United States v. Raymond Thomas

437 F. App'x 456
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 12, 2011
Docket10-4277
StatusUnpublished
Cited by17 cases

This text of 437 F. App'x 456 (United States v. Raymond Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Raymond Thomas, 437 F. App'x 456 (6th Cir. 2011).

Opinion

ROGERS, Circuit Judge.

Raymond Thomas, a former police officer who swindled dozens of family members and friends out of approximately one million dollars, appeals his 72-month sentence for mail fraud and filing a false tax return. Thomas challenges the reasonableness of the district court’s decision to vary substantially above a guideline range of 33 to 41 months, arguing that the court placed undue weight on a single sentencing factor — the loss to the victims — and did not adequately consider the other sentencing factors under 18 U.S.C. § 3553(a). The district court did not abuse its discretion in imposing this sentence.

After the collapse of his nine-year Ponzi scheme, Thomas pled guilty to mail fraud, see 18 U.S.C. § 1341, and to filing a false tax return, see 26 U.S.C. § 7206(1). As part of the plea agreement, the Government agreed to recommend a sentence within the properly-calculated advisory guideline range of 33 to 41 months. The sentencing hearing included extensive victim impact testimony from family members and friends, who described the financial loss they sustained and the crippling effects of the fraud on their lives. Thomas then addressed the court and apologized for what he had done. The district court discounted his expression of remorse, however, because the court believed that Thomas ultimately blamed the economy and “a few bad business deals” for the victims’ losses and had not truly accepted responsibility for his conduct.

At the close of the sentencing hearing, the Government adhered to its agreement and recommended a sentence at the high end of the guideline range. The district court expressed some difficulty in selecting a sentence that was “sufficient, but not greater than necessary, to comply with” the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). After concluding that *458 Thomas was not remorseful and that a within-guideline sentence was “totally insufficient ... to comply with the purposes of sentencing,” R. 23 at 103-04, the court imposed a 72-month term of imprisonment — a substantial variance above the guideline range of 33 to 41 months.

The district court did not abuse its discretion in sentencing Thomas to an above-guideline prison term. Even when a sentence falls outside the guideline range, we review the district court’s sentencing determination for reasonableness “under a deferential abuse-of-discretion standard,” giving “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Presley, 547 F.3d 625, 631 (6th Cir.2008) (internal quotation marks omitted). However, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct. 586.

Thomas argues that his sentence is substantively unreasonable for three reasons, all of them unavailing. He claims that the district court (1) placed undue weight on a single sentencing factor (the victims’ losses); (2) placed insufficient weight on other relevant factors, including his background, the guideline range recommended in his plea agreement, and his willingness to repay the victims; and (3) did not adequately justify the extent of the variance above the guideline range.

First, the district court did not give an unreasonable amount of weight to the results of the Ponzi scheme because the court considered the victims’ economic and psychological losses as merely one aspect of both the “nature and circumstances” of Thomas’s conduct, 18 U.S.C. § 3553(a)(1), and “the need for the sentence imposed ... to reflect the seriousness of the offense,” id. § 3553(a)(2)(A). The sentencing transcript and memorandum reflect that the court was equally — if not more— focused on the identity of Thomas’s victims, rather than merely on the amount of their financial losses. The court was appalled that Thomas selected these people— his family members and close friends — as the victims of his Ponzi scheme. The court considered Thomas’s conduct to be more reprehensible — more serious — than the typical fraud scheme because of whom Thomas chose to defraud, not merely because the resulting losses were extensive.

Even if the district court emphasized these particular § 3553(a) factors, that does not by itself render an above-guideline sentence unreasonable. A district court does not commit reversible error simply by “attach[ing] great weight” to a single factor. Gall, 552 U.S. at 57, 128 S.Ct. 586. Although “the case law offers little guidance as to what an ‘unreasonable amount of weight’ would be,” where “a district court explicitly or implicitly considers and weighs all pertinent factors, a defendant clearly bears a much greater burden in arguing that the court has given an ‘unreasonable amount of weight’ to any particular one.” United States v. Thomas, 395 Fed.Appx. 168, 174 (6th Cir.2010). Here, the district court explicitly considered all of the relevant sentencing factors. Because the record does not suggest that the court attached unreasonably more weight to the victims’ losses than to any of *459 the other § 3553(a) factors, Thomas cannot meet this burden.

Second, Thomas claims that the district court placed “insufficient weight” on other relevant sentencing factors. This argument fails for two reasons, the first of which is that “insufficient weight” is not the same as “fail[ed] to consider.” See Presley, 547 F.3d at 631. Thomas does not argue that the district court ignored any of the relevant sentencing factors, but instead that the court weighed some more heavily than others. Even if we agreed with him, that would not provide a basis for second-guessing the district court’s weighing of the § 3553(a) factors. See Gall, 552 U.S. at 51, 128 S.Ct. 586. The second problem with Thomas’s argument is that it is not supported by the record. The sentencing transcript and memorandum reflect that the district court considered all of the other relevant sentencing factors and gave them appropriate weight under the circumstances.

Thomas argues that the court did not assign adequate weight to his “history and characteristics,” see 18 U.S.C. §

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437 F. App'x 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-raymond-thomas-ca6-2011.