United States v. Borders, Jeffrey

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2007
Decided August 10, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-3847
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Southern District of Illinois
v.
No. 4:05CR40088-001-JPG
JEFFREY BORDERS,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Jeffrey Borders pleaded guilty to conspiracy to commit mail and wire fraud,
18 U.S.C. §§ 1349, 1341, 1343, after he scammed businesses into paying for
magazine advertisements they never purchased. Borders already had a string of
convictions, and while preparing the presentence report for this case, the probation
officer caught Borders running another scheme. The district court sentenced
Borders to 180 months’ imprisonment, 18 months above the high end of the
guidelines range. Borders raises two challenges to his sentence. First, he contends
that the district court should have, but did not, warn him of its intention to impose
a sentence above the guidelines imprisonment range. Second, he argues that the
district court did not sufficiently explain why it deviated from the guidelines range,
thus resulting in an unreasonable prison sentence. Both contentions are frivolous.
No. 06-3847 Page 2
In 1996 Borders and his wife began sending fraudulent invoices to
businesses that advertised in legitimate magazines. The invoices were, ostensibly,
for advertisements printed in other publications, but those publications did not
exist. Between 1996 and August 2003 the Borderses (joined in 2002 by their 17-
year-old son) billed $1.2 million to 3,385 businesses; more than 900 businesses
mailed them checks totaling over $305,000.
In their plea agreement, the parties calculated a total offense level of 25,
reflecting a base offense level of 6, see U.S.S.G. § 2B1.1(b)(1); increases for intended
losses exceeding $1 million, see id. § 2B1.1(b)(1)(I), more than 50 victims, see id.
§ 2B1.1(b)(2)(B), and use of a minor in committing the offense, see id. § 3B1.4; and a
3-level reduction for acceptance of responsibility, see id. § 3E1.1. The parties also
agreed that Borders’s criminal history placed him in category VI which combined
with his total offense level of 25 yielded a recommended imprisonment range of 110
to 137 months. The government agreed not to argue for a sentence outside the
guidelines range, and Borders waived his right to appeal except as to the
reasonableness of a sentence above the guidelines range as “determined by the
Court.”
Borders’s probation officer then prepared a presentence report, calculating
Borders’s criminal history and offense level as in the plea agreement, except that he
determined there were more than 250 victims, see U.S.S.G. § 2B1.1(b)(2)(C), which
resulted in a total offense level of 27. Coupling that with Borders’s criminal history,
the probation officer calculated an imprisonment range of 130 to 162 months. The
probation officer also discovered that Borders had not ceased his criminal activity.
In particular, Borders was trying to con restaurants by hounding them to refund
the price of food he never purchased.
At sentencing the district court adopted the guidelines calculations set forth
in the presentence report. Borders insisted that his actual criminal history was not
as bad as it looked on paper because, he said, his son and daughter actually
committed one of the crimes he pleaded guilty to in the past. He also maintained
that he tried the restaurant hustle only after a friend had put him onto it, and he
asked for leniency. But the court found that Borders had been “nothing but a liar, a
cheat, and a flim-flam man” all his life and was even “trying to do it here standing
before me now.” The court recounted Borders’s “abysmal” history, including eight
prior felonies, five for conduct similar to the ad scam. The court found that Borders
was “a threat to the general public” and needed “severe punishment.” The court
labeled Borders a “bad seed” and told him that the “high end of the guidelines isn’t
sufficient for you.” Concluding that “a guideline sentence doesn’t take into account
all” Borders had done, the court imposed a prison sentence of 180 months, three
years of supervised release, and restitution of $305,163.
No. 06-3847 Page 3
On appeal Borders first contends that the district court violated Fed. R.
Crim. P. 32(h) by not giving him advance notice of its intent to “depart” upward
from the guidelines range for his prison sentence. This argument is foreclosed by
his appeal waiver, which allows Borders to challenge only the reasonableness of an
above-guidelines sentence. In any event, his argument is also contrary to circuit
precedent. We have held that Rule 32(h) does not require the district court to warn
a defendant before imposing a sentence outside the range. United States v. Walker,
447 F.3d 999, 1007 (7th Cir. 2006). As we explained in Walker, after United States
v. Booker, 543 U.S. 220 (2005), all defendants are on notice that the sentencing
court may exercise its discretion to exceed the guidelines range as warranted by
factors in 18 U.S.C. § 3553(a), and no additional notice is required. See Walker, 447
F.3d at 1007.
Borders next challenges the reasonableness of his sentence, arguing that the
district court did not give sufficient reasons for exceeding the guidelines range. A
district court must explain, with reference to the 18 U.S.C. § 3553(a) sentencing
factors, its choice to sentence the defendant outside the guidelines range; the
farther outside the guidelines range the sentence is, the more compelling that
explanation must be. See United States v. Orozco-Vasquez, 469 F.3d 1101, 1107
(7th Cir. 2006); United States v. Valle, 458 F.3d 652, 656 (7th Cir. 2006). But the
court need not discuss every factor, so long as it explains its sentencing choice in a
manner consistent with § 3553(a). United States v. Nitch, 477 F.3d 933, 937 (7th
Cir. 2007); Orozco-Vasquez, 469 F.3d at 1109.
Here the district court adequately justified imposing a term of imprisonment
18 months beyond the 162-month high end of the advisory range. The court
commented on Borders’s “abysmal” criminal past and noted that Borders “can’t help
but try to screw people out of money.” See 18 U.S.C. § 3553(a)(1). Several times the
court referenced the need to protect the public from Borders and reasoned that he
deserved a severe punishment. See id. § 3553(a)(2)(A), (B), (C). The court
concluded that a guidelines sentence simply did not account for all of Borders’s
crimes. See id. § 3553(a)(1). Thus, Borders’s sentence is not unreasonable. See
Valle, 458 F.3d at 658-59 (upholding sentence 51 months above guidelines range
where district court explained that lengthy sentence was necessary because
defendant was likely to keep committing crimes); Walker, 447 F.3d at 1008 (noting
that increase of 30 months’ imprisonment over high end of advisory range was
appropriately justified by court’s discussion of nature and seriousness of offense and
need for deterrence, just punishment, and protection of public).
AFFIRMED.