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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11293
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00411-JDW-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IAN ONEIL BROWN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 19, 2017)
Before HULL, WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant Ian Brown appeals his 81-month total sentence, after pleading
guilty to falsely representing a social security number, aggravated identity theft,
and possession of a firearm by an illegal alien. On appeal, Defendant challenges
the procedural and substantive reasonableness of his sentence. After careful
review, we affirm.
I. BACKGROUND
According to the Presentence Investigation Report (“PSR”), in 1997,
Defendant, a citizen and national of Jamaica, began using the legitimately-issued
social security number of another individual named Dunn Wiltshire. Wiltshire
filed a police report in 2013, claiming that his identity had been stolen. The Social
Security Office of the Inspector General and the Department of Homeland Security
eventually determined that Defendant was responsible for the misuse of Wiltshire’s
identity. While conducting surveillance at a residence in Florida, which had been
identified as Wiltshire’s, investigators observed Defendant arrive at the residence
in a car registered to Shawn Anthony Canton.
It was later revealed that Defendant obtained a license in Canton’s name
with Canton’s social security number and a forged version of Canton’s birth
certificate. Defendant purchased the identities of Wiltshire and Canton for $1,000
and $4,000, respectively. Law enforcement officials subsequently searched
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Defendant’s residence and found among other things, birth certificates in Canton’s
and Wiltshire’s names, as well as a firearm.
Defendant subsequently pleaded guilty to falsely representing a social
security number, in violation of 42 U.S.C. § 408(a)(7)(B), aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1), and possession of a firearm by an
illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2).
In anticipation of sentencing, the probation officer prepared the PSR. The
PSR grouped Counts 1 and 3 separately. 1 As to Count 1 (falsely representing a
social security number), the PSR calculated a base offense level of 6, pursuant to
U.S.S.G. § 2B1.1(a)(2). Defendant received a 12-level enhancement under
§ 2B1.1(b)(1)(G), because the loss was more than $250,000 but less than $550,000.
Specifically, Defendant derived $511,176.37 of income earnings that he would not
have otherwise received without the fraud. Defendant also received two additional
enhancements not relevant to this appeal, resulting in an adjusted offense level of
22 as to Count 1.
As to Count 3 (possession of a firearm by an illegal alien), the PSR assigned
Defendant a base offense level of 24, pursuant to U.S.S.G. § 2K2.1. Because
Defendant did not receive any other enhancements or reductions, his adjusted
offense level was 24. Because the offense level for Count 3 was greater than the
1
Pursuant to U.S.S.G. § 2B1.6, Count 2 is exempt from grouping and requires a 24-month
sentence consecutive to any other sentence imposed.
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offense level for Count 1, the PSR used the offense level from Count 3 to calculate
the guideline range. With a 2-level multi-count adjustment and a 3-level reduction
for acceptance of responsibility, Defendant’s resulting total offense level was 23.
Based on a total offense level of 23 and a criminal history category of III,
Defendant’s guideline range was 57 to 71 months’ imprisonment. The PSR noted
that Defendant was also subject to a 24-month term of imprisonment as to Count 2,
to run consecutively to any other sentence imposed.
At the sentencing hearing, the district court sustained an objection Defendant
raised to the 12-level enhancement under § 2B1.1(b)(1)(G), which resulted in an
amended guideline range of 46 to 57 months’ imprisonment as to Counts 1 and 3.
Defendant asserted that a sentence of 46 months’ imprisonment, followed by the
consecutive 24-month sentence on Count 2, would adequately reflect the
seriousness of his crimes. The Government acknowledged Defendant’s acceptance
of responsibility, but stressed the seriousness of the offense and the impact that
Defendant’s crimes had on the victims. The Government asserted that a sentence
at the high end of the guideline range was necessary to reflect the seriousness of
the offense.
In addressing the 18 U.S.C. § 3553(a) factors, the district court stated in
relevant part:
The nature and circumstances of the offense have been alluded to by
counsel. This was a 15-year identity theft, a fraud perpetrated by the
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defendant without regard to the impact on these victims. While there
may not be any way to measure the financial loss to these victims, it is
not difficult to consider the financial stress, the turmoil, the confusion,
the sense of invasion of privacy that these victims must have and are
today experiencing.
...
This is a serious offense and I don’t mean to understate that in
any way. And I don’t think one can overstate it. Identity theft is
rampant. . . .
It sounds like you have a lovely [fiancée] and a good family.
You certainly have family support. And they are going to be hurt and
disadvantaged because of the sentence I impose. But that is your
doing, sir, not mine.
Consequently, the district court sentenced Defendant to a total sentence of 81
months’ imprisonment, consisting of a 57 month, within-guidelines range sentence
as to Counts 1 and 3, followed by the mandatory, consecutive 24-month term of
imprisonment on Count 2. This appeal followed.
II. DISCUSSION
Using a two-step process, we review the reasonableness of a district court’s
sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th
Cir. 2014). First, we determine whether a sentence is procedurally reasonable. Id.
“A sentence may be procedurally unreasonable if the district court improperly
calculates the Guidelines range, treats the Guidelines as mandatory rather than
advisory, fails to consider the appropriate statutory factors, selects a sentence based
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on clearly erroneous facts, or fails to adequately explain the chosen sentence.”
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).
After determining that a sentence is procedurally sound, we then examine
whether the sentence is substantively reasonable in light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) factors.2 Cubero, 754 F.3d at 892. The
party challenging the sentence bears the burden of showing that it is unreasonable.
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We will only vacate
a defendant’s sentence if we are “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) (quotation omitted).
A. Procedural Reasonableness
Defendant argues that the district court procedurally erred by relying on
factual findings that were not supported by any evidence. In particular, he asserts
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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that the Government did not present any evidence to show that both victims
suffered as a result of Defendant’s fraud.
We review the district court’s factual findings for clear error. United States
v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). However, because
Defendant did not challenge this factual finding before the district court, we review
his argument on appeal for plain error. See United States v. Johnson, 694 F.3d
1192, 1195 (11th Cir. 2012). We will notice plain error 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. (quotation omitted).
The Government must prove the facts relevant to sentencing by a
preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 156
(1997). The sentencing court’s factual findings may be based upon evidence heard
during trial, undisputed statements in the PSI, or evidence presented during the
sentencing hearing. United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007).
Although the district court is permitted to draw reasonable inferences from the
record, it must base its factual determinations on reliable and specific evidence, not
speculation. United States v. Creel, 783 F.3d 1357, 1359 (11th Cir. 2015); United
States v. Newman, 614 F.3d 1232, 1238 (11th Cir. 2010).
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Here, the district court did not commit plain error by finding that the harm
suffered by the victims rendered the offense sufficiently serious to warrant a
sentence at the high end of the guideline range. The PSR stated that Wiltshire filed
a statement in 2013, indicating that as a result of the identity theft (1) he had no
credit, (2) he was forced to move in with his parents, (3) the Internal Revenue
Service had investigated him, and (4) he tried to purchase a car in 2000 but was
denied due to having poor credit. Because Defendant did not object to these facts,
the district court was permitted to rely on them to support its finding. See Smith,
480 F.3d at 1281.
Although the Government did not present any evidence regarding the harm
suffered by Canton, Defendant has not shown that the district court relied on
speculation in crafting his sentence. Indeed, the record suggests that the district
court based its sentence on the cumulative suffering of the victims and not
speculation regarding Canton. Moreover, the undisputed facts demonstrating the
impact the fraud had on Wiltshire adequately supported the district court’s finding
that the harm suffered rendered the offense serious. See Creel, 783 F.3d at 1359;
Newman, 614 F.3d at 1238. Accordingly, Defendant has not demonstrated that the
district court plainly erred by relying on the impact of Defendant’s crimes in
determining an appropriate sentence.
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B. Substantive Reasonableness
Defendant argues that his sentence was substantively unreasonable because
it was greater than necessary to accomplish the goals of sentencing. We disagree.
At the outset, Defendant’s sentence was within the guideline range. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining that, although we do
not presume that a sentence within the guideline range is reasonable, we typically
expect it to be reasonable). Moreover, his 57-month sentence was well below the
statutory maximum sentences of 5 years on Count 1 and 10 years on Count 3, and
his consecutive 24-month sentence on Count 2 was required by statute. See 42
U.S.C. § 408(a)(7)(B); 18 U.S.C. §§ 922(g)(5), 924(a)(2), 1028A(a)(1); see also
Gonzalez, 550 F.3d at 1324 (explaining that a sentence that is below the statutory
maximum is an indicator of reasonableness).
Further, as noted by the district court, Defendant’s sentence was supported
by several § 3553(a) factors, including the nature and circumstances of the offense,
the seriousness of the offense, the need for deterrence, and the need to promote
respect for the law. See 18 U.S.C. § 3553(a)(1)-(2). Specifically, the district court
referenced the 15-year duration of the fraud, the harm suffered by the victims, the
effect the sentence would have on Defendant’s family, and the severity of identity
theft.
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Although Defendant argues that the mitigating factors supported a sentence
at the low end of the guideline range, the district court was permitted to conclude
that other factors weighed more heavily in favor of a sentence at the top of the
guideline range. See United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(“The weight to be accorded any given § 3553(a) factor is a matter committed to
the sound discretion of the district court. . . .” (quotations omitted)).
Finally, we are not persuaded by Defendant’s argument that the district
court’s imposition of a sentence at the high end of the guideline range defeated the
purpose of sustaining Defendant’s objection to the 12-level enhancement
under § 2B1.1(b)(1)(G). That the district court sustained Defendant’s objection
because the precise amount of loss could not be ascertained did not mean that the
district court was not permitted to impose a sentence at the top of the amended
guideline range. In short, the record shows that the district court considered and
weighed the conflicting factors in making its sentencing determination and
Defendant has not met his burden of showing that the district court arrived “at a
sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” Irey, 612 F.3d at 1190 (quotations omitted).
For the foregoing reasons, Defendant’s sentence is AFFIRMED.
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