
(1965) (Harlan, J., concurring)). The right “is for the benefit
of the accused; that the public may see he is fairly dealt with
19
and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.” Id.
at 46 (citations and internal quotation marks omitted); see also
In re Oliver, 333 U.S. 257, 270 (1948) (“The knowledge that
every criminal trial is subject to contemporaneous review in the
forum of public opinion is an effective restraint on possible
abuse of judicial power.”).
“The central aim of a criminal proceeding [is] to try
the accused fairly,” and the right to a public trial serves the
purpose of “ensuring that judge and prosecutor carry out their
duties responsibly . . . , encourag[ing] witnesses to come
forward[,] and discourag[ing] perjury.” Waller, 467 U.S. at 46.
Thus, “[t]he right to a public trial is not only to protect the
accused but to protect as much the public’s right to know what
goes on when men’s lives and liberty are at stake, for a secret
trial can result in favor to as well as unjust prosecution of a
defendant.” Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965).
Here, undeniably, the Appellants enjoyed a public
trial. There is no allegation that the courtroom was closed for
any meaningful duration, thus, it remained open to the public,
ensuring that the trial was subject to contemporaneous review in
the court of public opinion. Cf. Press-Enterprise, 464 U.S. at
509 (noting that trial closures are to be “rare and only for
20
cause shown that outweighs the value of openness”). Moreover,
the fact that portions of the receivership case remained sealed
is of no moment. The government did not use, at trial or at
sentencing, information contained in the receivership case or
information that was not previously disclosed to the Appellants.
Thus, the government’s evidence at trial was subject to scrutiny
through both cross-examination and assessment by the public at
large. Cf. Waller, 467 U.S. at 46 (“[T]here can be little doubt
that the explicit Sixth Amendment right of the accused is no
less protective of a public trial than the implicit First
Amendment right of the press and public.”). Finally, from our
review of the record, it is clear that both the government and
the district court handled their respective duties fairly and
responsibly. 6
IV
The Appellants also challenge their sentences. The
gist of their challenge is that the district court abused its
discretion when it refused to embrace their argument premised on
a policy disagreement with the Fraud Guideline.
6
The Appellants also argue that the district court violated
their right to due process under the Fifth Amendment when it
kept portions of the receivership case sealed during the course
of their trial. We have reviewed this argument and find it to
be without merit.
21
A
Prior to sentencing, a presentence investigation
report (PSR) was prepared for each appellant. The Guidelines
calculations in the PSRs were similar in all material aspects,
except for the Criminal History Category. Pough’s Criminal
History Category was II, while Brunson’s and McQueen’s was I.
The total offense level for each appellant was 41, calculated as
follows. The base offense for the substantive mail fraud counts
was 7, United States Sentencing Commission Guidelines Manual
(USSG) § 2B1.1(a)(1). 7 Twenty-four levels were added because the
loss exceeded $50,000,000.00 but was less than $100,000,000.00,
id. 2B1.1(b)(1)(M). Six levels were added because the offense
involved more than 250 victims, id. 2B1.1(b)(2)(C). Two levels
were added because the offense involved sophisticated means, id.
2B1.1(b)(9)(C), and two levels were added for obstruction of
justice, id. 3C1.1.
At sentencing, the Appellants pressed an argument
based on a policy disagreement with the Fraud Guideline.
According to the Appellants, Guideline sentences for fraud
7
All of the counts of conviction were grouped pursuant to
USSG § 3D1.2(c), which deals with groups of closely-related
counts, because all of these counts were indeed closely related.
According to USSG § 3D1.3(a), when counts are grouped pursuant
to USSG § 3D1.2(a) through (c), the highest offense level of the
counts in the group is used. Here, the counts relating to mail
fraud produced the highest offense level and, therefore, were
used for total offense level calculation purposes.
22
offenses are too high, are not based on past practice or
empirical data, and have been increasingly rejected by
sentencing courts in high-loss fraud cases. The Appellants also
suggested that the Fraud Guideline has an excessive number of
enhancements, many of which are overlapping and duplicative.
The district court filed a detailed sentencing memorandum for
each appellant explaining why, after consideration of the 18
U.S.C. § 3553(a) factors, a sentence at the low-end of the
Guidelines range was appropriate. In particular, the district
court rejected the Appellants’ argument resting on their policy
disagreement with the Fraud Guideline, holding that the
circumstances of each case did not warrant a sentence outside of
the Guidelines range. On appeal, the Appellants continue to
press their policy-based arguments rejected by the district
court below.
B
We review a sentence for reasonableness, applying the
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.We assess whether the district court properly calculated the
advisory Guidelines range, considered the factors set forth in
18 U.S.C. § 3553(a), analyzed any arguments presented by the
23
parties, and sufficiently explained the selected sentence. Id.at 49–50; United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir.
2010). If there is no procedural error, we review the
substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
If the sentence is within the Guidelines range, we apply a
presumption of reasonableness. Rita v. United States, 551 U.S.
338, 346–56 (2007) (upholding presumption of reasonableness for
within-Guidelines sentence).
In this case, the sentences imposed by the district
court are both procedurally and substantively reasonable. With
respect to each appellant, the district court properly
calculated the advisory Guidelines range, considered the factors
set forth in 18 U.S.C. § 3553(a), analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence in detailed sentencing memorandums. Moreover,
the totality of the circumstances demonstrate that the chosen
sentences satisfied the standards in 18 U.S.C. § 3553(a).
Finally, with respect to the policy disagreement raised by the
Appellants, while it is true that a district court may vary from
Guidelines ranges based solely on policy considerations,
24
including disagreements with the Guidelines, Kimbrough v. United
States, 552 U.S. 85, 101 (2007), it is equally true that a
district court is not required to do so. See United States v.
Munjak, 669 F.3d 906, 907 (8th Cir. 2012) (“That a district
judge now may be permitted to deviate from the guidelines based
on a policy disagreement with the Sentencing Commission,
however, does not mean that the judge is required to do so.”);
United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011)
(“[D]istrict courts are not obligated to vary from the child
pornography Guidelines on policy grounds if they do not have, in
fact, a policy disagreement with them.”); United States v.
Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009) (“In
appropriate cases, district courts certainly may disagree with
the Guidelines for policy reasons and may adjust a sentence
accordingly. But if they do not, we will not second-guess their
decisions under a more lenient standard simply because the
particular Guideline is not empirically-based.”); United States
v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007) (noting that “a
sentence is not rendered unreasonable merely because of a
district court’s refusal to deviate from the advisory
[G]uideline range based on disagreements with the policies
underlying a particular Guideline provision.”) (citation and
internal quotation marks omitted). Here, the district court
acted within its discretion when it declined to embrace the
25
policy disagreements raised by the Appellants.
V
For the reasons stated herein, the judgments of the
district court are affirmed.
AFFIRMED
26