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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-10508 ________________________
D.C. Docket No. 2:14-cr-00114-SLB-JEO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCELLA TRUSS, a.k.a. Marcy, HOWARD LENARD CARROWAY, a.k.a. Bo, a.k.a. Beano, MARTEE RAY DAVIS, a.k.a. Martiece,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Northern District of Alabama ________________________
(January 18, 2018) Case: 15-10508 Date Filed: 01/18/2018 Page: 2 of 21
Before TJOFLAT and MARTIN, Circuit Judges, and MURPHY, * District Judge.
PER CURIAM:
Marcella Truss, Martee Davis, and Howard Carroway appeal following their
convictions from a fraud scheme in Alabama. The three defendants were involved
in an extensive conspiracy to defraud Gulf Coast Claims Facility (“GCCF”) by
filing false claims for damages arising from the BP oil spill. Truss and Carroway
challenge their underlying convictions and all three Defendants challenge their
sentences.
Truss and Carroway both argue on appeal that the district court erred by
denying their motions for judgment of acquittal. Truss also makes two additional
arguments. She argues that the district court erred when it questioned witnesses
and commented on evidence. And she also argues that the district court erred
when it admitted evidence against Carroway because its prejudice to Truss
outweighed its probative value as to Carroway.
With respect to sentencing, Davis and Carroway argue that the district court
erred by imposing the sophisticated means enhancement under U.S.S.G. §
2B1.1(b)(10)(C) and by not resolving their objections to the role in the offense
enhancement under U.S.S.G. § 3B1.1. Carroway further objects that the district
court erred by imposing an obstruction of justice enhancement under U.S.S.G. §
* Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation.
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3C1.1 because it constituted impermissible double counting. Finally, Truss, Davis,
and Carroway object that their sentences are procedurally and substantively
unreasonable because the district court penalized them for their refusal to accept
responsibility and plead guilty.
The Court will first address Truss’s and Carroway’s merits arguments and
then address each of the sentencing arguments in turn.
I. MERITS
A. Marcella Truss
1. The District Court’s Questioning
Truss insists she did not have a fair trial due to the district court’s actions.
She argues that the court’s questioning of witnesses, its directives to the
Government, and its comments concerning the evidence were improper.
According to Truss, the court abandoned its neutral role and became a de facto
prosecutor. We disagree.
Truss never objected to the court’s conduct during trial. On one occasion—
out of the jury’s hearing—Davis’s attorney1 stated that he had a “concern” that the
court was “leading the prosecution in presenting its case” on a particular
evidentiary matter. But an objection was never raised, then or after, concerning the
court’s conduct.
1 At the beginning of the trial, all counsel and the court agreed that an objection by one of the lawyers was an objection on behalf of all the co-defendants. 3 Case: 15-10508 Date Filed: 01/18/2018 Page: 4 of 21
Absent an objection, the Court reviews Truss’s claims “only for plain error.”
United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010). Under that
standard of review, Truss must show that “(1) an error occurred; (2) the error was
plain; (3) it affected [her] substantial rights; and (4) it seriously affected the
fairness of the judicial proceedings.” Id. (quoting United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003)). Moreover, “improper comments by a judge
warrant reversal only if they had such a prejudicial effect on the jury that they
denied the defendant a fair trial.” United States v. Hill, 643 F.3d 807, 849 (11th
Cir. 2011); see also United States v. Hesser, 800 F.3d 1310, 1330 (11th Cir. 2015)
(reasoning that “the few errors we have identified did not impact the jury’s
verdicts.”).
None of the instances cited by Truss meet this high bar. For one, most of the
instances she points to were out of the hearing of the jury, and she gives no
indication that the jury was affected by them. The few cited instances that did
occur before the jury involved the court clarifying testimony. For instance, when
Jerome Rudolph testified that he signed a release as to his rights to sue Truss’s
company, the court merely asked him whether he was working for the company at
the time, and in what capacity—facts that would assist the jury in understanding
the relevant circumstances. During the direct examination of Felicia Youngblood,
the court disclosed that it intended to ask a follow-up question of the witness
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unless the Government intended to ask it, and during the direct examination of
Cedric Powell, the court asked a single question after the Government passed the
witness. The court’s questions were natural follow-ups to the witnesses’ prior
answers and consistent with the trial judge’s proper role in “elicit[ing] facts not yet
adduced” and “maintain[ing] the pace of the trial.” Hanson v. Waller, 888 F.2d
806, 813 (11th Cir. 1989) (quoting Moore v. United States, 598 F.2d 439, 442 (5th
Cir. 1979)). The court likewise attempted to maintain the pace of the trial when it
asked Robert Truss, Jr. if he had previously heard the tapes the Government was
about to play. And in at least one instance cited by Truss, the court’s interjection
went in her favor: the court urged the Government to ask witness Cametrica Davis
what was in her plea agreement to ensure that the jury was adequately informed of
her incentive for the testimony.
Asking witnesses to clarify the evidence presented is a task “entirely proper”
for the court to undertake. United States v. Wright, 392 F.3d 1269, 1275 (11th Cir.
2004) (quoting Hanson, 888 F.2d at 813). The interjections cited by Truss did not
demonstrate bias, much less bias so egregious that it impacted the verdict. The
court’s questions and statements were therefore not error warranting reversal.
2. The Evidence Against Carroway
Truss also argues that the district court erred by admitting evidence against
co-defendant Carroway: a recorded phone call of Carroway offering assurances to
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one of the false claimants involved in the conspiracy and mentioning that “his
sister” had a lawyer. Truss objected on three grounds: (1) the timing of the call
rendered it inadmissible as a conversation between co-conspirators, (2) the
evidence was more prejudicial than probative, and (3) the generic reference to
Carroway’s sister would confuse the jury. The Court agreed on the issue of timing,
but admitted the evidence against Carroway to show consciousness of guilt. And
before playing the conversation for the jury, the court specifically instructed the
jury not to consider it in any way against Truss.
Jurors are presumed to follow a court’s instructions, Brown v. Jones, 255
F.3d 1273, 1280 (11th Cir. 2001), and Truss has offered nothing to challenge that
presumption. Accordingly, Truss has not shown that the district court’s decision to
admit the evidence rested upon a “clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.” United States v.
Bornscheuer, 563 F.3d 1228, 1238 n.25 (11th Cir. 2009). The district court did not
err in admitting the evidence with an instruction.
3. The Motion for Acquittal
Lastly, Truss asserts that the district court should have granted her motion
for acquittal on the conspiracy count. The Government was required to prove that
there was an agreement between Truss and one or more persons to achieve an
unlawful objective, that she knowingly and voluntarily participated in the
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agreement, and that one of the conspirators committed an overt act in furtherance
of the agreement. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003).
According to Truss, she was convicted on limited evidence: the false claims were
filed with a computer for which she provided internet access, the false W-2s were
from the company she owned, and fraudulent phone calls were placed from phone
numbers associated with an account she paid for. She argues that, without more,
there was not enough evidence to prove an agreement to commit an illegal act.
But there was much more evidence of an agreement. The fraudulent claims
followed a familiar pattern: one of the defendants would contact a person, and tell
the person that money was being made available from a lawsuit or the oil spill.
Money was then deposited in the person’s bank account—and the defendants
would tell the person how to withdraw the money and to give a portion of it to
Truss, Davis, or Carroway. Jerome Rudolph, Montiest Rudolph, Metilda Lanier,
and Ruby Bush dealt solely with Truss; she told them of the money, directed them,
and was the ultimate recipient of the cash. In other cases, however, other people
were involved. Aquarnesha Claud received her check from Truss, but had
previously given her information to Truss’s son, Robert. And when Robert helped
Felicia Youngblood withdraw money in the form of cashier’s checks, he called
Truss to get directions on what to do with them. Marchero Montgomery also dealt
with both Truss and Robert in getting her money. Although Don Bush dealt
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mostly with Truss, when he received his money Truss told him to give it to Martee
Davis rather than to her.
In sum, there was more than enough evidence for the jury to find that Truss
was a knowing participant who agreed with others to defraud the GCCF. The
district court did not err in denying Truss’s motion for acquittal.
B. Howard Carroway
Carroway maintains the district court should have granted his motion for
acquittal on the two obstruction-of-justice counts. A person violates 18 U.S.C.
§ 1512(b)(3) when he attempts to corruptly persuade another person with intent to
“hinder, delay, or prevent” communication of information relating to the
commission or possible commission of a federal offense to a law enforcement
officer of the United States. The Supreme Court construed similar language in
Fowler v. United States, 563 U.S. 668, 677–78, 131 S. Ct. 2045, 2052 (2011), and
held that the Government must show that it is “reasonably likely under the
circumstances that . . . at least one of the relevant communications would [be]
made to a federal officer.”
The charges against Carroway arose from the testimony of two witnesses:
Andre Dale and Selena Fleeton. They testified that Carroway gave them a piece of
paper with a phone number at the top of it. Carroway told them to call the number
and use the information on it to answer any questions they were asked. Neither
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was told whose number it was and neither called the number. On appeal,
Carroway concedes that the information on the papers was false, but his argument
is that “there was no competent evidence from which a jury could determine that
there existed a reasonable likelihood Carroway intended Dale or Fleeton to convey
false information to a federal law enforcement officer.”
The argument is simply incorrect. Another witness, Drew Brewer, testified
that the number was for the U.S. Attorney’s office in Birmingham, Alabama and
the U.S. attorney is unquestionably a federal law enforcement agency. See 18
U.S.C. § 1515(4)(A). The timing was also telling: Carroway gave Fleeton and
Dale the sheets shortly after the FBI had begun contacting claimants, including
Fleeton. It is of no moment that Fleeton and Dale did not know, at the time, whose
phone number it was; the statute does not require such knowledge. There was
ample evidence for a jury to find that Carroway violated 18 U.S.C. § 1512(b)(3),
so the district court did not err in denying Carroway’s motion for acquittal.
II. SENTENCING
A. “Sophisticated Means”
A district court’s finding that a defendant used sophisticated means is a
finding of fact reviewed for clear error. United States v. Barrington, 648 F.3d
1178, 1199 (11th Cir. 2011). Review for clear error is deferential, and we will not
disturb a district court’s findings unless there is a definite and firm conviction that
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a mistake was committed. United States v. Ghertler, 605 F.3d 1256, 1267 (11th
Cir. 2010).
The Guidelines provide for a two-level enhancement if the offense “involved
sophisticated means.” U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)(C)
(U.S. Sentencing Comm’n 2004) (“U.S.S.G.”). “Sophisticated means” is defined
in the commentary to § 2B1.1 as “especially complex or especially intricate
offense conduct pertaining to the execution or concealment of the offense.” Id. §
2B1.1, cmt. (n.8(B)) (2012). Conduct like hiding assets or transactions “through
the use of fictitious entities, corporate shells, or offshore financial accounts”
ordinarily indicates sophisticated means. Id. There is no requirement that each of
a defendant’s individual actions be sophisticated. Ghertler, 605 F.3d at 1267.
Rather, it is sufficient if the totality of the scheme was sophisticated. Id.
In Ghertler, the defendant perpetrated a wire fraud scheme by posing as a
high ranking official and duping companies into sending him substantial funds.
Ghertler, 605 F.3d at 1260–61. Although the defendant sometimes made little or
no effort to conceal the fraud or his identity, he: (1) conducted extensive research
on the victim companies; (2) used unwitting couriers to pick up and deliver some
of the proceeds of his frauds; (3) forged company documents; (4) on at least one
occasion, referenced a confidential internal account in a forged document; and (5)
had funds transferred to the accounts of unwitting third parties, who, in turn,
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withdrew and transferred cash to him. Id. at 1268. Although “a close question,”
we held that the district court did not clearly err in applying the sophisticated
means enhancement. Id. at 1267–68.
Likewise, here, the district court did not clearly err in applying the
enhancement. The defendants recruited 37 individuals to file 50 separate,
fraudulent claims for payment. In each of these claims, the defendants
electronically filed numerous false documents, including W-2 forms, payroll stubs,
and lay-off notices. Furthermore, once the individual claimants received their
funds, the defendants would use various transactions to procure a portion of the
proceeds. The defendants essentially used Truss’s business as a front to coordinate
an expansive fraud against the GCCF that involved many individuals and
numerous false documents. Accordingly, the district court did not clearly err in
finding that the sophisticated means enhancement applied.
B. “Aggravating Role”
When appropriate, we review “de novo legal questions concerning the
Federal Rules of Criminal Procedure.” United States v. Spears, 443 F.3d 1358,
1361 (11th Cir. 2006). And we review a district court’s determination that a
defendant is subject to a § 3B1.1 role enhancement as an organizer or leader for
clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
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When an argument is raised for the first time on appeal, however, we review for
plain error. See United States v. Peters, 403 F.3d 1263, 1270–71 (11th Cir. 2005).
A district court may increase a defendant’s offense level by four levels “[i]f
the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
commentary to the section explains that when, as here, a criminal organization is
relatively small, “the distinction between organization and leadership, and that of
management and supervision, is of less significance than in larger enterprises that
tend to have clearly delineated divisions of responsibility.” U.S.S.G. § 3B1.1 cmt.
(backg’d). Section 3B1.1(b) provides a 3-level increase “[i]f the defendant was a
manager, or supervisor (but not organizer or leader)” and the criminal activity
involved five or more participants and was “otherwise extensive.” U.S.S.G.
§ 3B1.1(b). A defendant’s assertion of control over only one other participant is
sufficient to sustain a § 3B1.1(b) role enhancement. Id. § 3B1.1, cmt. (n.2).
The commentary to § 3B1.1 sets out several factors for courts to consider in
determining if the defendant is an organizer or leader, as opposed to a mere
manager or supervisor, including the following: (1) the defendant’s exercise of
decision making authority; (2) the nature of participation in the offense;
(3) recruiting accomplices; (4) the claimed right to a larger share of the fruits of the
crime; (5) the degree of participation in planning or organizing the crime; (6) the
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nature and scope of the illegal activity; and (7) the degree of control and authority
exercised over others. U.S.S.G. § 3B1.1, cmt. (n.4).
All of the factors need not be present. United States v. Martinez, 584 F.3d
1022, 1026 (11th Cir. 2009). Instead, the factors are “merely considerations for the
sentencing judge.” Id. Section 3B1.1 does, however, require the exercise of some
authority in the organization, the exertion of some degree of control, influence, or
leadership. Id. The government must prove the existence of an aggravating role
by a preponderance of the evidence. Id. at 1026–27.
We have previously held that recruitment and instruction of co-conspirators,
in concert with other factors, shows the necessary degree of control, influence, or
leadership to qualify a defendant for a § 3B1.1 role enhancement. See, e.g., United
States v. Caraballo, 595 F.3d 1214, 1232 (11th Cir. 2010) (holding that the district
court did not clearly err in applying a leadership enhancement when, among other
things, the government presented evidence that defendant had recruited another
participant and given specific instructions on how to commit the crime).
Additionally, we have affirmed a defendant’s aggravating role enhancement in at
least one case when the sole criterion discussed was the defendant’s recruitment of
others. United States v. Thomas, 446 F.3d 1348, 1355 n.2 (11th Cir. 2006).
Davis initially objected to his role enhancement, but he withdrew that
objection before sentencing. As a result, and contrary to Davis’s position on
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appeal, he had no objection to his § 3B1.1(b) role enhancement before the court at
the time he was sentenced. The district court did not commit error under Federal
Rule of Criminal Procedure 32 by not addressing an objection that was not before
it. Because Davis withdrew his objection, we review his challenge for plain error.
See Peters, 403 F.3d at 1270–71. Because Carroway objected to his enhancement
at the time of sentencing, we review his challenge for clear error. See Ramirez,
426 F.3d at 1355.
Here, the district court did not clearly err in applying the § 3B1.1(b)
adjustment to either Davis or Carroway. They both recruited claimants to provide
false claims to GCCF. We have previously determined that similar actions
demonstrated the necessary degree of control, influence, or leadership to qualify
for a sentence enhancement pursuant to § 3B1.1. See, e.g., Caraballo, 595 F.3d at
1232; Thomas, 446 F.3d at 1355 n.2. Davis regularly called GCCF to find updates
about the state of the claims, and Carroway provided two claimants with a script
and instructed them to provide false statements to investigators concerning the
fraud—recruitment like that also supports a § 3B1.1 enhancement. Caraballo, 595
F.3d at 1232. Thus, we affirm the district court’s role enhancement for both Davis
and Carroway.
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C. “Obstruction of Justice” and Double Counting
We review a district court’s application and interpretation of the Sentencing
Guidelines de novo. United States v. Murphy, 306 F.3d 1087, 1089 (11th Cir.
2002). A claim of double counting presents a question of law that we review de
novo. United States v. Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). When an
argument is raised for the first time on appeal, we review for plain error, see
Peters, 403 F.3d at 1270–71, and an error is not plain unless it is contrary to
precedent directly resolving a legal issue, United States v. Lejarde-Rada, 319 F.3d
1288, 1291 (11th Cir. 2003).
The district court did not err by applying the § 3C1.1 enhancement.
“Impermissible double counting occurs only when one part of the Guidelines is
applied to increase a defendant’s punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines.”
Naves, 252 F.3d at 1168. Double counting is permissible when the Sentencing
Commission intended the result and each section concerns conceptually separate
notions related to sentencing. Id.
Pursuant to § 3C1.1 application note 8, if a defendant is convicted of an
obstruction offense and an underlying offense (the offense with respect to which
the obstructive conduct occurred), the count for the obstruction offense will be
grouped with the count for the underlying offense under § 3D1.2(c). U.S.S.G.
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§ 3C1.1, cmt. (n.8). The offense level for that group of counts will be the offense
level for the underlying offense increased by the two-level adjustment specified by
§ 3C1.1. Id.
Section 3C1.1’s application note 7 states that if the defendant is convicted of
an offense covered by § 2J1.2 (Obstruction of Justice), the adjustment is not to be
applied to the offense level for that offense, except if a significant further
obstruction occurred during the investigation, prosecution, or sentencing of the
obstruction offense itself. Id. § 3C1.1, cmt. (n.7). Furthermore, § 2J1.2’s
application note 3 states, “[i]n the event that the defendant is convicted of an
offense sentenced under this section as well as for the underlying offense, . . . see
the commentary to Chapter Three, Part C.” Id. § 2J1.2, cmt. (n.3).
Application note 8 of 3C1.1 clearly states that if a defendant is convicted of
obstruction, as well as the underlying offense, the obstruction offense is grouped
together with the other offense, and the enhancement is applied. U.S.S.G. § 3C1.1,
cmt. (n.8). Carroway’s construction of § 2J1.2 is misguided. Although § 3C1.1’s
application note 7 states that the enhancement does not apply when a defendant is
convicted of an obstruction of justice offense, application note 3 of § 2J1.2 cites to
§ 3C1.1 when a defendant is charged with obstruction of justice and the underlying
offense. Id. §§ 3C1.1, cmt. (n.7); 2J1.2, cmt. (n.3). Thus, the Sentencing
Commission clearly intended the enhancement to apply in Carroway’s case
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because his conviction for obstruction of justice was for obstructing the
investigation of the conduct underlying his various fraud convictions.
D. Reasonableness
The party challenging a sentence bears the burden to show that the sentence
was unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will reverse only if “left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
Reviewing the reasonableness of a sentence consists of a two-step process,
in which we ensure that the sentence is procedurally and substantively reasonable.
Gall v. United States, 552 U.S. 38, 51 (2007). A sentence is procedurally
unreasonable if the district court, among other things, failed to consider the
§ 3553(a) factors. See Gall, 552 U.S. at 51. The district court is generally not
required to explicitly discuss each of the § 3553(a) factors—its consideration of the
defendant’s arguments at sentencing and statement that it took the factors into
account is sufficient. United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009).
When a defendant failed to object in the district court, we will review
procedural reasonableness, and other trial or sentencing issues generally, for plain
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error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014)
(reasonableness); United States v. Olano, 507 U.S. 725, 731 (1993) (trial issue).
To demonstrate plain error, a defendant must show that there is (1) an error (2) that
is plain (3) that has affected the defendant’s substantial rights. Vandergrift, 754
F.3d at 1307. If those three prongs are met, we may exercise discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
We examine whether a sentence is substantively reasonable in light of the
totality of the circumstances. Gall, 552 U.S. at 51. The district court must impose
a sentence “sufficient, but not greater than necessary, to comply with the purposes”
listed in § 3553(a)(2), including the need to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public from the defendant’s future criminal conduct. See
18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also
consider the nature and circumstances of the offense, the history and characteristics
of the defendant, the kinds of sentences available, the applicable guideline range,
the need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)–(4), (6)–(7).
The sentencing court need not weigh each factor equally, but instead may
give great weight to one factor over the others. United States v. Rosales-Bruno,
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789 F.3d 1249, 1254 (11th Cir. 2015). Assigning weight to a particular factor is
committed to the discretion of the district court. Id. Absent clear error, we will not
reweigh the § 3553(a) factors. United States v. Langston, 590 F.3d 1226, 1237
(11th Cir. 2009). A district court, however, should not focus on one factor “single-
mindedly” to the detriment of other factors, and a court’s unjustified reliance on
any one § 3553(a) factor may suggest an unreasonable sentence. United States v.
Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).
When appropriate, we will review the reasonableness of a sentence under a
deferential abuse-of-discretion standard. Gall, 552 U.S. at 41. A district court can
abuse its discretion when it (1) fails to consider relevant factors that were due
significant weight, (2) gives an improper or irrelevant factor significant weight, or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Irey, 612 F.3d at 1189. We have disapproved of rigid and
mechanical sentencing procedures which bypass the defendant’s individual
circumstances and mete out a sentence based on the category of crime. United
States v. Roper, 681 F.2d 1354, 1361 (11th Cir. 1982). But we ordinarily expect a
guidelines sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2009).
“The Constitution forbids the exaction of a penalty for a defendant’s
unsuccessful choice to stand trial.” Smith v. Wainwright, 664 F.2d 1194, 1196
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(11th Cir. 1981) (habeas case). It is well-established, however, that absent a
demonstration of judicial vindictiveness or punitive action, a defendant may not
complain simply because he received a heavier sentence after trial. See Blackmon
v. Wainwright, 608 F.2d 183, 184 (5th Cir. 1980) (habeas case). Judicial
vindictiveness and putative action have been found in cases when judges coerce
defendants to plea under threat of higher sentences. Id.
In Smith, we held that a discrepancy between the defendant’s actual sentence
and that which he would have received had he foregone trial to plead guilty did not
invalidate the sentence. Smith, 664 F.2d at 1197. Furthermore, we have also stated
that such facts may be properly considered as part of “the total picture” at
sentencing. See United States v. Castillo-Valencia, 917 F.2d 494, 501 (11th Cir.
1990).
Here, the defendants did not raise their vindictive sentencing challenges
before the district court, and it is also unclear whether those challenges may have
implicated procedural reasonableness, substantive reasonableness, or both.
Nevertheless, the challenges fail under any applicable standard of review.
As noted above, the district court voiced its frustration about the defendants’
refusal to accept responsibility, but it did not coerce the defendants into entering
pleas under threat of potentially higher total sentences. Blackmon, 608 F.2d at 184.
At sentencing, the court recognized the fact that the defendants refused to accept
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responsibility even after their trial and in the light of overwhelming evidence. The
court also wished to account for the enormous extent of the fraud before
formulating total sentences based on these concerns. Under our precedents, the
district court was entitled to consider the defendants’ failure to accept
responsibility when formulating a proper sentence. Castillo-Valencia, 917 F.2d at
501. Moreover, the court sentenced Truss and Davis at the bottom of the
applicable guideline ranges (135 and 159 total months, respectively) and the court
sentenced Carroway below the applicable guideline range (96 total months). Thus,
the court did not impose overly harsh or punitive total sentences, and we generally
find such total sentences reasonable. Hunt, 526 F.3d at 746. Accordingly, we will
affirm in this respect.
AFFIRMED.