United States v. James Mondell

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 28, 2018
• Docket: 18-4016
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4016

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES PATRICK MONDELL,

Defendant - Appellant.

No. 18-4017

No. 18-4039

Plaintiff - Appellee, v.

MICHAEL RUIZ, a/k/a Michael Rizzoa,

No. 18-4044

Appeals from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:09-cr-01078-HMH-1; 6:17- cr-00638-HMH-2; 6:17-cr-00144-HMH-1; 6:17-cr-00638-HMH-1)

Submitted: July 31, 2018 Decided: August 28, 2018

Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Christopher R. Geel, LAW OFFICE OF CHRISTOPHER W. ADAMS, Charleston, South Carolina; Lora C. Blanchard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellants. Beth Drake, United States Attorney, David Calhoun Stephens, Assistant United States Attorney, OFFICE OF THE UNITED STATES

2 ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

3 PER CURIAM:

James Patrick Mondell and Michael Ruiz (collectively, Defendants) pled guilty to

two counts of wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (2012). Ruiz also pled guilty

to three counts of impersonating an officer or employee of the United States, in violation

of 18 U.S.C. § 912 (2012). The district court varied upward from Defendants’ advisory

Sentencing Guidelines ranges, sentencing Mondell to 40 months’ imprisonment and Ruiz

to 160 months’ imprisonment. Due to this new criminal conduct, the court also revoked

Defendants’ supervised release and sentenced Mondell to 27 months’ imprisonment and

Ruiz to 24 months’ imprisonment. The revocation sentences were within Defendants’

respective policy statement ranges, and the court ordered the revocation sentences to run

consecutively to the sentences imposed for Defendants’ new criminal conduct. In these

consolidated appeals, Defendants challenge the adequacy of the court’s explanations for

their new sentences and their revocation sentences. We affirm.

I.

We review a criminal sentence, “whether inside, just outside, or significantly

outside the Guidelines range” for reasonableness “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Blue, 877

F.3d 513, 517 (4th Cir. 2017). This review ordinarily requires consideration of both the

procedural and substantive reasonableness of the sentence, but Defendants limit their

appeals to the procedural reasonableness of their upward variant sentences by challenging

the adequacy of the court’s explanations. See Blue, 877 F.3d at 517-18.

4 “[F]or every sentence—whether above, below, or within the Guidelines range—a

sentencing court must place on the record an individualized assessment based on the

particular facts of the case before it.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010) (internal quotation marks omitted). The court is obliged to “adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the perception of

fair sentencing.” Blue, 877 F.3d at 518 (internal quotation marks omitted). Although the

sentencing judge “need not robotically tick through the [18 U.S.C.] § 3553(a) [(2012)]

factors,” United States v. Helton, 782 F.3d 148, 153 (4th Cir. 2015) (internal quotation

marks omitted), he must “set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decision-making authority,” Blue, 877 F.3d at 518 (internal quotation marks omitted). It

may sometimes be possible to discern a sentencing court’s rationale from the context

surrounding its decision, including statements the court made during the sentencing

hearing. United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006). But “an

appellate court may not guess at the district court’s rationale, searching the record for

statements by the Government or defense counsel or for any other clues that might explain

a sentence.” United States v. Carter, 564 F.3d 325, 329-30 (4th Cir. 2009).

“[W]here the district court decides that a sentence outside the Guidelines’ advisory

range is appropriate, it must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance.” United

States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (alteration and internal quotation marks

omitted). If a court’s deviation from the Guidelines range “is a substantial one, we must

5 more carefully scrutinize the reasoning offered by the district court in support of the

sentence. The farther the court diverges from the advisory guideline range, the more

compelling the reasons for the divergence must be.” United States v. Hampton, 441 F.3d

284, 288 (4th Cir. 2006) (alteration and internal quotation marks omitted). However, the

court “need not find extraordinary circumstances to justify a deviation from the

Guidelines,” United States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (internal quotation

marks omitted), and “we will credit an articulation as clear and appropriate[] when the

reasons can be matched to a factor appropriate for consideration and tailored to the

defendant’s situation,” United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012)

(internal quotation marks omitted).

In Mondell’s case, the district court stated that an upward variance was appropriate

because Mondell has a long history of preying on people and committing fraud to obtain

money, and because he continued his criminal conduct immediately upon his release from

prison. This explanation addresses the nature and circumstances of the offense and the

history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1), the need to afford

adequate deterrence to criminal conduct, 18 U.S.C. § 3553(a)(2)(B), and the need to protect

the public from further crimes of the defendant, 18 U.S.C. § 3553(a)(2)(C). Furthermore,

the court’s comments during the hearing support its explanation and establish that it

considered the majority of Mondell’s arguments in mitigation.

In Ruiz’s case, the district court offered a lengthy explanation for imposing an

upward variant sentence. It observed that Ruiz had spent his entire adult life committing

fraud and stealing by deception; that no sentence had been lengthy enough to deter Ruiz

6 from engaging in additional criminal activity; that the Guidelines do not account for the

number of convictions that were identical to the instant offense, several of which were

uncounted; and that the Guidelines do not adequately account for Ruiz’s decision to prey

on immigrants. The court then identified the sentencing factors of primary concern in

Ruiz’s case: the nature and circumstances of the offense and the history and characteristics

of the defendant, 18 U.S.C. § 3553(a)(1), the need to afford adequate deterrence to criminal

conduct, 18 U.S.C. § 3553(a)(2)(B), and the need to protect the public from further crimes

of the defendant, 18 U.S.C. § 3553(a)(2)(C). Furthermore, as in Mondell’s case, the court’s

comments during the hearing support its explanation and establish that it considered the

majority of Ruiz’s arguments in mitigation.

Ultimately, the court’s explanations for the sentences and its comments during the

hearings allow for meaningful appellate review and promote the perception of fair

sentencing. We do not have to guess at the court’s rationale for imposing significant

upward variant sentences. We therefore affirm the sentences imposed for Defendants’ new

criminal conduct.

II.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release,” and “[w]e will affirm a revocation sentence if it is within the statutory

maximum and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th

Cir. 2013) (internal quotation marks omitted). “[W]e first must determine whether the

sentence is procedurally or substantively unreasonable,” evaluating the same general

considerations employed in review of original sentences. United States v. Slappy, 872 F.3d

7 202, 207 (4th Cir. 2017). Only if we find a sentence unreasonable must we determine

whether it is “plainly so.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors.” Slappy,

872 F.3d at 207 (footnote omitted). “A court need not be as detailed or specific when

imposing a revocation sentence as it must be when imposing a post-conviction sentence,

but it still must provide a statement of reasons for the sentence imposed.” Thompson, 595

F.3d at 547 (internal quotation marks omitted). An explanation will be sufficient and allow

for meaningful appellate review if there is “an assurance that the sentencing court

considered the applicable sentencing factors with regard to the particular defendant before

it and also considered any potentially meritorious arguments raised by the parties with

regard to sentencing.” United States v. Gibbs, ___ F.3d ___, ___, No. 17-4037, 2018 WL

3421706, at *4 (4th Cir. July 16, 2018) (alterations and internal quotation marks omitted).

As with original sentences, “less explanation is required for” a within-policy-statement-

range sentence than for one that departs from the recommended range. Id.

The district court did not provide a separate explanation for the length of the

revocation sentences. But we conclude that the court’s explanations for imposing the

upward variant sentences for the wire fraud and related convictions covered several of the

relevant § 3553(a) factors and that there was no need for the court to repeat itself,

particularly considering that the revocation sentences were within Defendants’ respective

policy statement ranges. See 18 U.S.C. § 3583(e) (2012) (identifying § 3553(a) factors

8 applicable to revocation sentences). Moreover, during both hearings, the court emphasized

Defendants’ breach of trust. See Webb, 738 F.3d at 641 (recognizing that revocation

sentences “should sanction primarily the defendant’s breach of trust” (internal quotation

marks omitted)).

Defendants further argue that the district court erred by failing to explain why it

rejected their arguments for concurrent revocation sentences. But we have imposed no

requirement that a court provide a separate explanation for running a revocation sentence

consecutively to a sentence for new criminal conduct. Moreover, a court is only required

to consider nonfrivolous arguments for a different sentence, Blue, 877 F.3d at 518-19, and

Defendants’ argument for running their revocation sentences concurrently to their new

criminal sentences is without merit. Nothing in the Guidelines or the commentary indicates

that a defendant may not receive a consecutive revocation sentence when he has also been

assessed two criminal history points for committing the new offense while on supervised

release. See U.S. Sentencing Guidelines Manual §§ 4A1.1(d), 7B1.3(f), p.s. (2016); cf.

United States v. Coombs, 857 F.3d 439, 451 (1st Cir. 2017) (concluding that there is no

legal impediment to imposing consecutive revocation sentence when “conduct committed

by a person while on supervised release transgresses the criminal law as well as the

conditions of supervision” and explaining that, “[w]ere the rule otherwise, a defendant

would effectively escape meaningful punishment for violating his supervised release

conditions”). We therefore affirm Defendants’ revocation sentences.

9 III.

We conclude that the district court sufficiently explained its sentencing decisions.

Accordingly, we affirm the district court’s judgments. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED