[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15424 ELEVENTH CIRCUIT
JUNE 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00411-CR-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD MALLADY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 25, 2010)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Richard Mallady appeals his 65-month sentence imposed following his
guilty plea to conspiracy to commit bank fraud, 18 U.S.C. §§ 2, 1349. Mallady
contends (1) the district court erred by not making particularized findings as to the
scope of his personal criminal activity before attributing him with the full amount
of loss for the overall conspiracy and (2) based on that procedural deficiency, his
sentence is substantively unreasonable. After review, we affirm Mallady’s
sentence.
I.
For the first time on appeal, Mallady asserts the district court erred by
attributing him with the full amount of loss for the whole conspiracy without
making particularized findings as to the scope of his own criminal activity.1
A district court may hold participants in a conspiracy responsible for the
losses resulting from the reasonably foreseeable acts of co-conspirators in
furtherance of the conspiracy. United States v. Hunter, 323 F.3d 1314, 1319 (11th
Cir. 2003). However, before a district court may hold a defendant liable for the
1
Because he did not actually object to the district court’s failure to make particularized
findings about his criminal conduct or the reasonably foreseeable loss, Mallady failed to
preserve this issue for appeal. Thus, the plain error standard applies. United States v. Spoerke,
568 F.3d 1236, 1244 (11th Cir. 2009). “Plain error occurs when (1) there is an error; (2) that is
plain or obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) that seriously affects the fairness, integrity or public reputation of the judicial
proceedings.” Id. at 1244-45 (internal quotation omitted). In plain error review, the defendant
bears the burden to prove his substantial rights were affected. United States v. Monroe, 353 F.3d
1346, 1352 (11th Cir. 2003).
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acts of others and the resulting losses, “the district court must first make
individualized findings concerning the scope of criminal activity undertaken by a
particular defendant. . . . Only after the district court makes individualized findings
concerning the scope of criminal activity the defendant undertook is the court to
determine reasonable foreseeability.” Id. (internal quotations and citations
omitted). Accordingly, a district court’s finding that a defendant knew he was a
member of a conspiracy is insufficient to attribute that defendant with all of the
conduct and losses of the conspiracy. See Hunter, 323 F.3d at 1320 (reversing and
remanding a district court’s sentencing determination because it failed to make
particularized findings regarding the criminal conduct of the defendants in relation
to the larger conspiracy).
Although the district court committed an error that was plain by not making
particularized findings concerning the scope of Mallady’s criminal activity,
Mallady has failed to show the error affected his substantial rights. Mallady knew
several other members of the conspiracy and had actual knowledge of the amount
of checks cashed by these individuals. Had the district court made particularized
findings about Mallady’s criminal activity, the district court would have retained
the discretion to find Mallady could have reasonably foreseen all of the criminal
conduct and losses from the counterfeit check-cashing ring. See Hunter, 323 F.3d
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at 1319-20. Additionally, even if the district court had found all of the losses were
not reasonably foreseeable, the district court retained discretion to sentence
Mallady above the advisory Guidelines range based on the § 3553(a) factors.
Accordingly, because Mallady failed to meet his burden to prove his substantial
rights were affected, the district court’s failure to make particularized findings
regarding Mallady’s criminal activity was not plain error.
II.
We review the reasonableness of sentences imposed under the advisory
sentencing guidelines under an abuse of discretion standard. Gall, 128 S. Ct. at
600. If the district court’s sentence is procedurally sound, we then evaluate
whether the sentence imposed by the district court is substantively reasonable and
achieves the purposes of sentencing under 18 U.S.C. § 3553(a). United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005). The burden of establishing
unreasonableness lies with the party challenging the sentence. Id. at 788.
Beyond challenging the district court’s procedural error, Mallady has made
no arguments as to why his mid-range Guideline sentence is substantively
unreasonable or fails to achieve the goals of sentencing. Thus, Mallady has not
met his burden of establishing the substantive unreasonableness of his sentence.
AFFIRMED.
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