United States v. Vincent, Mark K.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 7, 2005
Decided October 27, 2005
Before
Hon. JOEL M. FLAUM, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 03-3305
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District
of Illinois
v.
No. 02 CR 30042
MARK K. VINCENT,
Defendant-Appellant. Richard Mills,
Judge.
ORDER
A jury convicted defendant-appellant Mark K. Vincent of four counts of wire
fraud, two counts of mail fraud, and two counts of making false statements to obtain
a loan. On August 8, 2003, the district count sentenced defendant to 46 months
imprisonment on each count, to be served concurrently. This sentence was in the
middle of the Sentencing Guidelines range of 41 to 51 months. The district court also
sentenced defendant to five years supervised release and ordered him to pay
$684,475.97 in restitution and an $800.00 special assessment.
Defendant filed a timely notice of appeal. On July 25, 2005, this Court affirmed
defendant’s convictions, but ordered a limited remand to the district court pursuant
to the procedures set forth in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005),
to determine whether that court would have imposed the same sentence had it known
that the Sentencing Guidelines were advisory. After considering the parties’ briefs
No. 03-3305 Page 2
and the factors in 18 U.S.C. § 3553(a), the district court issued an opinion stating that
it would have imposed the same sentence under an advisory guidelines regime.
Defendant’s sole argument is that further remand is necessary because the
district court did not give any weight to the “history and characteristics” element of 18
U.S.C. § 3553(a). According to defendant, the district court erred in defendant’s initial
sentencing by refusing to grant a downward departure based on defendant’s alcohol
addiction, family ties and responsibilities, and community involvement. Defendant
argues that the district court erred on remand by refusing to lower his sentence based
on these same factors. Defendant maintains that his sentence therefore is
unreasonable.
The government contends that the district court correctly found that defendant’s
46-month sentence is reasonable, based on a consideration of the § 3553(a) factors.
We agree with the government. First, the sentence imposed by the district court
was properly calculated and within the Sentencing Guidelines range and thus enjoys
a presumption of reasonableness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005). Defendant does not challenge the district court’s determination of this
range.
Second, defendant has not identified any basis for finding that the presumption
of reasonableness has been overcome in this case. The district court heard the parties’
arguments and explicitly found that it would have imposed the same sentence had it
understood the Guidelines to be advisory. The district court explained:
[T]he range of 41 to 51 months properly took into account important
sentencing factors, such as the amount of loss, the Defendant’s abuse of
his position of trust, and the Defendant’s perjury at trial. Additionally,
the range reflected that the Defendant did not take responsibility for his
criminal conduct, instead deciding to go to trial. . . .
. . . In determining that the sentence previously imposed remains
the appropriate sentence, the Court has deemed particularly relevant
factors such as the seriousness of the Defendant’s criminal conduct, the
need to provide just punishment and the need to afford adequate
deterrence.
United States v. Vincent, No. 02-30042, at 5-6 (C.D. Ill. Sept. 27, 2005).
This explanation is sufficient to demonstrate that defendant’s sentence was
reasonable. The district court was not obligated to provide this Court with a detailed
explanation of its consideration of each of the factors listed in §3553(a). Nor was the
district court required to accept or give any particular weight to defendant’s argument
No. 03-3305 Page 3
that he deserves a lower sentence based on his alcohol addiction and family and
community commitments. See United States v. Dean, 414 F.3d 725, 729-30 (7th Cir.
2005) (judge’s duty to consider the statutory factors is not a duty to make findings);
United States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005) (“Judges need not
rehearse on the record all the considerations that 18 U.S.C. § 3553(a) lists; it is enough
to calculate the range accurately and explain why (if the sentence lies outside it) this
defendant deserves more or less.”). The district court quite reasonably found that the
needs of just punishment and adequate deterrence should be given heavy weight in
this case. Defendant’s crimes resulted in a loss of almost $700,000 borne by multiple
victims, defendant abused his fiduciary position as an attorney and title insurance
agent to commit fraud, and defendant attempted to avoid responsibility by lying at
trial.
Because the district court would have imposed the same sentence post-Booker
and because the sentence is reasonable, we conclude that defendant’s sentence was not
the result of plain error. Accordingly, we AFFIRM the judgment of the district court.