[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16054 ELEVENTH CIRCUIT
AUGUST 10, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00025-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY HUTCHESON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 10, 2010)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Gary Hutcheson appeals his total sentence of 60-months’ imprisonment,
imposed above the applicable guideline range of 41-51 months, following his
guilty plea to 5 counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and 5
counts of money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I) and 2.
The convictions arose out of a scheme where Hutcheson and a codefendant
claimed to be placing investors’ money into a hedge fund when actually they
converted much of the money for their own personal use.
On appeal, Hutcheson argues that his total sentence was procedurally
unreasonable because the district court failed to give an adequate explanation for
the upward variance. He also submits that his total sentence was substantively
unreasonable because the sentence was greater than necessary to comply with the
purposes of § 3553(a)(2), and the court did not properly consider the § 3553(a)
factors. In addition, he argues that the restitution order of $1,618,000 should have
been reduced by $576,000 in legitimate trading losses.
We find no reversible error. At the sentencing hearing the district court
explicitly stated that it considered the § 3553(a) factors, and adequately explained
why a sentence above the top of the applicable guideline range was necessary to
accomplish the goals of the statute. Therefore, the sentence was procedurally
reasonable. Under the totality of the circumstances, Hutcheson’s sentence was
substantively reasonable because it was not greater than necessary to achieve the
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purposes of § 3553(a), and the court considered the § 3553(a) factors. Pugh, 515
F.3d at 1191.
With reference to restitution, based on a review of the record, the district
court did not err in finding that the trading losses were a direct result of
Hutcheson’s criminal conduct in the course of the entire scheme to defraud
investors. Accordingly, the court properly determined that the trading losses,
totaling $576,000, should be included in the restitution.
AFFIRMED.
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