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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10111
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00107-CAP-GGB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA DENESE ANDERSON,
STEPHEN PAUL THOMAS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(October 29, 2013)
Before DUBINA, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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Appellants Patricia Denese Anderson and Stephen Paul Thomas, a married
couple, appeal their convictions, following a jury trial, for one count of conspiracy
to defraud the government by impeding the Internal Revenue Service (“IRS”) in its
collection of income taxes, in violation of 18 U.S.C. § 371, and one count each of
making a false claim against the government, in violation of 18 U.S.C. § 287.
Thomas also appeals his 60-month total sentence, and Anderson appeals her 51-
month total sentence and $10,000 fine. On appeal, Anderson and Thomas both
argue that the district court: (i) erroneously denied their request for a mistrial after
the court commented on the evidence; and (ii) improperly imposed two-level
sophisticated-means enhancements to their sentencing guideline calculations. In
addition, Anderson argues that: (i) the district court improperly admitted into
evidence a letter that Anderson mailed to the court; (ii) the cumulative effect of
trial errors entitles Anderson to a new trial; (iii) the district court improperly
imposed a two-level obstruction-of-justice enhancement to Anderson’s guideline
calculations; (iv) Anderson’s 51-month sentence is substantively unreasonable; and
(v) the district court erroneously imposed a $10,000 fine as part of Anderson’s
sentence. After reviewing the record and the parties’ briefs, we affirm Anderson’s
and Thomas’s convictions and sentences, but we vacate the imposition of
Anderson’s fine, and remand in part.
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I.
Anderson argues that the district court improperly admitted into evidence
under Federal Rule of Evidence 404(b) a pro se “letter” that she mailed to the
district court before trial. In this “letter,” Anderson asserted that a magistrate judge
had “convert[ed]” the magistrate judge and an Assistant U.S. Attorney “into
accommodated parties with respect to [a] debt,” which Anderson thereby purported
to “discharge.” Anderson contends that this document had no probative value and
was highly prejudicial, as it could only be perceived as bad-character evidence.
We review a district court’s Rule 404(b) rulings for an abuse of discretion.
United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005). Under this
standard, we must affirm, even if we might have decided the issue differently, so
long as the trial court’s decision was not based on a clear error of judgment or
application of the wrong legal standard. See id. at 1312. Rule 404(b) prohibits the
admission of evidence of a person’s crimes or other wrongful acts except in certain
circumstances. Fed.R.Evid. 404(b). Nevertheless, Rule 404(b) is a “rule of
inclusion,” and relevant Rule 404(b) evidence “should not lightly be excluded”
when it is central to the government’s case. United States v. Jernigan, 341 F.3d
1273, 1280 (11th Cir. 2003) (internal quotation marks omitted); see also United
States v. Sanders, 668 F.3d 1298, 1314 (11th Cir. 2012) (explaining that Rule
404(b) allows extrinsic evidence “unless it tends to prove only criminal
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propensity” (internal quotation marks omitted)). In order to be admissible under
Rule 404(b) the evidence must be relevant to an issue other than the defendant’s
character, the government must offer sufficient proof for the jury to find by a
preponderance of evidence that the defendant committed the act, and its probative
value must not be substantially outweighed by its undue prejudice, satisfying Rule
403. Matthews, 431 F.3d at 1310-11 (quoting United States v. Delgado, 56 F.3d
1357, 1365 (11th Cir. 1995)).
Where an extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendant’s state of mind in perpetrating both the
extrinsic and charged offenses. United States v. Zapata, 139 F.3d 1355, 1358
(11th Cir. 1998). Thus, the first prong of the Rule 404(b) test is satisfied where the
state of mind required for both offenses is the same. Id. Under the third prong of
the test, to determine whether the probative value of the evidence is substantially
outweighed by its prejudicial effect, a district court must assess all the
circumstances surrounding the extrinsic offense, including prosecutorial need,
overall similarity between the extrinsic act and the charged offense, and temporal
remoteness. See id. A district court’s limiting instruction can reduce the risk of
undue prejudice. See Zapata, 139 F.3d at 1358. When the district court gives a
curative instruction to address improper and prejudicial evidence, we will reverse
only if the evidence is “so highly prejudicial as to be incurable by the trial court’s
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admonition.” United States v. Harriston, 329 F.3d 779, 787 n.4 (11th Cir. 2003)
(internal quotation marks omitted). Finally, even if the district court abused its
discretion in admitting evidence in violation of Rule 404(b), we may still affirm if
the error was harmless. See Fed.R.Crim.P. 52(a); United States v. Hubert, 138
F.3d 912, 914 (11th Cir. 1998).
Here, we conclude that the document at issue had minimal probative value
because it shed no light on whether Anderson possessed the intent to defraud the
government, as it was patently frivolous on its face and did not seek to defraud the
government out of anything. Nevertheless, any error in its admission was
harmless, as the jury was presented with substantial additional evidence similar to
the unorthodox views set forth in the document as well as substantial evidence of
Anderson’s guilt. It is highly unlikely that this single document—out of hundreds
of documents introduced over the course of a 6-day trial in which 24 witnesses
testified—had any appreciable effect on the outcome. See Fed.R.Crim.P. 52(a);
Hubert, 138 F.3d at 914. Moreover, the court instructed the jury to consider the
document only to the extent that it shed light on Anderson’s state of mind, which
also served to mitigate any possible prejudice resulting from its admission. See
Zapata, 139 F.3d at 1358; Harriston, 329 F.3d at 787 n.4. Thus, we affirm as to
this issue.
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II.
Anderson and Thomas argue that the district court erroneously denied their
request for a mistrial after the court improperly injected itself into the proceedings
by asking a series of leading questions—“each loaded with highly derogatory
commentary”—that “poison[ed]” the jury against their good-faith defense, which
was the only contested issue at trial. According to Anderson and Thomas, the
court’s questions “effectively conveyed the trial judge’s negative and derogatory
personal opinion” regarding the sincerity of their beliefs and thereby effectively
directed a guilty verdict. The court also improperly took judicial notice that a
secret U.S. Treasury account does not exist. The court’s instruction to the jury not
to give more weight to questions asked by the court and disregard its comments on
the evidence was inapplicable and did not cure the error.
We review the denial of a motion for a mistrial for an abuse of discretion.
United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004). We similarly
review a district judge’s conduct during trial for an abuse of discretion. United
States v. Palma, 511 F.3d 1311, 1317 (11th Cir. 2008). A defendant is entitled to a
grant of a mistrial only upon a showing of substantial prejudice. Wright, 392 F.3d
at 1274.
Although a defendant is entitled to an impartial judge, because of the weight
juries are likely to place with the court’s opinion, a district judge “is not relegated
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to complete silence and inaction during the course of a criminal jury trial.” Id.
(internal quotation marks omitted). The district court may comment on the
evidence, question witnesses and elicit facts not yet adduced or clarify those
previously presented, and “maintain the pace of the trial by interrupting or cutting
off counsel as a matter of discretion.” United States v. Hill, 643 F.3d 807, 845
(11th Cir. 2011), cert. denied, 132 S.Ct. 1988 (2012) (internal quotation marks
omitted); see also Fed.R.Evid. 614(b) (“The court may examine a witness
regardless of who calls the witness.”); Wright, 392 F.3d at 1275 (holding that it
was “entirely proper for the court to make inquiries of a witness in order to clarify
the evidence presented” (internal quotation marks omitted)).
However, a district court abuses its authority when it abandons its proper
role and assumes the role of an advocate. Fed.R.Evid. 614, Advisory Committee
Note; Wright, 392 F.3d at 1274. The trial judge “must be above even the
appearance of being partial to the prosecution.” Moore v. United States, 598 F.2d
439, 442 (5th Cir. 1979) (internal quotation marks omitted) 1.
There must be a “clear effect on the jury” for us to reverse based on
improper comments by the trial judge. Hill, 643 F.3d at 845 (internal quotation
marks omitted). Thus, the district court abuses its discretion only when the judge’s
conduct “strays from neutrality,” and its remarks demonstrate “pervasive bias and
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit).
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unfairness that actually prejudice a party.” Id. at 845-46 (internal quotation marks
omitted); see also id. at 846 (“[A]n occasional lapse of patience from the bench
will not suffice to overturn a conviction returned after a full and fair presentation
of the evidence.” (quotation omitted)); United States v. Ramirez-Chilel, 289 F.3d
744, 750 n.6 (11th Cir. 2002) (“[I]n order to amount to reversible error, a judge’s
remarks must demonstrate such pervasive bias and unfairness that they prejudice
one of the parties in the case.”).
An instruction to the jury that jurors are the sole fact-finders may cure a
deficiency in the district court’s conduct. See Moore, 598 F.2d at 443; United
States v. Block, 755 F.2d 770, 776 (11th Cir. 1985) (concluding that the district
court adequately informed the jury of the purpose and function of the court’s
questions by instructing the jury that the court’s questions were “solely for the
purpose of eliciting information and not to express . . . [an] opinion or state any
facts”); Kyle v. United States, 402 F.2d 443, 445 (5th Cir. 1968) (explaining that it
is within the trial judge’s province to summarize and comment upon the evidence
and express his opinion on the facts, provided it is made clear to the jury that the
comments are not binding on the jury and that jurors are free to determine facts
according to their own judgment). We presume that the jury follows a district
court’s instructions to disregard comments the court made during trial. See Hill,
643 F.3d at 846, 849.
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Here, the district court asked an IRS agent to confirm that
“Redemptionism”—which refers to a theory that every taxpayer has a secret bank
account with the U.S. Treasury—is a “fictitious theory” “made up by tax protestors
to try to avoid paying taxes.” The inquiry effectively conveyed to the jury the
court’s belief that the defendants’ sole defense—good-faith belief—was “made up”
in order to avoid paying taxes and, accordingly, was meritless. The court therefore
strayed from neutrality and assumed the role of an advocate. See Hill, 643 F.3d at
845-46; Wright, 392 F.3d at 1274.
However, Anderson and Thomas have not shown that the court’s inquiry,
which occurred on the second day of a six-day trial, had a “clear effect on the
jury.” See Hill, 643 F.3d at 845. Before the court’s questioning, the IRS agent
testified that “there is no bank account at the United States Treasury for any of us
other than your Social Security account.” Moreover, the jury heard substantial
other evidence of the defendants’ intent to defraud, including testimony and
documents establishing their obstructionist interactions with the IRS over the
course of several years in the face of repeated correspondence from the IRS
detailing their obligation to pay taxes and the consequences for failing to do so,
and their attempts to shield income from taxation in the United States by way of
documents intended to characterize their domestic businesses as overseas entities.
The jury also heard testimony from a second witness that there are no secret U.S.
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Treasury accounts. Moreover, the jury heard lengthy testimony from Thomas and
his father in support of the defendants’ good-faith defense. Finally, the district
court properly instructed the jury that: (i) the court’s questions should be given no
more significance or importance than attorneys’ questions; (ii) the jury should
disregard any comments made by the court on the evidence; and (iii) the jurors are
the sole and the exclusive finders of fact in the case. See Block, 755 F.2d at 776;
Moore, 598 F.2d at 443; Kyle, 402 F.2d at 445. Accordingly, we affirm as to this
issue.
III.
Anderson argues that, even if the above errors individually do not mandate
reversal, their cumulative effect prejudiced her right to a fair trial. She asserts that
the government’s proof of intent largely depended on inferences drawn from the
defendants’ correspondence over several years. Thus, because intent was the only
element at issue, Anderson’s right to a fair trial was prejudiced by the improper
Rule 404(b) evidence and the trial judge’s “virtual pronouncement” that he did not
believe the defendants.
Under the cumulative-error doctrine, an aggregation of non-reversible errors
(i.e., plain errors that do not require reversal and harmless errors) can mandate
reversal. United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). In
addressing a cumulative-error claim, we examine the trial record as a whole to
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determine whether the appellant was afforded a fundamentally fair trial. United
States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). Whether cumulative
error is harmless depends on whether the defendant’s substantial rights were
affected—the same inquiry that applies to individual errors. Baker, 432 F.3d at
1223. “[T]he cumulative prejudicial effect of many errors may be greater than the
sum of prejudice caused by each individual error.” Id. The total effect of the
errors will depend on several factors, including: (i) the nature and number of
errors, and their interrelationship, if any, and combined effect; (ii) how the district
court dealt with the errors as they arose (including the efficacy, if any, of remedial
efforts); (iii) the strength of the government’s case; and (iv) the length of the trial.
Id.
We allot substantial deference to the fact-finder in reaching credibility
determinations. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003).
The fact-finder, who personally observes witnesses’ testimony, is in a better
position than a reviewing court to assess their credibility. See Ramirez-Chilel, 289
F.3d at 749. When a defendant testifies in his own defense, the fact-finder may
disbelieve his testimony, and consider the defendant’s testimony as substantive
evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.
1995).
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We conclude from the record that Anderson has not shown that she was
deprived of a fundamentally fair trial, as the errors she identifies were harmless
both individually and cumulatively. See Baker, 432 F.3d at 1223; Calderon, 127
F.3d at 1333. As discussed above, her pretrial pro se submission was simply one
of numerous frivolous filings made by the defendants over the course of several
years, and the district court’s improper questioning similarly was both brief and
isolated. Even when considered cumulatively, these were relatively small events
over the course of the entire trial, during which substantial evidence was
presented—including the testimony of Thomas and his father, who explained the
defense theory of good-faith belief in great detail, and who the jury was entitled to
disbelieve—from which the jury could have determined that Anderson acted with
the intent to defraud the government. See Calderon, 127 F.3d at 1333; Brown, 53
F.3d at 314. Accordingly, we affirm this issue.
IV.
Anderson and Thomas argue that the district court erred when it imposed
two-level sophisticated-means enhancements to their sentencing guideline
calculations based on its findings that: (i) fictitious Employer Identification
Numbers were used; (ii) “somehow in the scheme they use[d their] foreign trust in
Belize”; and (iii) the defendants “used assets or used bank accounts to conceal
assets by making payments to family members and concealing the transactions.”
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They further argue that they submitted evidence that the identification numbers
that Thomas gave his banks all belonged to their trust agreement, which was the
only account kept in Belize. Additionally, they claim that they did not conceal
Thomas’s loan repayments to his father, and their conduct was neither complex nor
intricate. For example, the pair of Forms 1040 and the 1099-OIDs that they sent to
the IRS were incomplete, simple, and unsophisticated.
We review for clear error a district court’s finding that sophisticated means
were used. United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011),
cert. denied, 132 S.Ct. 1066 (2012). The sophisticated-means enhancement is
appropriate for especially complex or intricate conduct during the execution or
concealment of the offense. U.S.S.G. § 2B1.1, comment. (n.8(B)); Barrington,
648 F.3d at 1199. Conduct such as hiding assets or transactions through the use of
fictitious or shell entities or offshore accounts ordinarily indicates sophisticated
means. U.S.S.G. § 2B1.1, comment. (n.8(B)). Each action by a defendant need
not be sophisticated in order to support this enhancement; it is sufficient if the
totality of the scheme was sophisticated. Barrington, 648 F.3d at 1199.
In United States v. Ghertler, 605 F.3d 1256, 1267-68 (11th Cir. 2010), we
affirmed the application of a sophisticated-means enhancement where the
defendant conducted extensive research to develop inside information to facilitate
a scheme to defraud; forged false company documents; and used unwitting third
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parties to conceal the fraud. Similarly, in United States v. Campbell, 491 F.3d
1306 (11th Cir. 2007), we held that a sophisticated-means enhancement was
appropriate where the defendant used campaign accounts and credit cards issued to
others to conceal cash expenditures and tax fraud. Id at 1315. We noted in
Campbell that there was no difference between hiding assets or transactions by use
of fictitious entities, corporate shells, or offshore accounts, and hiding assets or
transactions by use of a “straw man” or campaign fund. Id. at 1316.
Anderson and Thomas have not shown that the district court erred when it
imposed the sophisticated-means enhancements. The district court was entitled to
determine that the purpose of their foreign trust was to hide assets from the
government, particularly in light of the defendants’ continued efforts to avoid
paying taxes over several years, which included multiple filings asserting that
income from various domestic sources was non-domestic, as a result of which at
least one of their sources of income stopped reporting earnings to the IRS. See
U.S.S.G. § 2B1.1, comment. (n.8(B)); Ghertler, 605 F.3d at 1267-68; Campbell,
491 F.3d at 1315-16. Thus, we affirm the sophisticated-means enhancements.
V.
Anderson argues that the district court also erred when it imposed a two-
level obstruction-of-justice enhancement based on its determination that her prior
correspondence with the district court and the government was “obstructing and
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harassing” and because of “what happened in [the district] court” at a June 14,
2012, status conference (the “June 14 Conference”). According to Anderson, no
evidence indicated who the correspondence obstructed or harassed or how it did so,
and Anderson stopped when ordered to do so. The district court also made no
findings regarding “what happened in [the district] court on June the 14th.”
Anderson’s colloquy with the court at the June 14 Conference did not show an
intent to obstruct, but rather indicated that Anderson was scared, confused, and
acting as she had been coached by her husband’s family.
We review a district court’s factual findings underlying an obstruction-of-
justice sentencing enhancement for clear error, and the district court’s application
of the factual findings to the Sentencing Guidelines de novo. United States v. Doe,
661 F.3d 550, 565 (11th Cir. 2011), cert. denied, 132 S.Ct. 1648 (2012). The
enhancement applies where the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of conviction,
related conduct, or a closely related offense. U.S.S.G. § 3C1.1; Doe, 661 F.3d at
565-66. Examples of obstructive conduct include unlawfully influencing witnesses
or jurors; committing perjury or providing materially false information to a judge,
law enforcement officer, or probation officer; and destroying or concealing
material evidence. U.S.S.G. § 3C1.1, comment. (n.4). Examples of conduct that
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ordinarily do not warrant an enhancement include giving false identifying
information at arrest (except where doing so significantly hinders the
investigation), making false statements not under oath to law enforcement officers,
providing immaterially incomplete or misleading information to a probation
officer, and lying to a probation officer about drug use. See id., comment. (n.5).
“Obstructive conduct can vary widely in nature, degree of planning, and
seriousness.” Id., comment. (n.3). The defendant need not be successful in her
attempt to impede or obstruct the administration of justice in order for the
enhancement to apply. See United States v. Taylor, 88 F.3d 938, 943-44 (11th Cir.
1996).
To permit meaningful appellate review, a district court applying the
obstruction-of-justice enhancement must identify what the defendant did, why that
conduct warranted the enhancement, and how that conduct hindered the
investigation or prosecution of the offense. Id. at 944. However, even where a
district court fails to make individualized findings, if the record clearly reflects the
basis for the enhancement and supports it, a remand is unnecessary. Id.; see also
United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004); Hubert, 138 F.3d
at 915.
The record demonstrates that the district court failed to make specific
findings regarding what Anderson did, why that conduct warranted the
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enhancement, and how that conduct hindered the investigation or prosecution of
Anderson’s offenses. See Taylor, 88 F.3d at 944. Nevertheless, we conclude that a
remand here is unnecessary because, as discussed below, the record sufficiently
reflects the basis for the enhancement and supports it. See Uscinski, 369 F.3d at
1246; Taylor, 88 F.3d at 944.
The only relevant disputed factual issue here is whether, when she engaged
in the conduct upon which the court imposed the § 3C1.1 enhancement, Anderson
intended to obstruct her prosecution. Although the district court’s explanation for
its implicit finding at sentencing that Anderson possessed the requisite intent is not
the model of clarity, Anderson has not shown that the district court clearly erred in
making this finding. See Doe, 661 F.3d at 565. The district court was in the best
position to observe Anderson’s demeanor during the June 14 Conference—when it
explicitly found that Anderson was “trying to disrupt the Court”—and, therefore,
was uniquely situated to make findings regarding Anderson’s intent. See Ramirez-
Chilel, 289 F.3d at 749. The court also determined during trial that Anderson was
“clearly trying to obstruct and confuse and delay the government . . . as well as the
court” when she submitted two dozen pro se pretrial filings. The combined effect
of Anderson’s conduct during the June 14 Conference and her pro se pretrial
filings resulted in an unnecessary drain on the district court’s resources, and the
court’s implicit finding that Anderson engaged in those acts with the intent to
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obstruct her court proceedings are sufficient to support the § 3C1.1 enhancement.
See U.S.S.G. § 3C1.1; Uscinski, 369 F.3d at 1246; Doe, 661 F.3d at 565.
VI.
Anderson argues that her 51-month sentence is substantively unreasonable
because, at most, she labored under an unreasonable understanding of the law.
Anderson further asserts that she was significantly less culpable than Thomas, and
she was heavily influenced by, and acted out of subservience to, Thomas’s family.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591
(2007). The district court is required to impose a sentence sufficient, but not
greater than necessary, to comply with the purposes listed in 18 U.S.C. §
3553(a)(2), including the need to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, deter criminal conduct,
and protect the public from the defendant’s future criminal conduct. 18 U.S.C. §
3553(a)(2). The party challenging the sentence has the burden of showing that it
was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In reviewing the reasonableness of a sentence, we first consider whether the
district court committed a procedural error, such as failing to calculate or
improperly calculating the guideline range. Gall, 552 U.S. at 51, 128 S.Ct. at 597.
If we determine that a sentence is procedurally sound, we examine whether the
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sentence was substantively reasonable in light of the totality of the circumstances
and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008). Thus, we will reverse only if “left with the definite and firm conviction that
the district court committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc) (internal quotation marks omitted). A sentence imposed well
below the statutory maximum is one indicator of a reasonable sentence. See
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Although we do
not automatically presume that a within-guideline sentence is reasonable, we
ordinarily expect such a sentence to be reasonable. United States v. Tobin, 676
F.3d 1264, 1310 (11th Cir.), cert. denied, 133 S.Ct. 658 (2012).
Anderson’s sentence is reasonable. Anderson’s 51-month sentence is within
her 51-63-month guideline range, and we ordinarily expect a within guideline
sentence to be reasonable. See Tobin, 676 F.3d at 1310. The sentence is
significantly below the statutory maximum of 10 years’ imprisonment, which is
another indicator of its reasonableness. See 18 U.S.C. §§ 287, 371; Gonzalez, 550
F.3d at 1324. The district court explained that, although there was a difference
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between Anderson and Thomas, Anderson was a full participant in the charged
conduct, and a shorter sentence was unlikely to deter Anderson, who did not
believe that she committed fraud. Extensive additional explanation is not required
here, where the context and the record make clear that the court listened to each
argument and found the circumstances insufficient to warrant a sentence lower
than the guideline range, and nothing in the record suggests that Anderson’s
sentence is outside the range of reasonable sentences in this type of case. See Irey,
612 F.3d at 1190. Thus, we affirm her sentence.
VII.
Finally, Anderson argues that her $10,000 fine is unreasonable because the
district court found that she was indigent and did not consider or discuss the
relevant guideline factors, including her ability to pay.
We review the district court’s imposition of a fine for clear error. United
States v. Long, 122 F.3d 1360, 1366 (11th Cir. 1997). The Sentencing Guidelines
require district courts to impose a fine in all cases, except where the defendant
establishes that she is unable to pay and is not likely to be able to pay any fine.
U.S.S.G. § 5E1.2(a). Thus, the burden is on the defendant to prove her inability to
pay a fine. United States v. Gonzalez, 541 F.3d 1250, 1255 (11th Cir. 2008). If a
defendant establishes that she is unable to pay a fine, the court may waive the fine
or impose a lesser fine. U.S.S.G. § 5E1.2(e).
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Once a district court decides that a fine is appropriate, it must consider the
factors in § 5E1.2(d) to determine the amount of the fine. Gonzalez, 541 F.3d at
1255. A district court is not required to make specific findings for each factor. Id.
at 1256. However, the record must contain sufficient information with respect to
the factors to permit a reviewing court to conclude that the district court did not
clearly err in imposing or setting the amount of the fine. United States v. Khawaja,
118 F.3d 1454, 1459 (11th Cir. 1997). If the presentence investigation report
(“PSI”) presented information with respect to the factors, and the district court
reviewed the PSI before imposing the fine, we “infer without hesitation” that the
district court considered the pertinent factors before imposing the fine. Id.
However, the mere adoption of the PSI will not satisfy a district court’s obligation
to rule on unresolved objections at sentencing. Id. at 1460. A defendant’s
objection to the imposition of a fine gives the district court an opportunity to
correct any error it might have made and guide appellate review. United States v.
Hernandez, 160 F.3d 661, 666 (11th Cir. 1998). If the record does not reflect the
district court’s reasoned basis for imposing a fine, we must remand the case to the
district court so it can make the necessary factual findings. Gonzalez, 541 F.3d at
1256.
We need not remand for resentencing where a sentencing error was
harmless. See United States v. Dulcio, 441 F.3d 1269, 1277 (11th Cir. 2006). A
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non-constitutional sentencing error is harmless where the error did not contribute
to the sentence. Id.
Here, the record is insufficient to permit us to conclude that the district court
had a reasoned basis for imposing the $10,000 fine. According to the undisputed,
court-adopted PSI facts, Anderson has not worked outside the home since 2001,
has no assets, and has liabilities of at least $49,000. The probation officer
concluded that it was unlikely that she would be able to pay a fine, and the PSI
presented no information concerning how much of a fine she might be able to pay.
Although Anderson presented no additional evidence of her ability to pay, she
relied on the district court’s prior finding that she could not afford counsel as the
basis for her objection to the imposition of a fine, and the court did not address this
objection or offer any reasons for the fine imposed. See Khawaja, 118 F.3d at
1460 (concluding that the record was insufficient for this court to review the
decision to impose a fine where the district court failed to address the defendant’s
objections thereto).
The error here is not harmless because we cannot determine from the record
whether the court’s failure to make factual findings contributed to the imposition
of a fine. See Dulcio, 441 F.3d at 1277. The indication in the PSI that Anderson is
“able-bodied” and can “earn income through work in prison industries” provides
no indication of the amount of income that she may be able to earn. Accordingly,
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we vacate Anderson’s sentence as to the imposition of a fine and remand her case
for resentencing consistent with this opinion
VIII.
For the foregoing reasons, we affirm Anderson’s and Thomas’s convictions
and prison sentences, vacate the district court’s imposition of Anderson’s $10,000
fine, and remand the case for the limited purpose of determining whether there is a
reasoned basis for imposing a fine on Anderson.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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