United States v. Marius Mastan

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 5, 2022
• Docket: 21-1334
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0013n.06

No. 21-1334

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Jan 05, 2022 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE WESTERN DISTRICT OF ) MICHIGAN MARIUS ADRIAN MASTAN, ) ) Defendant-Appellant. )

Before: GILMAN, KETHLEDGE, and LARSEN, Circuit Judges.

KETHLEDGE, Circuit Judge. Marius Adrian Mastan pled guilty to conspiracy to commit

financial-institution fraud, in violation of 18 U.S.C. § 1349, and aggravated identity theft, in

violation of 18 U.S.C. § 1028A. Mastan appeals his sentence, arguing that the district court plainly

erred in failing to grant him a mitigating-role adjustment. We affirm.

Beginning in September 2019, Mastan and a co-conspirator, Ioan Flore, installed skimming

devices and pin-hole cameras on ATMs in Michigan, Nebraska, and Iowa. Mastan, Flore, and

other members of the conspiracy then used the information they collected to steal money from

bank accounts. Mastan stole about $50,000, and the conspiracy as a whole stole $312,606 from

more than 2,900 people. In May 2020, police arrested Mastan and Flore. Mastan eventually pled

guilty to one count of conspiracy to commit financial-institution fraud and one count of aggravated

identity theft. No. 21-1334, United States v. Mastan

Mastan’s Guidelines range for the conspiracy count was 41 to 51 months’ imprisonment.

He also faced a mandatory consecutive two-year sentence for aggravated identity theft under

§ 1028A. At sentencing, Mastan requested a below-Guidelines sentence for the conspiracy charge.

He argued that, among other factors, he “was a lower level participant and received only a portion

of the proceeds in this offense.” The district court agreed that Mastan “played a minor role as a

lower level participant in the conspiracy,” but also found that, without Mastan, “a lot of the major

harm would not have occurred.” The district court thereafter granted the government’s motion for

a twelve-month downward departure for substantial assistance, sentenced Mastan to 29 months for

the conspiracy count, and imposed the mandatory consecutive two-year sentence for aggravated

identify theft. Mastan did not object to his sentence. This appeal followed.

Mastan argues that the district court plainly erred when it failed to apply a minor-role

reduction to his conspiracy charge under U.S.S.G. § 3B1.2(b). That section allows a district court

to reduce a defendant’s Guidelines range by two levels if he was a “minor participant” who was

“substantially less culpable than the average participant in the criminal activity.” U.S.S.G.

§ 3B1.2, cmt. n.3(A).

Prior to sentencing, the probation office produced a presentence report, which described

Mastan as “an average participant in the conspiracy,” rather than a minor one. Mastan twice

expressly declined to object to the findings of the presentence report, which means he “admitted

that fact.” United States v. Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005). That admission is

enough to deny him the reduction. Moreover, Mastan played a significant role in the conspiracy:

he both installed skimming devices on ATM machines and “cashed out” funds using depositors’

information obtained from these devices; and Mastan engaged in this criminal conduct on at least

ten occasions. True, the district court stated during the sentencing hearing that Mastan had

2 No. 21-1334, United States v. Mastan

“a minor role as a lower level participant in the conspiracy.” But the district court was not using

the word “minor” as a term of art under § 3B1.2. The district court did not plainly err by failing

sua sponte to grant Mastan a minor-role reduction that he never requested.

The district court’s judgment is therefore affirmed.