United States v. Mark Goss

Opinion

Case: 12-11481 Date Filed: 11/30/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-11481 Non-Argument Calendar ________________________

D.C. Docket No. 3:11-cr-00068-CAR-CHW-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll lPlaintiff-Appellee,

versus

MARK GOSS, a.k.a. Ronald Mark Goss,

lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________ (November 30, 2012)

Before MARCUS, WILSON, and PRYOR, Circuit Judges.

PER CURIAM: Case: 12-11481 Date Filed: 11/30/2012 Page: 2 of 4

Mark Goss appeals his sentence of 144 months of imprisonment following

his plea of guilty of using the mail to distribute false information to victims of his

fraudulent investment scheme. 18 U.S.C. § 1341. Goss argues, for the first time,

that he was entitled to notice that he would receive a sentence above the advisory

guideline range or, alternatively, to a continuance to prepare a response to the

victim impact statements used to fashion his sentence. Goss also argues that his

sentence is unreasonable. We affirm.

The district court did not err, much less plainly err, in failing to give Goss

notice of its decision to impose an above-guideline sentence or to sua sponte

continue Goss’s sentencing hearing. Goss was not entitled to notice that the

district court intended to vary from the advisory guideline range. See Irizarry v.

United States, 553 U.S. 708, 713–14, 716, 128 S. Ct. 2198, 2202–03 (2008).

Although the district court used the word “depart” to describe its discretionary

authority to the victims who attended Goss’s sentencing hearing and to explain that

the sentence was atypical, the district court stated during the hearing and in its

written statement of reasons that its sentencing decision was based on a variance

from the advisory guideline range, not a departure under a provision of the

Sentencing Guidelines. See United States v. Kapordelis, 569 F.3d 1291, 1316

(11th Cir. 2009). The district court discussed the “nature and circumstances of

2 Case: 12-11481 Date Filed: 11/30/2012 Page: 3 of 4

[Goss’s] offense” and his “history and characteristics,” and then the district court

explained that it was “varying from the advisory guideline range pursuant to the

factors found at 18 USC Section 3553(a)” because “the advisory guideline

sentencing range [was] inadequate to address [either] the gravity of [Goss’s]

criminal conduct . . . [or] the impact that [his] conduct . . . had on the lives of

victims in the community.” And the district court was not required to sua sponte

continue Goss’s sentencing hearing to allow him investigate and respond to the

victims’ accounts of fraud. Goss had been forewarned of the import of the victim’s

statements in the presentence investigation report. The report stated that 25

individuals and 9 couples had submitted victim impact statements and that most of

Goss’s victims had been elderly and “trusted him” because they had “met Goss at

church, through Senior Citizen groups[,] . . . had known him since he was a

child[,]” and, in some cases, “had purchased insurance from him.” Goss declined

to cross-examine any of the victims during his sentencing hearing, and he did not

request a continuance to respond to their statements.

The district court also did not abuse its discretion in sentencing Goss to 144

months of imprisonment. The district court varied upward from the advisory

guideline range of 63 to 78 months based on the “victim statements and . . . the

quarterly reports . . . that Mr. Goss sent to his investors,” which revealed that Goss

3 Case: 12-11481 Date Filed: 11/30/2012 Page: 4 of 4

used a “very elaborate cover-up” in the course of defrauding 41 individuals and 10

couples of almost $2 million over the course of nine years. In the light of these

circumstances, the district court reasonably determined that a sentence above the

recommended range was necessary to address the nature and circumstances of

Goss’s offense, his history and characteristics, and the seriousness of his offense

and to promote respect for the law, impose a just punishment, deter similar future

crimes, and protect the public. 18 U.S.C. § 3553(a); see Gall v. United States, 552

U.S. 38, 128 S. Ct. 586 (2007). Goss’s sentence, which is well below the

maximum statutory sentence of 20 years of imprisonment, is reasonable.

We AFFIRM Goss’s sentence.