United States v. Marius Mastan

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0013n.06
No. 21-1334
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Jan 05, 2022
UNITED STATES OF AMERICA,
) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE WESTERN DISTRICT OF
) MICHIGAN
MARIUS ADRIAN MASTAN,
)
)
Defendant-Appellant.
)
Before: GILMAN, KETHLEDGE, and LARSEN, Circuit Judges.
KETHLEDGE, Circuit Judge. Marius Adrian Mastan pled guilty to conspiracy to commit
financial-institution fraud, in violation of 18 U.S.C. § 1349, and aggravated identity theft, in
violation of 18 U.S.C. § 1028A. Mastan appeals his sentence, arguing that the district court plainly
erred in failing to grant him a mitigating-role adjustment. We affirm.
Beginning in September 2019, Mastan and a co-conspirator, Ioan Flore, installed skimming
devices and pin-hole cameras on ATMs in Michigan, Nebraska, and Iowa. Mastan, Flore, and
other members of the conspiracy then used the information they collected to steal money from
bank accounts. Mastan stole about $50,000, and the conspiracy as a whole stole $312,606 from
more than 2,900 people. In May 2020, police arrested Mastan and Flore. Mastan eventually pled
guilty to one count of conspiracy to commit financial-institution fraud and one count of aggravated
identity theft.
No. 21-1334, United States v. Mastan
Mastan’s Guidelines range for the conspiracy count was 41 to 51 months’ imprisonment.
He also faced a mandatory consecutive two-year sentence for aggravated identity theft under
§ 1028A. At sentencing, Mastan requested a below-Guidelines sentence for the conspiracy charge.
He argued that, among other factors, he “was a lower level participant and received only a portion
of the proceeds in this offense.” The district court agreed that Mastan “played a minor role as a
lower level participant in the conspiracy,” but also found that, without Mastan, “a lot of the major
harm would not have occurred.” The district court thereafter granted the government’s motion for
a twelve-month downward departure for substantial assistance, sentenced Mastan to 29 months for
the conspiracy count, and imposed the mandatory consecutive two-year sentence for aggravated
identify theft. Mastan did not object to his sentence. This appeal followed.
Mastan argues that the district court plainly erred when it failed to apply a minor-role
reduction to his conspiracy charge under U.S.S.G. § 3B1.2(b). That section allows a district court
to reduce a defendant’s Guidelines range by two levels if he was a “minor participant” who was
“substantially less culpable than the average participant in the criminal activity.” U.S.S.G.
§ 3B1.2, cmt. n.3(A).
Prior to sentencing, the probation office produced a presentence report, which described
Mastan as “an average participant in the conspiracy,” rather than a minor one. Mastan twice
expressly declined to object to the findings of the presentence report, which means he “admitted
that fact.” United States v. Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005). That admission is
enough to deny him the reduction. Moreover, Mastan played a significant role in the conspiracy:
he both installed skimming devices on ATM machines and “cashed out” funds using depositors’
information obtained from these devices; and Mastan engaged in this criminal conduct on at least
ten occasions. True, the district court stated during the sentencing hearing that Mastan had
2
No. 21-1334, United States v. Mastan
“a minor role as a lower level participant in the conspiracy.” But the district court was not using
the word “minor” as a term of art under § 3B1.2. The district court did not plainly err by failing
sua sponte to grant Mastan a minor-role reduction that he never requested.
The district court’s judgment is therefore affirmed.
3