United States v. Shemtov Michtavi

225 F. App'x 857
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 24, 2007
Docket06-11514
StatusUnpublished

This text of 225 F. App'x 857 (United States v. Shemtov Michtavi) 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. Shemtov Michtavi, 225 F. App'x 857 (11th Cir. 2007).

Opinion

PER CURIAM:

Shemtov Michtavi appeals his 240-month sentence, imposed on remand, following his conviction for conspiracy to distribute a mixture and substance containing a detectable amount of Methylene-dioxymethamphetamine (“MDMA”), or “Ecstasy,” in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(C), 846. We previously remanded this case to the district eourt for re-sentencing after determining that constitutional and statutory Booker errors had occurred. On remand, the district court imposed an identical sentence when considering the guidelines as advisory. On appeal, Michtavi argues that the district court erred by failing to determine at re-sentencing the drug quantities attributable to him, and by sentencing him based on a drug quantity determination that was not found by the jury. Mi-chtavi also argues that his sentence was unreasonable under 18 U.S.C. § 3553(a).

I. Drug Quantity Determination

Michtavi challenged the findings as to the drug quantity amount attributed to him both at his initial sentencing hearing and at re-sentencing. At re-sentencing, the district adopted its quantity findings from the initial hearing. We review a sentencing court’s application of the Sentencing Guidelines de novo. United States *859 v. Edmonds, 348 F.3d 950, 952-53 (11th Cir.2003). We review a district court’s drug quantity determination for clear error. United States v. Mertilus, 111 F.3d 870, 873 (11th Cir.1997).

Section 2D1.1 of the Sentencing Guidelines establishes the base-offense levels for drug offenses according to the quantity of drugs attributable to the defendant. See U.S.S.G. § 2D1.1. “The government must establish the drug quantity by a preponderance of the evidence.” Mertilus, 111 F.3d at 873 In a drug conspiracy, a defendant may be held accountable not only for his own acts but also for “ ‘all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.’ ” United States v. Beasley, 2 F.3d 1551, 1561 (11th Cir.1993) (quoting U.S.S.G. § lB1.3(a)(l)(B)). “Thus, the Guidelines require a district court to attribute to a defendant all drugs foresee-ably distributed pursuant to a common scheme or plan of which that defendant’s offense of conviction was a part.” United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995).

The district court did not clearly err in its initial drug quantity determination, and it did not err in relying on its finding at re-sentencing. The district court attributed 182.2 kilograms of MDMA tablets seized from the New York apartment to Michtavi. Michtavi conspired with Zev Rosenstein, who owned the seized drugs, and Morde-chai Cohen to distribute drugs. Michtavi told Cohen that if Cohen could find buyers for the MDMA, Michtavi could supply the phis. The apartment was used to complete several drug deals which Michtavi brokered. Aso, the recorded telephone conversations between Michtavi and Cohen, wherein they discussed the seizure of the 182.2 kilograms of MDMA in the New York apartment and Cohen’s responsibility for the money owed for the drugs, evidences that the amount ultimately seized was reasonably foreseeable to Michtavi. Given that the district court had already heard the evidence at trial and argument on the issue at the initial sentencing hearing, there was no error in relying on its findings at re-sentencing when neither side requested a new evidentiary hearing.

Additionally, Michtavi argues that the drug quantity finding should have been made by a jury. We have held that in a § 841 case in which a defendant’s ultimate sentence falls at or below the statutory maximum penalty provided in § 841(b)(1)(c), there is no constitutional error stemming from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and drug quantity need not have been submitted to a jury and proven beyond a reasonable doubt. See United States v. Underwood, 446 F.3d 1340, 1344-45 (11th Cir.2006), cert. denied, — U.S. —, 127 S.Ct. 225, 166 L.Ed.2d 179 (2006) (citing United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001)). As Michtavi’s ultimate sentence was at the statutory maximum of 20 years, the district court did not violate Michtavi’s constitutional rights.

II. Reasonableness of Michtavi’s Sentence

Michtavi contends that his sentence was unreasonable because the district court (1) failed to adequately consider his health and age and (2) created sentencing disparities between Michtavi and co-conspirators. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences under the advisory guideline regime for reasonableness. Reasonableness review is deferential, requiring us to “evaluate whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in [18 U.S.C.] section 3553(a).” *860 United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005)(per curiam). “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court[,]” and we “will not substitute our judgment in weighing the relevant factors ...” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), petition for cert. filed, (U.S. Oct. 19, 2006) (No. 06-7352).

Michtavi bears the burden of establishing that his sentence is unreasonable in light of the record and § 3553(a) sentencing factors. Talley, 431 F.3d at 788. The district court must engage in a two step process. First it must correctly calculate the defendant’s guideline range; second, it must consider the § 3553(a) sentencing factors. Id. at 786. The court is not required to explicitly consider each of these factors on the record. United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005). It is enough for the court to acknowledge the parties’ arguments and state that it has considered the factors. Id.

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Related

United States v. Mertilus
111 F.3d 870 (Eleventh Circuit, 1997)
United States v. Edmonds
348 F.3d 950 (Eleventh Circuit, 2003)
United States v. David William Scott
426 F.3d 1324 (Eleventh Circuit, 2005)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Darin Underwood
446 F.3d 1340 (Eleventh Circuit, 2006)
Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Lawrence
47 F.3d 1559 (Eleventh Circuit, 1995)
United States v. Williams
456 F.3d 1353 (Eleventh Circuit, 2006)

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Bluebook (online)
225 F. App'x 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shemtov-michtavi-ca11-2007.