United States v. Russell G. MacArthur, Jr.

323 F. App'x 880
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 23, 2009
Docket08-13020
StatusUnpublished

This text of 323 F. App'x 880 (United States v. Russell G. MacArthur, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Russell G. MacArthur, Jr., 323 F. App'x 880 (11th Cir. 2009).

Opinion

PER CURIAM:

Russell G. MacArthur, Jr. appeals his 281-month total sentence for conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349, mail fraud, in violation of 18 U.S.C. § 1341, and criminal contempt in violating a court order, in violation of 18 U.S.C. § 401(3).

On appeal, MacArthur first argues that the district court clearly erred in holding him responsible for the losses incurred and persons victimized after he ended his involvement in the business opportunity fraud conspiracy. He also argues that his total sentence is substantively unreasonable because unwarranted disparities exist between his sentence, the sentence imposed on a co-conspirator, and the sentences imposed on other various white-collar criminals.

Upon review of the presentence investigation report and sentencing transcript, and upon consideration of the briefs of the parties, we discern no reversible error.

I.

We normally review the district court’s application of the sentencing guidelines de novo and its findings of fact for clear error. United States v. Baker, 432 F.3d 1189, 1253 (11th Cir.2005). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.2007), cert. denied — U.S.-, 128 S.Ct. 1295, 170 L.Ed.2d 117 (2008) (internal quotation marks omitted). “The findings of fact of the sentencing court may be based on evidence heard during trial, facts admitted by a defendant’s plea of guilty, undisputed statements in the presentence report, or evidence presented at the sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989).

However, “[w]here a defendant raises a sentencing argument for the first time on appeal, we review for plain error.” United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). We will correct plain error only if: “(1) there is an error; (2) the error is plain or obvious; (3) the error *882 affects the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding.” United States v. Douglas, 489 F.3d 1117, 1125 (11th Cir.2007), ce rt. denied, - - U.S. -, 128 S.Ct. 1875, 170 L.Ed.2d 752 (2008). The defendant bears the burden of proving prejudice — that the error affected the outcome of the proceedings. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.), petition for cert. filed (U.S. May 15, 2008) (No. 07-11001).

For offenses involving fraud, including conspiracy to commit mail and wire fraud, the Sentencing Guidelines mandate increased offense levels depending on the amount of loss that resulted from the fraud and the number of victims defrauded. See U.S.S.G. § 2Bl.l(b)(l), (b)(2). For offenses involving more than $2.5 million but less than $7 million in losses, the offense level increases 18 points, whereas for offenses involving more than $7 million but less than $20 million in losses, the offense level increases 20 points. U.S.S.G. § 2B1.1(b)(1). Similarly, the offense level increases 4 points if the offense involved between 50 and 249 victims, whereas the offense level increases 6 points if the offense involved 250 or more victims. U.S.S.G. § 2B1.1(b)(2).

If a defendant withdraws from a conspiracy, he is not responsible at sentencing for actions taken by co-conspirators after his withdrawal. See United States v. Dabbs, 134 F.3d 1071, 1081-83 (11th Cir.1998). A defendant’s participation in a conspiracy is presumed to continue “until all objects of the conspiracy have been accomplished or until the last overt act has been committed by any of the conspirators.” United States v. Arias, 431 F.3d 1327, 1340 (11th Cir.2005). In order to prove withdrawal from a conspiracy, the defendant bears the burden of showing that he (1) took “affirmative steps to defeat the objectives of the conspiracy”; and (2) either “made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement authorities.” Id. at 1340-41. “Mere cessation of participation is not sufficient to establish withdrawal.” Id. at 1341.

We have held that a defendant did not take affirmative acts inconsistent with a conspiracy to burn a church because she, inter alia, “did not convince the [cocon-spirators] to leave” the church. United States v. Odom, 252 F.3d 1289, 1299 (11th Cir.2001). Also, a conspirator’s suspension of his active involvement in a drug conspiracy and establishment of a competing drug operation did not demonstrate affirmative steps to defeat the conspiracy’s objectives. United States v. Young, 39 F.3d 1561, 1571 (11th Cir.1994).

In order to be held responsible at sentencing for the actions of coconspirators, those actions must have been reasonably foreseeable and in furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). Because “the limits of sentencing accountability are not coextensive with the scope of criminal liability, however,” the district court should take a two-pronged approach to determining loss liability for acts of co-conspirators. United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir.2003). “The district court must first determine the scope of criminal activity the defendant agreed to jointly undertake, and then consider all reasonably foreseeable acts and omissions of others in the jointly undertaken criminal activity.” United States v. McCrimmon, 362 F.3d 725, 731 (11th Cir.2004) (internal quotation omitted). If a defendant is aware of the scope of a conspiracy outside of his individual actions, he may be held accountable for actions by co-conspirators in which he was not personally involved. Id. at 732-33.

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Related

United States v. Dabbs
134 F.3d 1071 (Eleventh Circuit, 1998)
United States v. Jennifer Aguillard
217 F.3d 1319 (Eleventh Circuit, 2000)
United States v. Odom
252 F.3d 1289 (Eleventh Circuit, 2001)
United States v. Lisa Hunter, a.k.a. Lesa Hunter
323 F.3d 1314 (Eleventh Circuit, 2003)
United States v. Thomas L. McCrimmon
362 F.3d 725 (Eleventh Circuit, 2004)
United States v. Marvin Baker
432 F.3d 1189 (Eleventh Circuit, 2005)
United States v. Grisel Arias
431 F.3d 1327 (Eleventh Circuit, 2005)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Ronnie Lee Douglas, Jr.
489 F.3d 1117 (Eleventh Circuit, 2007)
United States v. Robertson
493 F.3d 1322 (Eleventh Circuit, 2007)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
United States v. De La Garza
516 F.3d 1266 (Eleventh Circuit, 2008)
United States v. Ellisor
522 F.3d 1255 (Eleventh Circuit, 2008)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. John Wilson
884 F.2d 1355 (Eleventh Circuit, 1989)
United States v. Anthony Chotas
968 F.2d 1193 (Eleventh Circuit, 1992)
United States v. Susan Regueiro
240 F.3d 1321 (Eleventh Circuit, 2001)
Fields v. Ayers
128 S. Ct. 1875 (Supreme Court, 2008)
United States v. Young
39 F.3d 1561 (Eleventh Circuit, 1994)

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Bluebook (online)
323 F. App'x 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-russell-g-macarthur-jr-ca11-2009.