USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-12716 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARVAHAM ZANO,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cr-60200-AHS-1 ____________________ USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 2 of 7
2 Opinion of the Court 23-12716
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Arvaham Zano appeals his total 96-month sentence for wire fraud, interstate transportation of stolen property, and failure to give up possession of household goods. Zano argues that the court procedurally erred when it improperly applied a two-level enhance- ment pursuant to U.S.S.G. § 2B1.1(b)(10)(A). Zano also argues that the court erred when it orally pronounced that he would be sen- tenced to one year of supervised release for Count 13 but wrote in its written judgment that he would be sentenced to three years of supervised release for Count 13. I. We “review the district court’s factual findings for clear er- ror, and its interpretation and application of the Guidelines de novo.” United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir. 2012). The Sentencing Guidelines provide for a two-level enhance- ment if “the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforce- ment or regulatory officials.” U.S.S.G. § 2B1.1(b)(10)(A). The Guidelines and commentary do not define the term “re- locate.” Where the Guidelines do not define a term, we are “bound to give the term its ordinary meaning.” United States v. Digiorgio, 193 F.3d 1175, 1178 (11th Cir. 1999). To “relocate” means to USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 3 of 7
23-12716 Opinion of the Court 3
“establish or lay out in a new place.” Webster’s 3d New Int’l Una- bridged Dictionary 1919 (1976). A panel of this Court in held in United States v. Morris, 153 F. App’x 556, 559 (11th Cir. 2005), an unpublished opinion, that the district court in that case erred when it applied the relocation en- hancement to Morris. The panel held that the government did not present evidence that Morris or any member of his conspiracy “tried to relocate the scheme to another jurisdiction, under the or- dinary meaning of that word.” Id. The panel explained that while Morris recruited others for trips to other jurisdictions, “the addi- tion of co-conspirators implies an expansion, and not a relocation, of the conspiracy.” Id. The Seventh Circuit has similarly held that the enhancement did not apply when the scheme operated in mul- tiple states but there was no evidence that it was relocated and De- troit was always the hub of the operation. United States v. Hines- Fla, 789 F.3d 751, 756 (7th Cir. 2015) (“[W]e believe application of this enhancement requires more than just the operation of a multi- jurisdictional scheme”). The government relies on a Sixth Circuit decision which re- jected a defendant’s argument that his home base of Toledo meant that the enhancement did not apply. In United States v. Woodson, 960 F.3d 852 (6th Cir. 2020), the Sixth Circuit held that “‘where travel to other jurisdictions’ to avoid detection by law enforcement is ‘a key component of a fraud scheme,’ the enhancement applies, regard- less [of ] whether the conspirators periodically return to a station- ary hub to perform part of the scheme.” Id. at 855 (quoting United USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 4 of 7
4 Opinion of the Court 23-12716
States v. Thornton, 718 F. App’x 399, 403–04 (6th Cir. 2018)). The defendant and his accomplices visited jewelry stores across the re- gion and moved from location to location “to avoid detection;” “their scheme seemingly would only work once in a given area, as the events leading up to Woodson's arrest demonstrate.” Id. at 856. Here, the court erred when it applied the relocation en- hancement to Zano’s guidelines pursuant to U.S.S.G. § 2B1.1.1(b)(10)(A). Based on the dictionary definition of the word relocation, the government did not meet its burden of proving that Zano moved any part of his scheme to a new place to avoid detec- tion. U.S.S.G. § 2B1.1(b)(10)(A); Digiorgio, 193 F.3d at 1178. The government only demonstrated that there were victims in over 32 states and that Zano’s drivers would move items and drop them in different storage units in different states. The only evidence to which the government points is the multi-jurisdictional nature of the criminal enterprise. The government’s position seems to be that the relocation enhancement would apply whenever the crimi- nal enterprise operates in interstate commerce. We reject that po- sition and hold that application of the enhancement requires some- thing more—some evidence that the location of the criminal en- terprise was intended to change (i.e. relocate) over time to evade law enforcement or regulatory officials. In this case we cannot conclude that the government proved that “something more.” For example, the government did not prove that Zano would have the drivers move the items to different places in order to evade the authorities; and, unlike the cases the USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 5 of 7
23-12716 Opinion of the Court 5
government relies on, there was no evidence that Zano would move to a different state once the authorities began to suspect his fraud. The evidence showed only that Zano operated a fraudulent moving business that operated in jurisdictions all over the country, as it was originally intended to do and that it continued to do for the duration of the scheme. There was no evidence of an intent to evade law enforcement 1 relating to the location or relocation of the criminal operation. Therefore, the court erred when it applied the two-level relocation enhancement to Zano’s guidelines.
II. The correction of a clerical error under Federal Rule of Criminal Procedure 36 is a legal issue that we review do novo. United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016). Federal Rule of Criminal Procedure 36 provides that a court “may at any time correct a clerical error in a judgment . . . arising from oversight or omission.” Fed. R. Crim. P. 36. “Rule 36 may not be used to make a substantive alteration to a criminal sen- tence.” Davis, 841 F.3d at 1261. A court’s correction of a written judgment “[cannot] prejudice the defendant in any reversible way.” Id. (quotation marks omitted, alteration in original). Where there
1 Of course, as in every criminal enterprise, there was other evidence—not
related to the location or relocation of the criminal enterprise—of an intent to avoid detection by law enforcement—e.g. the failure to obtain the appropriate license and the use of several names. USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 6 of 7
6 Opinion of the Court 23-12716
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USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-12716 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARVAHAM ZANO,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cr-60200-AHS-1 ____________________ USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 2 of 7
2 Opinion of the Court 23-12716
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Arvaham Zano appeals his total 96-month sentence for wire fraud, interstate transportation of stolen property, and failure to give up possession of household goods. Zano argues that the court procedurally erred when it improperly applied a two-level enhance- ment pursuant to U.S.S.G. § 2B1.1(b)(10)(A). Zano also argues that the court erred when it orally pronounced that he would be sen- tenced to one year of supervised release for Count 13 but wrote in its written judgment that he would be sentenced to three years of supervised release for Count 13. I. We “review the district court’s factual findings for clear er- ror, and its interpretation and application of the Guidelines de novo.” United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir. 2012). The Sentencing Guidelines provide for a two-level enhance- ment if “the defendant relocated, or participated in relocating, a fraudulent scheme to another jurisdiction to evade law enforce- ment or regulatory officials.” U.S.S.G. § 2B1.1(b)(10)(A). The Guidelines and commentary do not define the term “re- locate.” Where the Guidelines do not define a term, we are “bound to give the term its ordinary meaning.” United States v. Digiorgio, 193 F.3d 1175, 1178 (11th Cir. 1999). To “relocate” means to USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 3 of 7
23-12716 Opinion of the Court 3
“establish or lay out in a new place.” Webster’s 3d New Int’l Una- bridged Dictionary 1919 (1976). A panel of this Court in held in United States v. Morris, 153 F. App’x 556, 559 (11th Cir. 2005), an unpublished opinion, that the district court in that case erred when it applied the relocation en- hancement to Morris. The panel held that the government did not present evidence that Morris or any member of his conspiracy “tried to relocate the scheme to another jurisdiction, under the or- dinary meaning of that word.” Id. The panel explained that while Morris recruited others for trips to other jurisdictions, “the addi- tion of co-conspirators implies an expansion, and not a relocation, of the conspiracy.” Id. The Seventh Circuit has similarly held that the enhancement did not apply when the scheme operated in mul- tiple states but there was no evidence that it was relocated and De- troit was always the hub of the operation. United States v. Hines- Fla, 789 F.3d 751, 756 (7th Cir. 2015) (“[W]e believe application of this enhancement requires more than just the operation of a multi- jurisdictional scheme”). The government relies on a Sixth Circuit decision which re- jected a defendant’s argument that his home base of Toledo meant that the enhancement did not apply. In United States v. Woodson, 960 F.3d 852 (6th Cir. 2020), the Sixth Circuit held that “‘where travel to other jurisdictions’ to avoid detection by law enforcement is ‘a key component of a fraud scheme,’ the enhancement applies, regard- less [of ] whether the conspirators periodically return to a station- ary hub to perform part of the scheme.” Id. at 855 (quoting United USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 4 of 7
4 Opinion of the Court 23-12716
States v. Thornton, 718 F. App’x 399, 403–04 (6th Cir. 2018)). The defendant and his accomplices visited jewelry stores across the re- gion and moved from location to location “to avoid detection;” “their scheme seemingly would only work once in a given area, as the events leading up to Woodson's arrest demonstrate.” Id. at 856. Here, the court erred when it applied the relocation en- hancement to Zano’s guidelines pursuant to U.S.S.G. § 2B1.1.1(b)(10)(A). Based on the dictionary definition of the word relocation, the government did not meet its burden of proving that Zano moved any part of his scheme to a new place to avoid detec- tion. U.S.S.G. § 2B1.1(b)(10)(A); Digiorgio, 193 F.3d at 1178. The government only demonstrated that there were victims in over 32 states and that Zano’s drivers would move items and drop them in different storage units in different states. The only evidence to which the government points is the multi-jurisdictional nature of the criminal enterprise. The government’s position seems to be that the relocation enhancement would apply whenever the crimi- nal enterprise operates in interstate commerce. We reject that po- sition and hold that application of the enhancement requires some- thing more—some evidence that the location of the criminal en- terprise was intended to change (i.e. relocate) over time to evade law enforcement or regulatory officials. In this case we cannot conclude that the government proved that “something more.” For example, the government did not prove that Zano would have the drivers move the items to different places in order to evade the authorities; and, unlike the cases the USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 5 of 7
23-12716 Opinion of the Court 5
government relies on, there was no evidence that Zano would move to a different state once the authorities began to suspect his fraud. The evidence showed only that Zano operated a fraudulent moving business that operated in jurisdictions all over the country, as it was originally intended to do and that it continued to do for the duration of the scheme. There was no evidence of an intent to evade law enforcement 1 relating to the location or relocation of the criminal operation. Therefore, the court erred when it applied the two-level relocation enhancement to Zano’s guidelines.
II. The correction of a clerical error under Federal Rule of Criminal Procedure 36 is a legal issue that we review do novo. United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016). Federal Rule of Criminal Procedure 36 provides that a court “may at any time correct a clerical error in a judgment . . . arising from oversight or omission.” Fed. R. Crim. P. 36. “Rule 36 may not be used to make a substantive alteration to a criminal sen- tence.” Davis, 841 F.3d at 1261. A court’s correction of a written judgment “[cannot] prejudice the defendant in any reversible way.” Id. (quotation marks omitted, alteration in original). Where there
1 Of course, as in every criminal enterprise, there was other evidence—not
related to the location or relocation of the criminal enterprise—of an intent to avoid detection by law enforcement—e.g. the failure to obtain the appropriate license and the use of several names. USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 6 of 7
6 Opinion of the Court 23-12716
is any discrepancy between the two, a court’s oral pronouncement of a sentence rules over the written judgment. United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990). At the sentencing hearing, the district court orally ruled that Zano would be sentenced to a three-year term of supervised re- lease for Count 3 and for Count 10, and a one-year term of super- vised release for Count 13, all terms to run concurrently. However, in its written judgment the district court imposed three-year terms of supervised release for each of the three counts. Zano argues on appeal that the district court erred in the written judgment with respect to the three-year term of supervised release for two rea- sons: first, because the oral pronouncement controls over a con- flicting written judgment; and second, because a conviction under 49 U.S.C. § 14915, as is the case with respect to Count 13, authorizes a term of supervised release of not more than one year. A person convicted under 49 U.S.C. § 14915 may not be im- prisoned for more than two years. 49 U.S.C. § 14915(b). An offense that has a maximum term of imprisonment of less than five years but more than one year is a Class E felony. 18 U.S.C. § 3559(5). The court is authorized to impose not more than one year of supervised release for a Class E felony. 18 U.S.C. § 3583(b)(3). As the government concedes in its brief on appeal, the court erred when its written judgment directly conflicted with its oral pronouncement of its sentence. The oral pronouncement of Zano’s sentence of a one-year term of supervised release for Count 13 unambiguously conflicts with the written judgment of a three- USCA11 Case: 23-12716 Document: 44-1 Date Filed: 06/04/2024 Page: 7 of 7
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year term of supervised release for Count 13. The court’s oral pro- nouncement of a term of one year must control. Khoury, 901 F.2d at 977. Moreover, the court’s written judgment sentencing Zano to three years of supervised release for Count 13 is contrary to the law. It is contrary to the law because Zano was convicted under 49 U.S.C. § 14915, which is considered a Class E felony, and pursuant to 18 U.S.C. § 3583(b)(3), a court may not impose a term of more than one year of supervised release for a Class E felony. 18 U.S.C. § 3583(b)(3); 18 U.S.C. § 3559(5).
VACATED AND REMANDED.